Diener v Registered Association trading as Rooty Hill and District Racing Pigeon Club Inc [2024] NSWSC 27

Supreme Court New South Wales

Medium Neutral Citation: Diener v Registered Association trading as Rooty Hill and District Racing Pigeon Club Inc [2024] NSWSC 27 Hearing dates: 17 – 19 May 2022, 28 November – 1 December 2022, 7 August 2023 Date of orders: 1 February 2024 Decision date: 01 February 2024 Jurisdiction: Equity Before: Robb J Decision: See [186] Catchwords: ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — constitution — whether provisions in constitution for resignation of members mandatory — circumstances in which members may impliedly resign or abandon their membership without a formal resignation in accordance with the constitution — finding that all except one of the plaintiffs had abandoned their memberships of the association by failing to pay membership fees, failing to attend meetings and failing to participate in the affairs of the association in any significant way over different periods of many years ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — applications for orders reinstating membership of an association — effect of laches and delay — granting of relief discretionary — the Court would not in any event have made orders sought because of laches and delay ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — power of the Court to order the association to create and maintain the register of members required by the constitution — order made ASSOCIATIONS AND CLUBS — rights, duties and liabilities of members — whether association can be estopped from denying that the provisions in its constitution governing the acquisition of membership have not been satisfied — principles of estoppel not applicable — estoppel not established in any case Legislation Cited: Associations Incorporation Act 1984 (NSW), s 15 Associations Incorporation Act 2009 (NSW), s 26 Corporations Act 2001 (Cth), ss 175, 1322 Cases Cited: Australian Public Service Association (Fourth Division Officers) v Lawrence (1982) 2 IR 166 Bielski v Oliver (1958) 1 FLR 258 Elmawey v Adelaide Mosque Islamic Society of South Australia Inc (Supreme Court (SA), Williams J, 3 December 1997, unrep) Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) [2019] QSC 194 Finch v Oake [1896] 1 Ch 409 Gouros v Order of AHEPA NSW Inc [2023] NSWSC 1281 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 In re Sick and Funeral Society of St John's Sunday School, Golcar [1973] Ch 51 In the matter of Order of AHEPA NSW Inc [2018] NSWSC 458 Kavourakis v Waverley Bowling & Recreation Club Ltd [2010] NSWSC 439 Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205 Mualim v Dzelme [2021] NSWCA 199; (2021) 157 ACSR 367 Re Centura Holdings Pty Ltd [2016] NSWSC 62; (2016) 111 ACSR 185 Re Pacific Springs Pty Ltd [2020] NSWSC 1240; (2020) 148 ACSR 454 Redhead Grange Inc v Davidson (2002) 55 NSWLR 14; [2002] NSWSC 90 Category: Principal judgment Parties: Rudy Diener (First Plaintiff) Anthony Catania (Second Plaintiff) Barbara Diener (Third Plaintiff) Danny Williams (Fourth Plaintiff) Fernando Hernandez (Fifth Plaintiff) George Hajidavid (Sixth Plaintiff) Kevin Gambell (Seventh Plaintiff) Louie Gottardo (Eighth Plaintiff) Michael Attard (Ninth Plaintiff) Warren Schofield (Tenth Plaintiff) Manuel Gatt (Eleventh Plaintiff) Stephen Bond (Twelfth Plaintiff) Nicholas Robinson (Thirteenth Plaintiff) Paul Zammit (Fourteenth Plaintiff) Peter Andrews (Fifteenth Plaintiff) Robert Roach (Sixteenth Plaintiff) Sam El-Helou (Seventeenth Plaintiff) Registered Association trading as Rooty Hill and District Racing Pigeon Club Inc (First Defendant) Phillip Hill (Second Defendant) Frank Zimmer (Third Defendant) Jason Harris (Fourth Defendant) Representation: Counsel: M Baroni / J Widjaja (Plaintiffs) A Maroya (Defendants)