Lianos v Order of AHEPA NSW Inc (No 4) [2021] NSWCA 159

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lianos v Order of AHEPA NSW Inc (No 4) [2021] NSWCA 159 Hearing dates: 26 February 2021 Date of orders: 6 August 2021 Decision date: 06 August 2021 Before: Macfarlan JA; Meagher JA; Emmett AJA Decision: Order that: 1. Order 3.a. of 26 November 2020 be rescinded. 2. Order 3.b. of 26 November 2020 be amended to read as follows: b. 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 (the 2018 Orders), in order to become a member of the first respondent (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, on the 30th of June of the last financial year, of one of the 13 Chapters referred to in the 2018 Orders. 3. The amended notice of motion dated 14 December 2020 otherwise be dismissed. 4. The question of the costs of the application be reserved. Catchwords: APPEALS — procedure — application for joinder after appeal decision handed down — applicants interested in appeal who took no part in appeal — court's power to preclude party from litigation without res judicata or issue estoppel — factors warranting APPEALS — procedure — application to reopen for adducing further evidence — special grounds — curing factual misapprehension — exercise of court's discretion — variation of orders to cure misapprehension VOLUNTARY ASSOCIATIONS — unincorporated and incorporated associations — effect of incorporation — relationship between unincorporated and incorporated associations — complex structure of incorporated and unincorporated associations on local, state and national levels — incorporation of a unit that was subordinate to an unincorporated association — construction of rules and constitution Legislation Cited: Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW), ss 96, 97 Corporations Act 2001 (Cth), ss 436A, 440D, 1322 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 51.51 Cases Cited: Ahmed v Chowdhury [2012] NSWSC 1452 Ainsworth v Criminal Justice Commission (1987) 175 CLR 564; [1992] HCA 10 Ann Street Mezzanine Pty Ltd (In liq) v Beck (2009) 175 FCR 532; [2009] FCA 333 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Carnie v Esanda Finance Corp Ltd (1995) 182 CLR 398; [1995] HCA 9 DJL v Central Authority (2000) 201 CLR 206; [2000] HCA 17 Hall v Job (1952) 86 CLR 639; [1952] HCA 57 Hunter v Chief Constable of West Midlands Police [1982] AC 529 In the matter of HIH Insurance (in liq) [2014] NSWSC 774 In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 John Alexander Clubs Pty Ltd v White City Tennis Club Limited (2010) 241 CLR 1; [2010] HCA 19 Lianos v Order of AHEPA NSW Inc [2020] NSWCA 193 Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304 Lianos v Order of AHEPA NSW Inc (No 3) [2020] NSWCA 340 Majak v Rose (No 5) [2017] NSWCA 238 Port of Melbourne Authority v Anshun (1981) 147 CLR 589; [1981] HCA 45 Poulos v Commonwealth Bank of Australia Ltd (No 3) [2020] NSWCA 72 Wytcherley v Andrews (1871) LR 2 PD 327 Texts Cited: Nil Category: Consequential orders Parties: Chapter ALEXANDROS (First Applicant) Chapter ANATOLE (Second Applicant) Chapter ANTIGONE 27 (Third Applicant) Chapter CHIRON (Fourth Applicant) Chapter DIOGENES (Fifth Applicant) Chapter IPPOKRATIS (Sixth Applicant) Chapter ODYSSEAS ELYTIS (Seventh Applicant) Chapter PLATON (Eighth Applicant) George Lianos (First Respondent) Luke Kyprios (Second Respondent) Con Gouros (Third Respondent) Order of AHEPA NSW Inc (Administrator Appointed) (Fourth Respondent) Representation: Counsel: F Corsaro SC with LL McGovern (Applicants) M Ashhurst SC with D Meyerowitz-Katz (First to Third Respondents)