Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carlingford Bowling, Sports & Recreation Club v Carabetta [2024] NSWCA 76 Hearing dates: 05 April 2024 Date of orders: 05 April 2024 Decision date: 05 April 2024 Before: Meagher JA; Gleeson JA; White JA Decision: (1) Dismiss the applicant's summons seeking leave to appeal with costs. (2) Dismiss the applicant's notice of appeal filed 19 December 2023 as incompetent and order the applicant pay the costs of that appeal. Catchwords: APPEALS – application for leave to appeal – where applicant club's constitution provides that by-laws invalid unless "not inconsistent with" constitution – no arguable error identified in primary judgment – no question of principle – leave refused Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Carlingford Bowling, Sports & Recreation Club (Applicant) Robert Carabetta (First Respondent) Anthony French (Second Respondent) Representation: Counsel: J Agius SC / S Erian (Applicant) N M Bender SC / R J Pietriche (Respondents) Solicitors: McManus Lawyers (Applicant) Pigott Stinson (Respondents) File Number(s): 2023/459517; 2024/71130 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2023] NSWSC 1442 Date of Decision: 27 November 2023 Before: Henry J File Number(s): 2023/363100 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] ex tempore JUDGMENT 1. MEAGHER JA (delivering the reasons of the Court): On 27 November 2023, the primary judge (Henry J) made declarations that By-Laws 10(f) and 18(c) made by the board of directors of the applicant, Carlingford Bowling, Sports & Recreation Club (the Club), on 25 September 2023 (and in relation to By-Law 18(c)(ii), amended on 19 October 2023) were inconsistent with the Club's constitution and accordingly invalid and of no effect (Carabetta & Anor v Carlingford Bowling, Sports & Recreation Club [2023] NSWSC 1442). 2. Those declarations were made on the application of the respondents, Mr Carabetta and Mr French. Each is and was a member of the Club at all relevant times. Mr Carabetta was a Bowling Member of the Club and claimed that his right to nominate for election to its board was adversely affected by By-Law 18(c). Mr French was a Social Member of the Club and claimed that his right to vote in board elections of the Club was adversely affected by By-Law 10(f). 3. The applicant seeks leave to appeal from those declarations of the primary judge. Leave to appeal is required because the final relief granted by the primary judge does not involve a matter at issue amounting to or of the value of $100,000 or more or otherwise satisfy s 101(2)(r) of the Supreme Court Act 1970 (NSW). 4. That leave should be refused for the reasons given by the primary judge. Her Honour was plainly correct to conclude that the two challenged By-Laws were inconsistent with the Club's constitution and accordingly invalid. The application for leave raises no question of principle. 5. For these reasons, the following orders should be made: (1) Dismiss the applicant's summons seeking leave to appeal with costs. (2) Dismiss the applicant's notice of appeal filed 19 December 2023 as incompetent and order the applicant pay the costs of that appeal. 1. These are the orders that the Court proposes to make. Is there anything that either of the parties wishes to say in relation to those orders? AGIUS SC: No, your Honour. BENDER SC: No, your Honour. 1. The orders announced are the orders of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 April 2024