Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304 Hearing dates: On the papers (submissions 21 October 2020) Date of orders: 26 November 2020 Decision date: 26 November 2020 Before: Macfarlan JA at [1]; Meagher JA at [2]; Emmett AJA at [3] Decision: 1. Leave is granted to proceed under Corporations Act 2001 (Cth), s 440D(1)(b). 2. Appeal allowed. 3. Set aside orders made by the primary judge on 3 October 2019 and, in lieu thereof: a. Declare that, on and from the registration of the 2005 resolutions, the 2007 resolutions, and the 2010 resolutions in accordance with the orders of Black J made on 21 March 2018 in proceeding number 2016/380711 in the Supreme Court of New South Wales (Registration Date), the references in clauses 1(2)(f), 2(1)-(3), 3(1), 4(1), 5(1)(d), 14, and 15 of the Rules of the first respondent (Association) to the "unincorporated association" has been and is a reference to AHEPA Australia Limited ACN 620 348 923 (AHEPA Australia), being the successor to the unincorporated association previously known as the "Australian Hellenic Educational Progressive Association". b. Declare that, on and from the Registration Date, in order to become a member of the Association who is entitled to vote at any general meeting of the members of the Association, a person must have been a financial member of a Chapter (or Unit) of AHEPA Australia that is geographically situated in New South Wales on the 30th of June of the last financial year, such membership to have occurred in accordance with Part X of the By-Laws of AHEPA Australia, as promulgated by the National Convention pursuant to clause 2 of Part X of the Constitution of AHEPA Australia. c. Declare that the resolutions purported to be passed at the special general meeting of the Association held on 13 November 2018 are invalid and that the proceedings at that meeting were void. d. Order that the second respondent rectify the Register of Incorporated Associations maintained under s 98 of the Associations Incorporation Act 2009 (NSW) by removing the purported constitution of the Association registered on or about 18 December 2018 from the Register. e. Declare that the resolution (described as a "motion") referred to in the notice of general meeting dated 11 February 2019 signed by Bill Skandalakis and Panayiotis Diamadis, circulated to certain members of the Association, and subsequently purported to be declared carried at a general meeting of the Association on 28 February 2019, in the following terms, is invalid and of no effect: "3) That the Committee of Management be authorised to obtain funds not exceeding seven million dollars (AUD$7M) for the construction and the completion of Stage 1 of the project." f. Declare that between 1 December 2018 and 15 March 2019, the Association did not validly appoint any person to occupy the office of Secretary or Treasurer of the Committee of Management of the Association. 4. The first respondent to pay the appellants' costs of the appeal. 5. The first respondent to pay the appellants' costs in the court below. 6. The above orders be stayed for a period of 21 days. Catchwords: CORPORATIONS — voluntary administration — Legal proceedings — moratorium on legal proceedings against company under administration — administrators appointed after publication of reasons but before final orders made — section 440D Corporations Act 2001 (Cth) — whether making orders a step in proceedings requiring leave — application for leave under s 440D — whether proposed orders of successful appellant reflect reasons given for appeal Legislation Cited: Associations Incorporation Act 2009 (NSW) ss 96, 97 Associations Incorporation Regulation 2016 (NSW), reg 18 Corporations Act 2001 (Cth), Pt 5.3A, ss 435A, 436A, 440D, 444E, 471B High Court Rules 2004 (Cth), r 41.02.2 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203 In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2001] NSWSC 1305; 285 ALR 207 Lianos v Order of AHEPA NSW Inc [2020] NSWCA193 Sovereign MF Limited v Compliance and Risk Services Pty Ltd [2013] VSC 213 Unilever Australia Limited v Rosella Foods Pty Limited [2012] NSWDC 221; 15 DCLR (NSW) 185 X Pty Ltd (Admin App) v Milstead [2015] FamCAFC 50; 54 Fam LR 443 Category: Procedural and other rulings Parties: George Lianos (First Appellant) Con Gouros (Second Appellant) Luke Kyprios (Third Appellant) Order of AHEPA NSW Inc (First Respondent) NSW Commissioner for Fair Trading (Second Respondent, submitting appearance) Representation: Counsel: M Ashhurst SC with D Meyerowitz-Katz (Appellants)