New South Wales Supreme Court CITATION : Islamic Assoc of Western Suburbs Sydney Inc v Dr H R K Survery [2007] NSWSC 1450 HEARING DATE(S) : 4 December 2007 JUDGMENT DATE : 4 December 2007 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Amendments allowed. CATCHWORDS : PROCEDURE [101] - Supreme Court - NSW - Procedure under SCR - Amendment - Late application - Whether prejudice curable. LEGISLATION CITED : Associations Incorporation Act 1984 ss 51(1)(g) & 51(1)(j) Supreme Court Act 1970 s 63 CASES CITED : State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Islamic Association of Western Suburbs Sydney Incorporated (P1) Australian Islamic College of Sydney (P2) Ghulam Akbar Khan (P3) Shakil Syed (P4) Abdul Jabbar Khan (P5) Shabbir Khan (P6) Naeem-ul-Haq (P7) Nazir Ahamed (P8) Tariq Aziz (P9) Kamaran Khan (P10) Shahid Khan (P11) PARTIES : Imtiaz Khan (P12) Faisal Temuri (P13) Tariq Naveed Khan (P14) Shamsu Din Shah (P15 Muammer Ceviker (P16) Hafizur Rahman Khan Survery (D1) Abbas Chelat (D2) Aijaz Ahmed Khan (D3) Shujaullah Kirmani (D4) Qamer A Khan (D5) Zaheer Shah Khan (D6) Mohammad Akram (D7) Gulam Q Siddiqui (D8) FILE NUMBER(S) : SC 6109/05 COUNSEL : R R I Harper SC & M R Pesman (Ps) J C Kelly SC & N A Confos (Ds) SOLICITORS : Dominic Stamfords (Ps) Spanko Soulos & Co (Ds) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 4 DECEMBER 2007 6109/05 ISLAMIC ASSOCIATION OF WESTERN SUBURBS SYDNEY INCORPORATED & ORS v DR H R K SURVERY & ORS JUDGMENT 1 HIS HONOUR: When this matter was called on for trial before me today the defendant applied for leave to file a defence to further amended statement of claim and a further amended statement of cross claim. The necessity for the defence to the further amended statement of claim arises from the filing by the plaintiffs of a further amended statement of claim by leave on 5 November 2007 and is not a matter of controversy. 2 Some of the amendments in the further amended statement of cross claim that is now propounded are in the same category, but there are additional heads of claim now sought to be made that are not in that category. They can most easily be identified by reference to the new prayers 15 to 24 of the further amended statement of cross claim. 3 Those prayers fall into three categories: prayers 15 to 18 relate to allegations that Dr Khan, the cross defendant, has carried on in office as President of the first plaintiff for a time longer than allowed by the constitution; prayers 19 to 23 make similar allegations in respect of other committee members; and prayers 23 and 24 seek to invoke the jurisdiction of the Court to wind up the first plaintiff under s 51(1)(g) and s 51(1)(j) of the Associations Incorporation Act 1984, which provide grounds for winding up of incorporated associations on the basis that the conduct of the committee appears to the Court to be unfair or unjust to members of the association or on the basis that it is just and equitable that the incorporated association be wound up. 4 Mr Kelly, of Senior Counsel for the defendants, has informed the Court that these matters arise out of the body of evidentiary material that is already served and the defendants do not seek to serve further evidence in relation to these matters. 5 Mr Harper, of Senior Counsel for the plaintiffs, objects on the plaintiffs' behalf to these amendments to the amended statement of cross claim being allowed. However, his secondary objection is that, if they are allowed, this should be subject to conditions, which he has stipulated. 6 I should say at once that it seems to me that it is desirable that all these matters be agitated between the plaintiffs and the defendants at the one time, rather than the Court making a decision in relation to historical events, without adverting to the allegations these amendments make to the present conduct of the affairs of the first plaintiff. This would leave the possibility that a judgment may be given in the proceedings, but the disputants return to Court after that on these questions of present conduct. 7 Section 63 of the Supreme Court Act 1970 enjoins that the Court deal with all aspects of the dispute that has arisen between the parties. On what Mr Kelly has put to me about the evidentiary basis of the amendments there is no reason to think that the proceedings either need be delayed or will be protracted beyond the period that the Court has already fixed for the hearing of the proceedings. In those circumstances I propose to allow the filing of both the defence to the further amended statement of claim and the further amended statement of cross claim. This appears to me to be in accordance with the policy laid down by the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. 8 I shall make the formal order concerning this after lunch as there are still some matters to be considered. Mr Harper asks and Mr Kelly does not oppose that the plaintiffs have their costs thrown away by the amendment and I propose to make such an order. 9 Mr Harper asked for a condition concerning the opportunity by the plaintiffs to bring further evidence in answer to the new allegations. I do not propose to impose a condition in this regard, but the plaintiffs and the parties generally may rest assured that, this amendment having been granted at this late stage, the plaintiffs will be given every appropriate opportunity to bring forward any further evidence that is rendered necessary by the amendment. 10 I shall in the first instance make a direction that further evidence be served by 22 January 2008 but, if I am informed on behalf the plaintiffs when the matter comes back to Court on 29 January 2008, that there is further identified evidence that is still required, then that matter will be dealt with then. If the plaintiffs' course of conduct is reasonable, they will certainly be given the time to bring that evidence forward during the course of the trial. 11 I have enquired whether at this stage verification of the amended pleadings is required. Mr Harper will convey to me at 2 o'clock the plaintiffs' attitude concerning that. 12 Mr Harper also submitted that it should be a condition that particulars be supplied identifying the evidence in support of the material that will be relied on in support of prayers 15 to 24 of the further amended statement of cross claim. Mr Kelly does not resist an appropriate order in this regard. Mr Harper may also bring forward at 2 o'clock the form of orders that he seeks in that regard. ********** 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.