Kabbara & Ors v Australian National Sports Club Incorporated [2021] NSWSC 738

Supreme Court New South Wales

Medium Neutral Citation: Kabbara & Ors v Australian National Sports Club Incorporated [2021] NSWSC 738 Hearing dates: 24, 25 and 26 May 2021 Date of orders: 15 June 2021 Decision date: 15 June 2021 Jurisdiction: Equity Before: Rein J Decision: See [90] Catchwords: ASSOCIATIONS AND CLUBS – Domestic and private tribunals – Procedural fairness – where the Plaintiffs were removed as members of the Australian National Sports Club Incorporated ("ANSCI") for allegedly breaching a clause in ANSCI's Constitution and sought declarations from the Court that the expulsions were in breach of ANSCI's Constitution and were invalid and of no effect – the Plaintiffs were expelled by the "Interim Management Committee" or the Interim care-taker committee ("the ICC") – whether the power to expel members was exercisable by the "Interim Management Committee" or the ICC – whether ANSCI had breached the implied Fairness Term and the implied Expulsion Term (see Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497) – Held: neither the ICC or the Management Committee (or the Interim Management Committee) had the power to expel the Plaintiffs and ANSCI also had breached the Fairness Term in respect of all Plaintiffs and the Expulsion Term in respect of some Plaintiffs. ESTOPPEL — Estoppel by convention — Mutual assumption – ANSCI contended the Plaintiffs were estopped from challenging their expulsion on the basis that the Interim Management Committee did not have the power to do so – whether there was a mutual assumption that the Interim Management Committee or ICC had the power to expel the Plaintiffs – Held: the estoppel defence not made out, there being no mutual assumption established. EQUITY — Defences – ANSCI contended that even if the Plaintiffs established a lack of power to expel there was no "practical injustice" to the Plaintiffs – whether administrative law and migration law principles were applicable here – Held: ANSCI had the onus of establishing the defence and failed to make it out. ANSCI sought to raise "discretionary defences" including that the declarations sought by the Plaintiffs would be of no utility and would give rise to further disputes – Held: there was a real utility in the declarations being made. Legislation Cited: Associations Incorporation Act 2009 (NSW) Associations Incorporation Regulation 2016 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 Allinson v General Council of Medical Education & Registration [1894] 1 QB 750; [1891-4] All ER Rep 768 Australian Workers' Union v Bowen (No 2) (1948) 77 CLR 601 Bornecrantz v Queensland Bridge Association Inc [1999] QSC 58 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Dickason v Edwards (1910) 10 CLR 243 Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Inc (2008) 72 NSWLR 224 Hornby v Narrandera Ex-Servicemen's Club Ltd [2001] NSWSC 235 Kabbara & Ors v Australian National Sports Club Incorporated [2020] NSWSC 497 Kabbara v Australian National Sports Club Incorporated [2020] NSWSC 1166 Lowe v Australian Chinese Community Association of NSW (No 2) [2010] NSWSC 1375 Maloney v NSW National Coursing Association Ltd [1978] 1 NSWLR 161 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Moratic Pty Ltd v Lawrence James Gordon and Anor [2007] NSWSC 5 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 Texts Cited: N. Stewart QC, N. Campbell and S. Baughen, The Law of Unincorporated Associations (2011, Oxford University Press) Category: Principal judgment Parties: Youcef Shaouki Kabbara (First Plaintiff) Natasha Hill (Second Plaintiff) Ilham Alameddine (Third Plaintiff) Nader Tabbaa (Fourth Plaintiff) Dawood Goddard (Fifth Plaintiff) Ahmed Faysal (Sixth Plaintiff) Taj Faysal (Seventh Plaintiff) Khaldoun Moussa (Eighth Plaintiff) Bassam Barake (Ninth Plaintiff) Khalid Majid Mousa (Tenth Plaintiff) Masen Abou-Zolof (Eleventh Plaintiff) Mohamed Charchouh (Twelfth Plaintiff) Talal Elcheikh (Thirteenth Plaintiff) Ibrahim Sukari (Fourteenth Plaintiff) Wissam Faysal (Sixteenth Plaintiff) Mohammad Kourouche (Seventeenth Plaintiff) Omar Chaar (Eighteenth Plaintiff) Rowah Hassan (Nineteenth Plaintiff) Australian National Sports Club Incorporated (Defendant) Representation: Counsel: Mr N Furlan (Plaintiffs) Mr D Stewart with Ms K Hooper (Defendant)