Archive for April, 2011

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April 29, 2011

D’s latest.

Mrs Carey’s Concert

April 24, 2011

By the oddest of chances, I have come across some publicity for this film, which premiered at the Adelaide Film Festival earlier this year and which apparently opens in Palace cinemas in Sydney at least this Thursday 28th.

It’s by Bob Connolly and Sophie Raymond. I’ve seen most of the films made by Connolly and his then wife, Robin Anderson, (she died in 2002) pretty much when they came out, in the cinema even, except perhaps for “Rats in the Ranks” which shot to small screen fame and passed me by on the big one. I was almost in “Facing the Music” in that I was around Sydney Uni music department (as it then was) for some test shooting the year before they started filming in earnest. I didn’t make the cut, but I knew pretty well all of the people “portrayed” (by themselves through the filmmakers’ eye) in the film about the course of the next year or so.

Mrs Carey’s concert focuses on the 18 months it takes Karen Carey, director of music at MLC School, Burwood, to put together the big biennial concert which the school music department puts on at the Sydney Opera House Concert Hall. It’s clear there will be human drama a-plenty, but ultimately a heartwarming finale and with any luck no-one will have been too seriously injured in the making or displaying of it etc.

It deals with a world I know quite well as well as some people I either know or know of, so the film will have a particular interest for me. I’m also keen to see how Mr Connolly manages to keep the heartwarm factor within the bounds of good taste.

Mrs Carey has been director of music at MLC for over 20 years. She’s definitely made a mark there and by all reports a good mark. Some of the publicity I saw described MLC as an elite school, I think one went so far as to say “extremely elite.” Certainly, that music department is pretty elite (or at least it scrubs up very well on the few clips I have seen/heard). I doubt if any state school [possible exception, a music specialist school] in Australia can run a music department at the standard of MLC Burwood’s. I think that’s what the commentators were grappling with, at least in passing. (State Schools do have some better better inter-school musical things going on than individual private schools.)

At one point in the film, Mrs Carey is discussing a girl who has in some way fallen from or seems at risk of falling from grace. “She’s not a bad person,” Mrs Carey says. “No one who plays [instrument redacted so as to not spoil plot] so well can really be a bad person.” – I feel a bit the same about socially elite [ie, private] schools which have really good music departments.


April 20, 2011

There’s a great offer going from Musica Viva: 3 concerts, best available seating, for the remainder of the main subscription series for $120 all up. I received the brochure on Friday.

Just the night before I’d heard the Eggner Trio on the radio from Adelaide playing Haydn, Munro (well, I missed that because I was cooking dinner) and Saint-Saens.

I snapped the offer up (there wasn’t even one of those horrible credit card booking fees!) to hear the Eggners on Monday, Stephen Hough in October and Sabine Meyer and the Modigliani String Quartet in November. The fellow on the phone told me that tickets were a bit tight for Sabine. I’d anticipated that and I would have been quite happy to take the Goldner String Quartet and Mr Munro instead. (I’m piano partial. Nothing wrong with the other choices: Genevieve Lacey; the Brentano Quartet – although strangely I still find myself intimidated by the prospect of a string quartet, this is weird because it is the prospect I baulk at rather than the actual experience, which is never as intimidating as I somehow thought it would be.)

I couldn’t tell from the website and rather thought I would hear the Eggners’ program 2 on Monday, given that it was their second Sydney concert, but it turned out to be the same program they had played in Adelaide. I was happy to hear the S-S (opus 92 – second trio) again.

I even adapted to a 7pm concert without going home for a nap first.

Two odd things happened.

In the amiable second movement (you could call the opening as the Eggners played it, on the gentle side of Allegretto, “Sunday in the park with Camille”) the cellist’s string broke. They all went off stage whilst he changed it. I expected them to start the movement again but – No! – they just started from the beginning of the latest turbulent episode in the middle. I think that is just a bit slack, even if people have got trains to catch. I doubt if it was deliberately slack, because they know the music well and are right in the middle of it, but after quite a long pause for the string replacement the audience deserved to get the movement whole.

The other thing was that I was conscious of a peculiar crackling noise which I suspected was emanating from my neighbour. I only heard it sometimes, and funnily enough (I was upstairs at the side) when I turned away from her to face the stage. And then I heard something which sounded like that hissing sound which you get from loudspeakers. Finally, some time in the fourth movement of the S-S, the penny dropped: it was gas escaping from the imperfectly-screwed-down top of her bottle of effervescent mineral water which she intermittently sipped from and in between held in front of her with her program and other paraphernalia. The changes in sound arose from rearrangements of the position of the bottle and variations in replacement of the bottle top. It must have been a very local sound, especially the crackling, and may even have projected quite directionally – which accounts for why I only heard it when my head was at a certain angle.

I’ve encountered all manner of odd and distracting noises, but this was definitely a first for me.

One Night of the Year

April 19, 2011

Last week, for D’s birthday, to the Sydney Theatre to see the Sydney Dance Company.

In previous years, we’ve been to the ballet.

This year, when I suggested either ballet or the dance company, D chose the latter. Too soon to go to a balletic version of Madame Butterfly when we’d only just seen the opera. D has slightly schizophrenic taste. If it’s ballet, he wants it to be a traditional work performed by the book. It it isn’t that, he much prefers modern dance.

At the box office (a last minute/day-before cycle down to Walsh Bay) I learnt that the only pairs of seats available were $60 or $40 each. The $40 ones (upstairs at the side) were actually closer and arguably better. D said he’d take the closer ones. He’d seen the raunchy publicity shots and thought there was a chance of some anatomy. “I want to see the details“, he said nudge-nudgingly. Call me cheap, but I’m all for this modern dance caper!

The vantage point was good and we missed very little on stage (apart from the hoped-for details, which didn’t live up to the publicity). The only disadvantage was an extremely bright exit lamp which distracted us, especially when the stage was less well lit.

I can’t say much intelligent about dance. The first half, Jacopo Godani’s Raw Models was techno-ish with a specially-composed digital score by “48nord,” a German duo who in the program notes are described as “a formation for experimental electro acoustic music.” I enjoyed this piece most (dancing and music) when things started to get a bit funky and the dancing responded to that.

The second half was Land Forms, choreographed by Rafael Bonachella, with music specially composed by Ezio Bosso, who played it as pianist in an amplified ensemble with violin, cello and, at the end, Katie Noonan singing. A lot of the music was ostinato-based (there was a kind of C minor “Heart and soul” thing going at one stage) worked out with varying textures and patterns. It wasn’t particularly delicate or subtle or even intricate, and there were a few moments where I cringed at a bit of coarse pianism, but it was very effective.

The music and the choreography were more lyrical and flowing than in the first half. Towards the end there was a striking lighting change which cast the whole stage in a kind of dappled chequerboard pattern. On one level it was a simple idea, but of course it depended for its effect on where it fell in the work as a whole, including in the arc of moods which the music and the dancing worked through. At the end, rain fell. Once that happens, you know the dancing will have to stop soon, if only for safety reasons.

The audience was younger than that which the ballet attracts, with a higher quotient of (from my perspective) attractive and rather funky younger gay men. That’s partly the art form and its following, but the ticket prices must help. The flip side of the ticket prices is that generally the dance company works these days on recorded music alone – the live musicians in the second half were a special treat. For my money, it was palpable how the live music drew the audience in to a rapt kind of attention in the second half. Maybe it wasn’t really palpable, but sitting up on the side balcony I had a special sense of the warmth of shared engagement which can give live performance its particular thrill. I was heartwarmed, and part of that heartwarming was the feeling that others were, too, with me.

We are social beasts, after all.

Hungarian Rhumba

April 15, 2011

On Sunday to hear the Sydney Omega Ensemble at the Opera House.

The weather was horrible and there was no avoiding a drenching at the last dash from the colonnades of the Toaster building, owing to construction work blocking the usual entrance to the sheltered concourse beneath. On the way I passed bins overflowing with discarded clear-plastic rain ponchos, sold to Sunday revellers foolish enough to have ventured out, perhaps to watch the triathlon which had just about closed the city down earlier that day.

It was my first time to the Utzon Room. I was last there when it was the Reception Hall, accompanying someone for a movement of one of the Strauss horn concerti for a Sydney Eisteddfod section in about 1990. The picture above (pinched from the SOH site) shows what in word-processing terms might be called the landscape layout of the room. I’m sure that back then the hall set up was “portrait” with the performers at the end where the photo has been taken from.

On a sunny day, the view out of the window would be brilliant. That’s what everyone was saying, because on Sunday it wasn’t, though as the light faded there was some charm as various flashing lights assumed prominence.

The program was:

Mozart: Sinfonia Concertante K. 364
Stanhope: Omega Dances
Dohnányi: Sextet in C major Op. 37

The Mozart is for a string sextet (in this case, 2 violins, 2 violas, cello and double bass). The Stanhope, a newly commissioned work, was for the same instrumentation as the Dohnányi: piano quartet plus horn and clarinet or, as Paul Stanhope puts it, string trio plus piano, horn and clarinet. That’s a kind of post-Brahmsian chamber group (thinking here of his clarinet and horn trios as a guide to moving beyond the core piano and string ensembles).

The concert was comfortably but not capaciously attended – I’d say about half were friends and relatives. The ensemble may have had a bigger audience for the free performance of the Dohnányi a month earlier at the Eugene Goossens Hall Joan Sutherland Performing Arts Centre out at Penrith for ABC Classic FM. (If it was at the EG Hall they would certainly have had. I don’t know what numbers those concerts draw out West.)

I probably sat too close for the Mozart, or else Emily Long was exhibiting a bit of leaderitis – she always seemed to get oppressively assertive, especially above the stave. That is a perennial dilemma for first violins in string chamber ensembles. Generally their part is written to be predominant and the leader always has to be a much stronger player than, for example, any other violins, but it is a tightrope between projecting (and in Mozart this generally means projecting sweetly) and becoming overbearing. As I say, maybe I was disproportionately close to her, so I can’t really judge.

That wasn’t such an issue in the Stanhope and the Dohnányi because the introduction of piano, horn and clarinet changed the balance. Just to be sure, I took the precaution of moving further away for the Dohnányi, and though it wasn’t so much fun from further away, certainly there wasn’t any suggestion of leaderitis, just proper assertiveness, and the balance was fine.

Paul Stanhope was there and gave a short introduction to his piece. After only one hearing I’m afraid all I can say is that it was effective. It seemed to just be getting really going when it stopped.

I was really there for the sake of the Dohnányi. Last year I heard the Australia Ensemble play it. It’s a bit of a rarity and you might wonder why it should come on again so soon. The answer of course is that just as the Australia Ensemble includes clarinetist Catherine McCorkill in its permanent line-up, David Rowden, clarinetist, is the instigator of the Sydney Omega Ensemble. So there always has to be a clarinet piece.

The Dohnányi was written in 1934 and is a kind of cross-over work – mature post-Brahmsian romanticism (the maturity leads to a bit more autumnal discursiveness than JB generally tended to) finishing off with slightly folksy (think Dvorak) and eventually almost poppy jauntiness. These last tendencies emerge in the last two movements, on youtube here. SOE’s performance was a little brisker at the end than that version. The title of this post was what I was thinking about by the end, even though it certainly wasn’t an actual Rhumba.

For some reason, the program, originally advertised for 4pm, was put back to 5pm. That suited me fine. I’m still not a convert to Sunday daytime concerts, but plenty are. Maybe that affected the attendance adversely – tricky for getting back in time to cook dinner and watch a bit of Sunday night telly.

There seems to have been a bit of experimentation by the SOE as to who should be their pianist. As a sometime pianist, I’m naturally interested in this. In such an ensemble, I’d say the pianist has to be, weight for age, of at least the same calibre as the first violinist. This time it was Brenda Jones, on a smallish Yamaha (that’s a bit disappointing of the Opera House). I enjoyed her playing though I thought she put a bit too much figurative inflection in some of what became downwardly cascading swirls in the Dohnányi.

Next concert will feature Simon Tedeschi in a program “Top of the Pops” which David Rowden announced the ensemble will take touring with him for Musica Viva in their CountryWide touring program. I’m not sure if he is really the right match for them and I don’t think he is there as anything but a guest artist. I suppose they need a “name” for this, and he gets separate billing. That’s also why they probably need a poppy program, which they are sufficiently confident in to propose playing twice on May 29 at the SOH:

Kats-Chernin: Eliza’s Aria
Beethoven: Clarinet Trio
Schubert: Trout Quintet

I like the inclusion of the Kats-Chernin. The “Trout” is one for mum (and everyone). No prizes for guessing how the Beethoven gets onto the program.

wb, Edo!

April 12, 2011

In what seems like an era gone by, D and I dipped our toes into the world of the internet and the interactive possibilities of internet chat rooms. “wb” stood for “welcome back.” I don’t know if anybody uses it these days – I’ve moved on with the times, and when I last looked the level of verbalisation seemed to have receded to something analogous to the waiting minimalism of a gay sex-on-premises venue where, for those of you who don’t know, very little is said indeed.

Having drawn that dangerous analogy, I hasten pathetically to add that I haven’t been to a sex-on-premises venue lately either. I’ve moved on with the times in that regard as well, though it could be that’s my time (older, prospects poorer) rather than the times in general.

Anyway, deep breath, composure restored.

In the past week or so I have been twice to hear the SSO conducted by Edo de Waart. The first program, on a Saturday night, featured Beethoven 7, the Barber Adagio for Strings and John Adams’ Harmonium.

This was part of the formerly “Energy Australia” and now “Ausgrid” series. So an issue which helped bring a government down leaves its momentary mark on high culture: Ausgrid is the state-owned rump of “Energy Australia” following the sale of the retail component by the NSW government. The retail component took the name “Energy Australia: but (funny that!) apparently did not assume the sponsorship liabilities and hence the naming rights which came with it. So now we have an Ausgrid Stadium in Newcastle and an Ausgrid series at the Opera House. It is hard to see what need Ausgrid has of these naming rights so I guess when the agreement comes to an end both orchestra and stadium will be casting around for a new patron.

The second, entitled “The Last Romantic” was a both-Rach-3 program – piano concerto and symphony. That was part of a series sponsored by Emirates, the airline. In years gone by, this was marked by uniformed hostesses coming on stage to present the bouquets. I used to think that was tacky. Now, bathed in the aura of nostalgia, it starts to seem picturesque. That just goes to show that there’s never pleasing some people.

Applause is an intriguing aspect of group psychology. Regardless of their undignified renaming, the Ausgrid audience is probably the SSO’s most deeply entrenched. When de Waart (actually, we like to call him “Edo”) came on to the stage, he was warmly applauded. There was a distinct “welcome back” message. That was not just a message to him (“wb, Edo!”) but also a message to each other (“We remember when he was here before and we’re all welcoming Edo back together.”)

This wasn’t so marked for the Friday concert. It’s a series with a shorter history (I can’t remember the year the series began: there was some controversy because it replaced a sabbath-compatible series and so precluded more-observant Jews from attending). Rach 3 – the concerto rather than the symphony – was probably as much a draw card as de Waart. Then again, maybe the audience was just a bit non-plussed by the sight of a mere line of brass players for Rautavaara’s A Requiem in Our Time.

Of the big works, I found the Adams the most riveting even though somewhere in the last movement the rate of invention slowed and I began to feel that it was going on a bit. It really is a dazzling piece. On reflection, “dazzling” wrongly suggests a kind of superficial sparkle, as does even “brilliant.” Maybe “compelling” comes closer to the mark, though I don’t mean to suggest there is any shortage of big bright sound. I thought it deserved a better reception from the audience than it got – then again, this was the SSO Saturday Night Subscription crowd.

The Beethoven was chaste by comparison (small forces, briskish tempi, clarity of texture and lots of interesting effects especially in the third movement and particularly the pedal note on the horn!) and the Barber a lush anti-sorbet between.

In the second concert, I only really warmed to the Rautavaara in the third movement when it stopped sounding like high-class band music. The Rach 3 was, well, Rach 3, but with an intelligent approach, at first apparently unassuming (the opening piano theme more hummed than declaimed) but bursting out of the box for the big moments, especially the cadenzas). This was the definite crowd pleaser of the concert.

Judging from the final applause, the symphony was a bit of a puzzle for all by comparison. I think this was the work rather than the performance, and especially the rather funny chugging-accelerando finish which snuck up (on me, at least) rather unforewarnedly.

The second concert was repeated and broadcast live on Monday night, and I was keen to get home to hear it. In the end, as it was a 7pm concert, I only managed from half-way through the concerto. I’m glad I did, because on second hearing the symphony made more sense, including that rather odd ending, and my admiration of the performance was enhanced.

It can be a bit awkward when a former chief conductor returns as a guest. During the tenure of the conductor’s successor, there is the prospect of comparisons which may be invidious, and in the case of de Waart and Gelmetti, probably were. That is an issue which recedes on further successions. (Speaking of which, what’s the score with Ashkenazy? This is the third and last year of his initially-announced term.)

So far as I can recall, this is only the second time that de Waart has returned. The first was in 2006. Unlike Dorian Gray’s portrait, de Waart’s publicity photo remains the same. Otherwise, he’s like the rest of us. I hope we can see him again and earlier than 2016.

A thousand miles from care 1

April 9, 2011

“Company title” is a form of multiple ownership which has largely been superseded by the strata title legislation of the 1960s. Its distinguishing feature is that members of a company own shares in a company which owns a property. Each share gives an entitlement to the shareholder to occupy a specific area of the property, as well as, usually, some ancillary rights in relation to what in strata title law is known as the common property. Running and maintenance costs of the property are met by levies on the members.

The other distinguishing feature of company title, compared to strata title but common to all private (as opposed to public and listed) companies, is that shares are not freely transferable. One reason for this, quite understandable where people are going to be living in a building together, is that you might want to make sure that your fellow occupants are suitable neighbours. A second reason, which relates more to the general situation for private companies, is that you might want to be sure that your fellow-investors and -enterprisers are people you can get along with for the purposes of running the building. Of course, you can never tell how people will turn out later, but that needn’t stop you from trying.

Despite the renowned snootiness of company title buildings in Darling Point full of pastoral family widows when considering prospective neighbours and fellow-residents, it may be that the second reason is the more important. This is the first instalment of a series of posts about one company title block of units which illustrates that point.

Dungowan is an apartment block opposite the beach at Manly. It was built in 1919 and turned into a company title block in the 1950s.

In 2002 an application was made to Manly Council to redevelop the building. The proposal was to demolish the rear half of the building, containing 11 of the 22 flats, and build an eight-storey tower, as illustrated at the top of this post. The bottom four storeys of the rear tower would be “substantially match” what was there before, except that one unit would be removed in order in order to create 18 underground parking spaces in place of the existing 2 spaces. The upper four stories would contain 8 new units. A new lift would be built. In the end, in place of 22 units and 2 parking spaces there would be 29 units and 18 parking spaces. Sale of the new units would finance the project and enable needed remediation of structural defects in the building. Council staff recommended approval of the application but council refused it on 4 November 2002.

The applicant appealed to the Land and Environment Court on 3 December 2002 and amended plans were lodged on 14 April 2003. The plan below comes shows sight lines from the beach to the proposed new elevation.

Amongst others, Mr Garratt, chairman of the board of directors of Dungowan Manly Pty Ltd, presented evidence about the difficulties faced by the shareholders and the need to redevelop the property. Ms Candida Ashford of unit 20, Dungowan, gave evidence in support of the proposal.

Amongst those who gave evidence in opposition to the proposal were Ms E Maxwell, unit 23, Dungowan; Mr D Schaefer, unit 23, Dungowan [although there were 22 units there was no unit 13]; and Mr D McLaughlin, 45/507 Elizabeth Street, Surry Hills (owner with his wife of unit 4 in Dungowan).

The main controversy was the bulk and radical extent of the proposed renovation. Those supporting it said that the development needed to be done to fund the much-needed repairs to the fabric of the building. Here is a snippet of the judgment of the Land and Environment Court (Commissioners Nott and Tuot):

Ms Ashford’s unit 20

81. One of the units we inspected, unit 20 is owned by Ms Ashford, who gave evidence in favour of the proposed development. Her letter dated 21 August 2003 describes the problems with her unit:

I write in order to give you my account of structural problems that I have encountered living in Dungowan.
I have been a shareholder of Dungowan Manly Pty Ltd for approximately 7 years.
During this time I have resided in Unit 20 and have had to carry out many repairs and renovations to my unit.
Some problems are recurrent, apparently due to the poor structural condition of the building:
– Continuing water penetration into the northern and front walls.
– Rising of floor tiles in the rear area of my apartment due to disintegration of underlying concrete slab.
– The air vent and surrounding masonry in the front bedroom fell out at 4:00 am one morning.
– The concrete ceiling in the front sun room recently collapsed over an area of two or more square meters at 1.00 am with large concrete and metal pieces falling onto the furniture, fittings and floor below it, which led to further cracking and deterioration.
– The concrete ceiling in the front bedroom has a number of continuous cracks extending the full width of the room and forms a discontinuous and uneven surface.
– Finally, the northern wall of the kitchen is continuously disintegrating leaving masonry debris on and in adjacent cupboards.
I trust this is of assistance.

The court was not convinced that the proposed development was the only economic solution to the predicament which the company owning the building was in: some less ambitious proposal could meet the costs of repairing the fabric of the building. The application was knocked back.

A fresh proposal was put forward. By December 2005 it was sufficiently advanced to put before the members of the company. The proposal involved, in broad terms, using the space occupied by units 22 and 23 at the rear of the ground floor as part of the new (underground) parking spaces and the construction of several new flats above the existing building, with the object of selling the additional flats and parking facilities (or, at least, issuing shares carrying rights to those new areas) to defray the cost of the extension and refurbishment. This last aspect was one which required changes to the constitution to the company.

Tenants and shareholders moved out of the building to permit this work to begin. The repairs to the existing building were estimated to cost $6 million and the total cost of works was estimated to be $18 million.

On 9 September 2006 (presumably notice was given some time in August), the following resolutions were passed at a meeting of shareholders:

[1] “That the Company adopt the proposed amendments to Article 3 of the Articles of Association.”
[2] “Subject to the board’s satisfaction with the construction and finance agreements, the Company enter into the agreements for, and implement, the re-development of Dungowan as Mr Bartrop had proposed.”
[3] “That the shareholders approved $950,000 as the amount for the Company might buy back the shares to unit 22 and as the amount for which the Company might buy back the shares to unit 23, payable on completion of the project.”
[4] “That an allowance of $250,000 be paid to Mr Garratt, on completion of the project, for his work in relation to the project.”

Mr Bartrop was a consultant who had advised about the proposal. Mr Garratt, it will be recalled, was a director, and in fact the chairman of directors. Any payment of a fee to him required the approval of the members of the company because directors cannot normally enter into business arrangements with themselves on behalf of a company without such approval because of the risk of their acting in their own interest rather than the company when they do so.

The McLaughlins (remember them? they were the owners of flat 4) were the only shareholders who voted against these motions. They promptly went to court – this time the Supreme Court. They sought an injunction to prevent the company acting on the resolution. They said that:

there is a serious question to be tried on several matters of deficiency regarding the resolutions. …first, that there has been (or is to be) an abridgement or variation of their rights such as to trigger the operation of the constitution requiring unanimous or class consent. Second, …that the statutory requirements for the passing of a special resolution were not observed so that resolution 1 (purporting to alter the constitution) is ineffective….third …that the materials given to members in advance of and for the purposes of the meeting were deficient in such a way as to invalidate the decisions purportedly made.

To get an injunction they needed to say that there was a serious question to be tried and if the company was not stopped in its tracks the harm which might be done to them could not be remedied by just paying money in damages later. Of course, in such cases, the respondent to an application always says “But what about the harm which will be done to us if we can’t go ahead?” The weighing of these competing considerations is called “the balance of convenience.”

Justice Barrett, the judge who is in charge of the Supreme Court’s companies list, knocked the McLaughlins back. He found that there was a serious question to be tried, but the balance of convenience went against them.

24 For reasons I have explained, there are only two things of immediate relevance that are, in a legal sense, arguably achieved by the four resolutions. One is the alteration of the constitution to create additional share groupings referable to the additional flats that may be constructed. That, of itself, does not involve any invasions of any right of the plaintiffs. The second is the decision of the members to pay Mr Garratt an “allowance” of $250,000 “on completion of the project”. The plaintiffs incur no immediate prejudice from that resolution, even if it may eventually be found to be invalid, given that any payment will be made only on completion of a very substantial program of building and refurbishment that has not yet even begun.
25 My task here is to weigh up the comparative injury that will arise from the granting or withholding of the interlocutory injunction, seeking out the major risk of damage and, in particular, of any irreparable damage. The parties approached the interlocutory hearing on the footing that grant of the interlocutory injunction would prevent commencement of the building work. It is relevant to point out, in that respect, that all holders of shares have been told that they must vacate and have their tenants vacate by 30 September. In a circular of 14 July 2006, the chairman said that all was on track to commence work in September 2006. In a circular of 8 August 2006, he gave notice that work would start on 1 October 2006 and that the building had to be vacated by 30 September 2006. The plaintiffs have in fact complied with this requirement and their tenants have departed. They have not taken steps to re-let. All other occupants have also left or are about to do so. As a result, as the defendant points out, the building is in need of security measures and, as it were, a point of no return has been reached on the road to redevelopment.
26 In reality, and as I have explained, commencement and undertaking of the redevelopment is not something that is dependent on the validity of any of the resolutions. I should develop that point. The redevelopment could continue whether or not resolution 1 has been validly passed. There is nothing in the company’s constitution to require that any new units be associated by share groups or to prevent their being let as a commercial and profit-making venture by the company. Indeed, clause 3(14) of the memorandum of association (to the extent still relevant since conferral upon all companies of the capacity of a natural person) contemplates that the company may “let on lease … the whole or any part of the real and person property of the Company …”. The validity of the alterations to article 3 would become a live issue only if and when the company was about to issue any of the new groups of shares to which it relates. That point must be quite some way off, even though some steps towards marketing of new units are apparently in train. The company could not, consistently with the article, actually issue the shares unless and until the physical property referred to in the article existed. Until that point, the definition of the right attached to each new share group would have no meaning because the descriptions refer to parts of a building.
27 Resolution 2, as I have said, is not essential to the redevelopment which, under the constitution, lies within the province of the board of directors. The concept of “acting upon” resolution 2 – the thing sought to be restrained – is therefore meaningless in legal terms. Resolution 3 is also concerned with the future and something that “might” happen “upon completion of the project”. There can be no “acting upon” this resolution, in any event, except pursuant to a share buy-back or reduction of capital approved by separate decision in the future. Nor does resolution 4 present any imminent prospect of its being “acted upon”, given that the approval relates to the making of a payment “on completion of the project”. A project involving $18 million is going to take quite some time to complete.
28 The only immediate matter of prejudice to which the plaintiffs point is the supposed denial of the right of user (or letting) that is a necessary consequence of the need for their flat to be vacant during the building work. That right, arising from a provision of the constitution, is contractual in nature by reason of s.140 of the Corporations Act. If it will, in reality (and upon a proper construction of the articles), be denied by the company’s insisting on vacant possession for a period to carry out refurbishment works, there will presumably be a remedy in damages and, particularly in light of the fact that the plaintiffs’ flat has apparently been tenanted, there is no reason to think either that damages would not be an adequate remedy or that there would be difficulties with quantification.
29 In summary, while there is a serious question to be tried as to the validity of resolution 1 as a special resolution and as to the adequacy of materials given to shareholders for decision-making purposes (and thus as to the validity of all four resolutions), none of the resolutions presents prospects of immediate hardship or irremediable prejudice to the plaintiffs. The question of the validity of the resolutions can be left to be dealt with at a final hearing without apparent hardship to the plaintiffs in the meantime, particularly in light of the long time that will necessarily elapse before “completion of the project” occurs. To the extent that the plaintiffs’ real complaint is about exclusion from their flat, it is not of itself a product of the resolutions and such invasion of their rights as it might ultimately be found to entail is of such a nature as to be adequately compensable by damages. For the defendant, however, an order forcing it to halt the development project (if that is what the interlocutory injunction would really do) will entail particular hardship of a financial nature, bearing in mind that contractors are ready to start, work is due to commence within a few days and the building is now largely, if not completely, uninhabited. That hardship would be shared by the shareholders, none of whom (except for the plaintiffs) appears to have any complaint about what is happening and what is proposed.

Round 1 to the company, led by Mr Garratt. Ms Ashford, owner of unit 20, would also doubtless have been pleased that her numerous anxieties over the fabric of her apartment could now be set at rest. The project was to go ahead.

But why did both sides seem so certain that whether it could go ahead depended on being able to act on the resolutions, when the judge thought it did not? Could it have something to do with how the project was to be funded? We know that in the end it was to be funded by the issue or sale of additional shares, but that would only be at the end of a project which was to take some years. Builders are not usually prepared to wait so long.

It’s all too much for me to condense into a single post. If you’re impatient, you can jump forward a bit here, but meanwhile, on this blog, you’ll have to wait for the next awful episode.

Memory card full

April 4, 2011

As a friend commented to me recently, I am a retracer – he means of my own paths.

Recently, with a series of overcast weekends, I have been retracing my path to Petersham Pool, these days known as the Fanny Durack Aquatic Centre. The reason has been practical and sentimental.

As to practical – it’s closer than the beach and on an overcast afternoon, nobody goes there. You can get a lane or sometimes even the whole pool to yourself.

As to sentimental – for about ten years, from aetat 30 to 40, I lived opposite Petersham Park and swam at this pool regularly. Now the pool is to close for (they say) a year and a half, to be rebuilt.

Certainly, the pool needs work, though I put a lot of that down to anticipatory neglect – the plan to rebuild has been in place since about 2004. Many of the tiles have lost their vitreous surface. It’s not clear that the filtration system is really up to the task – perhaps because in recent years the pool has also been heated.

The pool is one of three pools built in Marrickville municipality in the early 60s. My half-remembered folk history is that agreement couldn’t be reached on where to put an Olympic pool, and as a result the area ended up with three 33 metre pools (more recently, I’ve learnt the Petersham Pool is in fact 35 yards). One, at Steel Park, closed some time in the 1990s. At that stage, the council was keen to close Petersham Pool as well and I got involved in one of the few grass-roots campaigns I have ever participated in – and even fewer which have been successful – to “save” it.

The proposed renovation of the pool will see it replaced by a 25m pool. This strikes me as absolute idiocy. I’ve heard it suggested that this was to enable races to be held in the pool. Talk about the tail wagging the dog and the warped power of competitive sport! There would be very very few races ever held, whereas the shortening will have a real impact on the utility of the pool for its predominant use (apart from hot days) of lap swimming. 33 metres, or even 35 yards, is much better for getting a sustained rhythm up.

The changing sheds have already been renovated. When heating was introduced (actually, I have very mixed feelings about this), we got hot showers. The last round of renovation saw two signs of the times, at least in the Gents.’ One is a nappy-changing table (and associated disposable-nappy bin). The other was that one bank of showers was enclosed into little changing sheds with doors. That is to me an unwelcome sign of the new prudery – call it modesty, if you will – which also seems to lie behind disparagement of the “budgie smuggler.” What exactly are we scared of? Gay men and pedophiles, I suppose, without much distinction between the categories. Both overblown fears in my opinion. To me, such changing rooms are a bit like gated communities. Doubtless they are in response to a desire expressed by some, but what do they say about us all? In due course, if you don’t go behind the door to shower you will be the weirdo, just as you will be if you wear Speedos.

On Sunday, I went for the last day. Earlier in the day there had been an “open day” with free admission for a couple of hours and the ubiquitous jumping castle for the kids. (Why? Why? There’s a pool there, for heaven’s sake!)


If that drew a crowd, the crowd had dispersed by the time I arrived. Any valedictory mood seemed quite restrained.

After my swim, I took a few farewell shots of the pool – furtively, because of the new fearfulness, which is the reason for the wonky horizontal and the excess of foreground in the first picture. My nervousness in this regard was probably exaggerated because one thing Petersham Pool has never been is officious.

The pool had maybe an hour’s opening time left, but I didn’t have the heart to wait for the dying moments. I took a final glimpse – the hardly grandiloquent front range seems likely to be demolished and replaced, including the toilets which serve the park.

I left through Petersham Park.

I walked up the (now somewhat neglected) pollarded avenue leading to the house where I lived for 10 years. Is it too groan-inducing to say it was a trip down (or rather, up) memory lane?

The house I used to live in is up for auction. If you look very closely you can see the real estate agent’s billboard – it’s the brightish oblongoid to the right of the right gatepost.

I couldn’t take any more pictures. The camera said: