Copy of Constitution Text

The building known as Darnley Hall Pty Ltd (‘Darnley Hall’) is a company title building, which means that the company, Darnley Hall Pty Ltd (ACN 000 099 034) is the legal owner of the entire building located at 12 Onslow Avenue, Elizabeth Bay and the land with the title reference 2/176006, including each home unit in the building. The members of Darnley Hall own shares in the Company. The ownership of a group of shares entitles a Member to various rights and imposes various obligations on the Member. 

This Constitution sets out the objectives and powers of the Company, as well as the basic rights, obligations and rules for living in Darnley Hall. Together with the House Rules of Darnley Hall, the documents provide a method of regulating life in Darnley Hall for the enjoyment of all residents. Compliance with the Constitution and House Rules will result in shared values and behaviour that is advantageous to all Members of Darnley Hall. Essentially, the Constitution and House Rules have the primary objective of protecting the Company and its Members and thereby protecting the value of the entire building. 

The Directors of the Company are elected by the Members at each Annual General Meeting. The Directors are responsible for managing the affairs of the Company, and are empowered to do all things that the Company can do under its Constitution subject to the Corporations Act 2001 (Cwlth). The Directors of Darnley Hall, like Directors of companies in general, have a duty to act in the best interests of the whole company and in accordance with the Constitution. 

1.1. The name of the Company is Darnley Hall Pty Ltd. 

1.2. The objects of the Company are to control, manage, operate and administer the Property as a block of residential units for the benefit of its Members. 

1.3. The Company is a proprietary company limited by share

2.1. In this Constitution:

(a) “Constitution” means this Constitution, and any of the replaceable rules stipulated by the Corporations Act 2001 (Cth) that apply to the Company;

(b) “Company” means Darnley Hall Pty Ltd;

(c) “Common Area” means any part of the Property that is not comprised in a Home Unit;

(d) “Corporations Act” means Corporations Act 2001 (Cth); 

(e) “Cosmetic Work” means:

(i) installing or replacing hooks, nails or screws for hanging paintings and other things on any internal walls of a Home Unit or the inner surface of perimeter walls of a Home Unit;

(ii) installing or replacing handrails any internal walls of a Home Unit or the inner surface of perimeter walls of a Home Unit;

(iii) painting any internal walls of a Home Unit or the inner surface of the ceiling or any perimeter walls of a Home Unit;

(iv) filling minor holes and cracks in an internal walls of a Home Unit or the inner surface of the ceiling or any perimeter walls of a Home Unit;

(v) laying carpet on the upper surface of any floor in a Home Unit;

(vi) installing cupboards or built-in wardrobes in a Home Unit;

(vii) installing internal blinds and curtains in a Home Unit;

(viii) installing light fixtures within a Home Unit which are non-recessed; 

(ix) any other work determined by the Directors from time to time to be Cosmetic Work;

(f) “Directors” means all directors of the Company;

(g) “Home Unit” means a cubic space on the Property that is identified in clause 3.2 and is bounded by:

(i) the upper surface of any floor;

(ii) the inner surface of any perimeter wall; 

(iii) the under surface of any ceiling; and

includes any fixture or fitting that is attached or annexed to any part of the Home Unit;

(h) “Interest Rate” means a rate that is ten per-cent (10%) per annum, or such or such other amount as an Owners Corporation of a strata scheme is entitled to charge on unpaid contributions under the Strata Schemes Management Act 2015 (NSW);

(i) “Levy” means a levy made under clause 4.1 of this Constitution;

(j) “Levy Contribution” means any contribution that a Member is required by clause 4.2 of this Constitution to make to a Levy made under clause 4.1 of this Constitution;

(k) “Major Renovations” means any renovation, repair or works other than a Cosmetic Work, including:

(i) renovating a kitchen, bathroom or laundry within a Home Unit;

(ii) installing or replacing wood or other hard floors within a Home Unit;

(iii) installing or replacing wiring, cabling, power or access points within a Home Unit;

(iv) work involving reconfiguring internal walls within a Home Unit; and

(v) any other determined by the Directors from time to time to be Major Renovations;

(l) “Member” means a holder or joint holder of a Share Group. A joint Share Group is entitled to one (1) vote. Neither holder of the Share Group may appoint the other holder as an alternate director; 

(m) “Percentage of Issued Capital” means, in respect of each Member, the percentage set opposite that Member’s Share Group in clause 3.2;

(n) “Property” means 12 Onslow Avenue, Elizabeth Bay NSW 2011 with title reference 2/176006;

(o) “Rules” means any rules, regulations or by-laws issued by the Directors under clauses 7.1 or 9.2 from time to time; and

(p) “Share Group” means any of the groups of issued shares in the Company referred to in clause 3.2.

2.2. In this Constitution, unless the contrary intention appears, the singular includes the plural and the plural includes the singular. 

3.1. The issued capital of the Company consists of 31,500 fully paid ordinary shares.

3.2. The issued capital of the Company is divided into the Share Groups set out in the table below. 

3.3. The table shown in clause 3.2 shows the Share Numbers owned by Members of Darnley Hall Pty Ltd. The Share Numbers provide their owner with the right to exclusive use and occupation of the Home Unit associated with the Share Numbers. The respective rights to the exclusive use and occupation conferred by clause 3.2 may be exercised by the respective owner or owners for the time being of the respective groups of shares or subject to the approval of the Directors by his or her tenants. 

3.4. The right conferred on each Member under clause 3.3 is a personal right only and does not confer on the Member any proprietary right in or over the Property, any part of the Property or the Home Unit. This personal right is a right to occupy in accordance with clause 3.2 and 3.3 of this Constitution. 

4.1. The Directors may at any time, in their sole discretion, make a Levy on the Members of such amount as the Directors consider to be sufficient to permit the Company to meet its actual or expected liabilities, incurred or to be incurred, in the management and ownership of the Property.

4.2. In the event that the Directors make a Levy on the Members under clause 4.1, each Member will be required to pay a Levy Contribution of such part of the Levy as the Directors, acting reasonably, decide that the relevant Member must pay.

The Directors have a right to levy a member for a charge that has been incurred by the company solely on behalf of that Member or as a result of that Member’s neglect or failure to make a payment to the Company or failing to comply with a notice issued by the Company. In exercising this power, the Directors will act only for a proper purpose and in the best interests of the Company. 

4.3. Without limiting clause 4.2, each Member will usually pay a Levy Contribution to the Company that is calculated by dividing the total amount of the Levy by that Member’s Percentage of Issued Capital within twenty-eight (28) days of the date on which that Member is given notice of the Levy in accordance with clause 4.4.

4.4. In the event that the Directors make a Levy on the Members under clause 4.1, the Directors must, as soon as is reasonably practicable, give to each Member a notice which:

(a) identifies the amount of the Levy Contribution which the Member is required to pay; and

(b) informs the member that the Member must pay the Levy Contribution within twenty-eight (28) days of the date of the notice.

4.5. Without limiting clause 4.1, the Directors may at any time in their sole discretion make a Levy on the Members under clause 4.1 to establish:

(a) an administrative fund to permit the Company to meet its actual or expected liabilities incurred or to be incurred in the day to day management of the Company and the Property; 

(b) a capital works fund to permit the Company to meet its actual or expected liabilities incurred or to be incurred for the renewal, repair or replacement of any part of the Property; or

(c) a special fund to permit the Company to meet its actual or expected liabilities incurred or to be incurred in the undertaking of specified major works.

4.6. The Directors may at any time in their sole discretion cancel a Levy or reduce the amount of a levy, and may refund or credit any Levy Contribution in respect of such a Levy made by a Member. 

5.1. Each Member must keep the Home Unit set opposite that Member’s Share Group in clause 3.2 in a good state of repair and cleanliness and shall make good from time to time all wear and tear.

5.2. No Member may use the Home Unit set opposite that Member’s Share Group in clause 3.2 for any purpose other than as a private residence or a private residence containing a home office.

5.3. Each Member must personally bear the cost of:

(a) any utility or service that is supplied to that Member’s Home Unit for the benefit of the Member or any invitees to or other occupants of that Member’s Home Unit;

(b) any council rates or charges in respect of that Member’s Home Unit; and

(c) any other cost which the Company resolves each member must personally bear by ordinary resolution passed in a general meeting. 

5.4. Each Member must: 

(a) comply with the Rules; 

(b) take all reasonable steps to ensure that any invitees to that Member’s Home Unit have been made aware of the Rules; and

(c) take all reasonable steps to ensure that any invitees who reside in that Member’s Home Unit for greater than five (5) days comply with the Rules.

5.5. Each Member must indemnify the Company for any loss or damaged suffered by the Company as a result of or in connection with:

(a) any act or omission by the Member in or in respect of that Members Home Unit;

(b) any act or omission by any invitees to that Member’s Home Unit; and

(c) without limiting clause 5.5(a), any works, repairs or renovations carried out by or at the instruction of the Member.

5.6. Each Member must refrain from using the Home Unit set opposite that Member’s Share Group in clause 3.2 or any part of the Common Area:

(a) in any manner or for any purpose that causes a nuisance or hazard to any person occupying any other Home Unit or using any part of the Common Area or that interferes unreasonably with any other person’s use or enjoyment of another Home Unit or any part of the Common Area; and

(b) in any manner that unreasonably obstructs any part of the Common Area. 

6.1. The Company must keep the Common Areas in a good state of repair and cleanliness and shall make good from time to time all wear and tear to the Common Areas.

6.2. The Directors, or any person authorised by the Directors, may, upon the provision of reasonable notice to the Member, enter a Home Unit to:

(a) effect any work necessary, in the reasonable opinion of the Directors, in order to repair or renew any part of the Common Areas;

(b) effect any work necessary, in the reasonable opinion of the Directors to remove or mitigate any risk:

(i) to the health and safety of Members and residents on the Property;

(ii) of damage to any part of the Common Areas or any other Home Unit

(c) test any fire safety device or installation, or inspect any electrical, gas or plumbing installation, for the purpose of ascertaining whether the installations are compliant with any law; or

(d) determine whether a Member has breached one of his or her obligations under clause 5. 

6.3. The Directors may exercise the Company’s power under clause 6.2: 

(a) without providing notice to the Member who owns the Share Group to which the Home Unit relates, in circumstances where the Directors consider there to be an imminent risk:

(i) to the health and safety of Members and residents on the Property;

(ii) of damage to any part of the Common Areas or any other Home Unit; and

(b) in all other cases, only after having provided adequate and reasonable notice to the Member who owns the Share Group to which the Home Unit relates.

7.1. Without limiting clause 9.2, the Directors may from time to time make, alter or revoke Rules regulating the leasing and licensing of Home Units by members. 

7.2. A Member must not lease, licence or otherwise allow a third party to occupy the Home Unit set opposite that Member’s Share Group in clause 3.2: 

(a) otherwise than in accordance with Rules issued by the Directors under clause 7.1; or

(b) in the event that no such Rules are issued, without the consent in writing of the Directors and subject to such terms and conditions as the Directors see fit to impose.

7.3. The Directors may only withhold consent, under clause 7.2(b), or any rules issued by the Directors pursuant to clause 7.1, on reasonable grounds. 

7.4. In the event that a Member leases, licences or otherwise allows a third party to occupy the Home Unit set opposite that Member’s Share Group in clause 3.2, the Member must: 

(a) take all reasonable steps to ensure that the lessee, licensee or occupant has been given a copy of the Rules; 

(b) taken all reasonable steps to ensure that the lessee, licensee or occupant has signed the Licence to Occupy; 

(c) take all reasonable steps to ensure that lessee, licensee or occupant complies with the Rules; and

(d) indemnify the Company for any loss or damaged suffered by the Company as a result of any act or omission of a lessee, licensee or occupant.

7.5. Nothing in clause 7.2 prevents a Member from allowing a member of his or her immediate family or a person with whom he or she is in a domestic relationship to occupy the Home Unit set opposite that Member’s Share Group in clause 3.2. 

8.1. Without limiting clause 9.2, the Directors may from time to time make, alter or revoke Rules regulating the carrying out of repairs, improvements, renovations and maintenance work by Members. 

8.2. Each Member may carry out Cosmetic Work on the Home Unit set opposite that Member’s Share Group in clause 3.2 and any part of the Common Area that is physically connected to any part of that Home Unit, other than for repainting the external walls, windows, or doors of the external areas within each lot. without the consent of the Directors. 

8.3. A Member must not carry out Major Renovations to the Home Unit set opposite that Member’s Share Group in clause 3.2 and any part of the Common Area connected to that Home Unit without the consent in writing of the Directors and subject to such terms and conditions as the Directors see fit to impose. Prior to reaching a decision on the application the Directors will consult Members whose apartments are contiguous to that of any Members who seek approval for any major renovation. 

8.4. The Directors may require any Member who carries out any repairs, improvements, renovations and maintenance work of any kind on any Home Unit or part of the Common Area otherwise than in accordance with clauses 8.2 and 8.3 to take such steps as the Directors see fit to rectify the unauthorised work and return the Home Unit or Common Area to the condition that it was in prior to the unauthorised work. 

8.5. Each Member who carries out any repairs, renovations and maintenance work of any kind on any Home Unit or part of the Common Area:

(a) indemnifies the Company for any loss or damaged suffered by the Company as a result of the repairs, renovations and maintenance or anything done or omitted to be done in connection with the repairs, improvements, renovations and maintenance work; and

(b) warrants that the repairs, improvements, renovations and maintenance work will be carried out in a competent and proper manner.

8.6. Each Member when carrying out Cosmetic Work or Major Renovations must personally bear the cost of carrying out any Cosmetic Works or Major Renovations. 

8.7. Each Member carrying out Cosmetic Work or Major Renovations must indemnify the Company and each of its Directors and Members against any loss or damage arising from or associated in any way with the Cosmetic Work or Major Renovations, including loss or damage associated with:

(a) the skill or care with which the Cosmetic Work or Major Renovations were carried out;

(b) the materials used to carry out the Cosmetic Work or Major Renovations;

(c) a failure of the Cosmetic Work or Major Renovations to comply with any development approval or law;

(d) any damage caused to any part of the Company’s Property during or as a result of the Cosmetic Work or Major Renovations.

9.1. The Directors may exercise all the powers of the Company except any powers that this Constitution or any law requires the Company to exercise in general meeting.

9.2. Without limiting clause 9.1, the Directors may from time to time make, alter or revoke Rules regulating the operation and management of the Company and the Property. 

9.3. The Directors may from time to time confer on a single director, or a sub-committee of directors, any of the powers that the Directors can exercise, subject to such conditions as the Directors think fit. 

9.4. The office of a Director will automatically be vacated if the Director:

(a) becomes bankrupt or enters into a compromise with his or her creditors;

(b) in the reasonable opinion of the other Directors, loses his or her legal capacity, including by reason of a mental or cognitive illness;

(c) ceases to be a Member of the Company;

(d) is absent from 3 consecutive meetings of the Directors without special leave of absence from the Directors and the Directors as a result declare his or her office to be vacant;

(e) is convicted of a serious indictable offence; or

(f) is prohibited from being a Director by law. 

9.5. The Company in general meeting may by ordinary resolution:

(a) appoint a person as a Director;

(b) remove a Director from office; and

(c) appoint another Director in his or her place.

9.6. Subject to this constitution, the Company in general meeting may appoint new Directors, and may increase or reduce the number of Directors in office, and may also determine in what rotation such increased or reduced number is to go out of office.

9.7. The Company must at all times have at least two (2) Directors and no more than seven (7) Directors. 

9.8. A Director who is eligible to vote at a Directors’ meeting may appoint any person who is approved by the majority of the other Directors as an alternate Director to exercise some or all of the director’s powers for a specified period. The appointment must be made in writing and will not be valid until it is approved by the other Directors. 

9.9. An alternate Director appointed under clause 9.8 may exercise all the powers and rights of his or her appointor in the absence of the appointing Director and shall be subject to the same terms and conditions affecting the appointing Director.

9.10. A joint holder of a Share Group must resolve that only one holder is nominated as Director. The holder nominated as Director must permanently hold that position and cannot alternate with the other Member named in the joint Share Group. 

9.11. If the number of Directors falls below the minimum fixed by clause 9.7, the remaining Director or Directors may not exercise the powers of the Directors except:

(a) in the case of an emergency;

(b) to cause the Company to comply with a mandatory legal requirement; or

(c) to call a general meeting of the Members of the Company for the purpose of electing further Directors. 

9.13. To the extent permitted by law, every Director and former Director of the Company shall be indemnified out of the funds of the Company against all costs, expenses and liabilities incurred as such a Director. 

9.14. To the extent permitted by law, the Company may resolve to pay to insure its Directors against all costs, expenses and liabilities incurred as such a Director.

9.15. All acts done by a Director, a Directors’ meeting or a committee of Directors shall, even if it is discovered afterwards that there was a defect in the appointment, voting or continuance in office of any Director, be as valid as if every Director:

(a) had been duly appointed;

(b) had continued in office; 

(c) was duly qualified to be a Director; and

(d) had been entitled to vote.

9.16. The Directors may at any time appoint any person as a Director to fill a casual vacancy. Any Director so appointed must have his or her appointment confirmed by resolution passed at the next general meeting of the Company held after the appointment is made. If the appointment is not confirmed at that meeting, the person ceases to be a Director of the company at the end of that meeting. 

10.1. Unless the Directors determine otherwise, the quorum for a Directors’ meeting is two (2) Directors. That quorum must be present at all times during the meeting.

10.2. A Directors’ meeting may be called by a Director giving reasonable notice individually to every other Director in writing.

10.3. A Directors' meeting may be called or held using any technology consented to by all the Directors. The consent may be a standing consent. A Director may only withdraw his or her consent within a reasonable period before the meeting.

10.4. The Directors may elect a Director to chair their meetings. The Directors may determine the period for which the Director is to be the chair. The Directors must elect a Director present to chair a meeting, or part of it, if a Director has not already been elected to chair the meeting, or a previously elected chair is not available or declines to act, for the meeting or the part of the meeting.

10.5. A resolution of the Directors may be passed by a majority of the votes cast by Directors entitled to vote on the resolution. 

10.6. Except as provided under clause 10.5, each Director is entitled to cast one vote on each resolution put at a Directors’ meeting.

10.7. A Director is not entitled to be present at any Directors’ meeting or vote on any resolution unless all sums presently payable by the Director in respect of a Share Group held by the Director have been paid, including any Levy Contributions.

10.8. The Directors may pass a resolution without a meeting being held if all the Directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. 

10.9. The Directors must cause minutes to be kept of proceedings and resolutions of Directors' meetings.

10.10. A Director of the Company who has a material personal interest in a matter that relates to the affairs of the Company must not:

(a) vote on a matter or transaction that relates to that interest; and 

(b) be present during any part of a Directors’ meeting at which a matter or transaction that relates to that interest is discussed

unless he or she is permitted to do so under clause 10.11.

10.11. A Director of the Company may vote on a matter or transaction that relates to a material personal interest, and be present during part of the Directors’ meeting at which a matter or transaction that relates to that interest is discussed, if either:

(a) the Director disclosed the nature and extent of the interest under s 191(1) of the Corporations Act; or

(b) the interest was exempt from disclosure under s 191(2) of the Corporations Act; and

(c) the other Directors resolve to allow the Director to vote or be present, as the case may be. 

10.12. A Director who has complied with s 191(1) of the Corporations Act, by firstly disclosing the nature and extent of the interest and secondly, the other Directors have resolved that the Director could vote or be present during the director meeting of the disputed issue, may keep a benefit received by him or her under a transaction of the Company in which he or she had a material personal interest. 

10.13. Nothing in clause 10.10,10.11 and 10.12 prevents a Director from earning an income or fee from activities that they have undertaken for the Company which does not arise from their role as a Director.  

11.1 The Company must cause a register of Members to be kept in accordance with the Corporations Act.