Shree Sanatan Dharm Sabha of NSW Inc v Satya Mani & Anor [2006] NSWSC 96

New South Wales Supreme Court

CITATION : Shree Sanatan Dharm Sabha of NSW Inc v Satya Mani & Anor [2006] NSWSC 96

HEARING DATE(S) : 10 February 2006

JUDGMENT DATE : 10 February 2006

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 02/10/2006

DECISION : Paragraphs [23], [24], [25].

CATCHWORDS : ASSOCIATIONS – Meetings – Interlocutory injunction to restrain holding of meeting – where seriously arguable case that meeting would not be valid – where meeting proceedings would cause confusion – where defendants had not availed of opportunity to challenge status of new committee at earlier stage – balance of convenience

LEGISLATION CITED : Associations Incorporation Act 1984 (NSW ), ss 26, 26(3), 26(7)

PARTIES : Shree Sanatan Dharm Sabha of NSW Inc Satya Mani & Anor

FILE NUMBER(S) : SC 1338/06

COUNSEL : D A Smallbone (P)

SOLICITORS : H Prakash (D 1 & 2)

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 10 February 2006

1338/06 Shree Sanatan Dharm Sabha of NSW Inc v Satya Mani & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff, Shree Sanatan Dharm Sabha of NSW Inc, is an association incorporated under the Associations Incorporation Act 1984 (NSW), which no doubt plays an important role in the religious and cultural lives of its members. Under its Constitution it is governed by a Management Committee to be elected annually at an Annual General Meeting, nominations for which close seven days prior to the Annual General Meeting. The defendants were elected respectively to the office of Secretary and President at an Annual General Meeting held on 25 July 2004, which I shall call the 2004 Annual General Meeting. At a purported Annual General Meeting held on 3 July 2005, they were not re-elected. The defendants have purported to convene an Annual General Meeting to be held on 19 February 2006 for which nominations will close on 12 February 2006, two days hence. The plaintiff - for present purposes, under the control of the Committee elected at the purported Annual General Meeting of 3 July 2005, which I shall call the 2005 Committee - seeks an interlocutory injunction to restrain the defendants from convening that meeting. 2 On an application such as the present for an interlocutory injunction, the question is whether the plaintiff has established a sufficiently seriously arguable case for final relief, to justify the grant of interlocutory relief having regard to the balance of convenience. Stating the test in that way recognises, first, that the plaintiff bears the onus of making out a case for interlocutory relief, secondly, that there must be a serious question to be tried before one considers the balance of convenience, and thirdly, that the strength of the serious question to be tried may be relevant to what is required to tip the balance of convenience one way or the other. 3 On an application such as this, one does not make findings of fact on a final basis, and in the summary which follows it should be understood that I am not resolving any contested factual issue between the parties, but merely stating, and that in short form, what I find on the evidence presently before me to be seriously arguable. It should also be understood that I have rejected as irrelevant to the present limited application evidence which may well be relevant to other aspects of the relief, both interlocutory and final, which the plaintiff claims in its Notice of Motion and summons, but which is not pressed before me today. 4 Following the 2004 Annual General Meeting held on 25 July 2004, differences arose between the defendants and the other committee members. On 8 May 2005, the 2004 Committee resolved that it had no confidence in the first defendant, and appointed 29 May 2005 for a further meeting to enable him to respond to certain allegations against him. Notice of that further meeting was given to the first defendant on 10 May. The defendant did not attend the meeting on 29 May, at which the Committee determined not to prefer any form of disciplinary action under the Constitution, but instead, among other things, to convene the 2005 Annual General Meeting on 3 July 2005. 5 Under the Association's Constitution, the Committee consists of the office bearers of the Sabha and seven ordinary committee members, each of whom should be elected at the Annual General Meeting of the Sabha pursuant to rule 16. The committee members, subject to the Rules, hold office until the conclusion of the next following AGM and are eligible for re-election. Under rule 16, nominations of candidates for election as office bearers of the Sabha or as ordinary members of the Committee shall be made in writing, signed by two members and accompanied by the written consent of the candidate and shall be delivered to the Secretary not less than seven days before the date fixed for the holding of the AGM at which the election is to take place. Under rule 24, the Sabha shall, at least once in each calendar year and within the period of six months after the expiration of each financial year, convene an Annual General Meeting, but that is subject to any extension or permission granted by the Fair Trading Commission under s 26(3) of the Associations Incorporation Act. Under rule 25, the Annual General Meeting shall, subject to the Act and rule 24, be convened on such date and at such place and time as the Committee thinks fit.