Herald Legal acted for the plaintiffs in successfully challenging the disputed ASCC election. The Court found substantive defects and supported a fresh election under a receiver. In Chen v Shaanxi Chamber of Commerce [2021] NSWSC 337, the NSW Supreme Court examined defects in an election conducted by the Australian Shaanxi Chamber of Commerce (ASCC) on 17 August 2019. Sackar J found that three defects materially impaired eligible members’ participation. This article explains the decision and its practical lessons for incorporated associations, chambers of commerce and community organisations.
1. Start with the constitution
An association’s constitution governs its meeting notices, election arrangements and members’ rights. In ASCC, clause 12 recognised voting and election rights; clauses 20(6) and 33(6) required relevant elections at the AGM; and clauses 43 and 59 governed notice and service. Procedures should be checked against the particular rules before an election is called.
Judgment references: [35], [41]–[42], [50]–[52]
2. Give complete notice within the required period
ASCC clause 43(1) required notice specifying the place, date, time and business of the general meeting at least 14 days in advance in the circumstances described. The original notice omitted the venue, saying it would be determined later. A supplementary notice gave the venue less than five days before the AGM. The Court held that this impaired members’ ability to plan attendance and potentially excluded valid votes.
Judgment references: [34]–[39]
3. A WeChat group is not automatically a valid service address
ASCC clause 59 provided for personal delivery, prepaid post or electronic transmission to an address specified by the member. There was no evidence that members had nominated WeChat for formal notice. The group was used socially and not all members belonged to it. Some therefore could not receive the election notices. The decision does not impose a blanket prohibition on electronic notices; compliance depends on the constitution, nominated addresses and effective service to eligible members.
Judgment references: [40]–[48]
4. Do not improvise online or advance voting
The election notice allowed online voting between 10 and 17 August 2019, and minutes referred to email or postal votes. Yet the constitution required the relevant ballots at the AGM and set out meeting voting mechanisms. The Court stressed the value of participation and informed voting after considering candidates and disclosed interests. The ruling concerns the particular constitutional breach, not a universal ban on electronic voting.
Judgment references: [49]–[58]
5. Distinguish substantive injustice from a technical irregularity
The Court treated the three defects as substantive because they interfered with eligible members’ ability to take part in the democratic process. The key question is not merely whether a procedural step was missed, but whether the irregularity materially affected notice, nominations, deliberation or voting rights.
Judgment references: [59]
6. A court can supervise a fresh election
The Court recognised jurisdiction to intervene in appropriate association governance disputes and to appoint a receiver to facilitate a fresh election. Even though the participating defendants ultimately did not oppose the declaration and receiver, the Court required an independent evidentiary and legal basis for declaratory relief. It concluded that a receiver was appropriate in the association’s interests.
Judgment references: [11]–[15], [59]–[60]
Practical election checklist
Before an election, verify the constitution and member register, send complete notices to every eligible member using permitted methods, follow nomination and voting rules, and retain reliable records of service, meeting proceedings and counting. If a dispute arises, preserve notices, member lists, WeChat messages, nomination forms, ballots and minutes and obtain advice on the relevant rules and remedies.
Scope and important qualification
The 14-day notice period and service methods discussed above came from the ASCC constitution. They should not be assumed to apply identically to every association. Other jurisdictions, constitutions and organisational forms may differ.
The published judgment expressly identifies Herald Legal as solicitors for the plaintiffs. Our clients successfully challenged the disputed election: the Court found three substantive defects and made orders enabling a fresh election under a receiver. This describes the Court’s declaratory and remedial orders rather than suggesting counsel themselves invalidated the election. This article is general legal information, not advice for a particular dispute.