Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) v Rabbi Benzion Milecki [2018] NSWCA 141

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) v Rabbi Benzion Milecki [2018] NSWCA 141 Hearing dates: 20 March 2018 Date of orders: 27 June 2018 Decision date: 27 June 2018 Before: Bathurst CJ at [1]; Macfarlan JA at [2]; Meagher JA at [3] Decision: 1. Time for filing and serving the notice of appeal extended until 28 September 2017. 2. Appeal allowed with costs. 3. Orders 1, 2 and 3 made on 22 June 2017 set aside. 4. Declare it was not a term of the respondent's contract of engagement with the second appellant that his appointment as Rabbi could not be terminated otherwise than in accordance with the Halachic or Orthodox Jewish legal principle of Hazakah. 5. Order that the respondent pay the appellants' costs of the proceedings below. Catchwords: CONTRACT – contractual interpretation – where written contract recording terms of engagement between Rabbi and company controlled by congregation – where contract provides that "relationship between the Rabbi and the congregation shall be defined in accordance with Halacha" – whether "congregation" means company – whether the principle of Orthodox Jewish law providing the Rabbi with life tenure expressly incorporated as a term of contract with company – whether such a term to be implied – term providing life tenure not incorporated or implied Legislation Cited: Corporations Act 2001 (Cth), ss 436A, 439C Cases Cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 Engel v Adelaide Hebrew Congregation (2007) 98 SASR 402 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Halpern v Halpern [2008] QB 195 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 McClelland v Northern Ireland General Health Services Board [1957] 1 WLR 594 NSW Cancer Council v Sarfaty (1992) 28 NSWLR 68 Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 315 ALR 243; [2014] FCAFC 177 Shamil Bank of Bahrain EC v Beximco Pharmaceuticals Ltd [2004] EWCA Civ 19; [2004] 1 WLR 1784 Liverpool City Council v Irwin [1977] AC 239 Giliberto v Kenny (1983) 48 ALR 620 Category: Principal judgment Parties: Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) (First Appellant)