An v Joo

A brief chronology

1. On or about 1 January 1996, Korean adherents of the Presbyterian Church established the Open Door Church as an unincorporated association.
2. On 5 February 1998, the eighth defendant, then known as The Open Door Korean Cultural Society Incorporated (the "Society") was incorporated as an incorporated association pursuant to the predecessor of the Associations Act. The Society is a charity registered by the Australian Charities and Not for Profits Commission ("ACNC") for the purposes of advancing education and is alleged to hold its property on trust for the charitable purpose of advancing the education of those raised in the faith of the Korean Presbyterian Church.
3. On 25 September 2003, the unincorporated association known as the Open Door Church was incorporated pursuant to the predecessor of the Associations Act to become what I have referred to as the Church (see paragraph [9] above) and adopted a constitution, being (the parties now agree as applicable) the "Model Rules for Associations incorporated under the Association Incorporation Act, 1984" (the "Model Rules"). The Church is a charity registered by the ACNC for the purpose of advancing religion and is alleged to hold its property on trust for the charitable purpose of advancing the faith of the Korean Presbyterian Church.
4. From about July 2016 Mr An began to raise queries about the financial affairs of the Church and the Society.
5. In or about September 2016, (again putting the matter neutrally) steps were taken which purportedly had the effect of transferring the registration of the Society to a company limited by guarantee under the Corporations Act 2001 (Cth) (the "CA") to become what I have referred to as the Company (see paragraph [8] above). The sole member of the Company is the Church. In these proceedings Mr An challenges the validity of the transfer of the registration of the Society to become the Company.
6. Mr An commenced these proceedings by filing a summons on 9 March 2017. The relief which he seeks challenges the validity of the transfer of the registration of the Society to become the Company, seeks declarations concerning irregularities in the conduct of the annual general meetings of the Church from 2012 to date and prays for the appointment of a receiver and manager to the assets of the Church and the Company in order to conduct elections of their management committees and to investigate their financial affairs. It is important to note that Mr An's subsequent pleadings do not identify any specific, alleged examples of financial impropriety (as opposed to allegations of a more general nature concerning irregularities in the conduct of the affairs of the Church and the Company).
7. On 5 April 2017 the relevant defendants gave conditional undertakings intended to preserve the status quo in relation to the assets of the Church and the Company, subject to their continuing to be managed in the ordinary course of business. Those undertakings have been maintained by the relevant defendants through the subsequent interlocutory stages of the proceedings and are continued as part of the orders which I made.
8. On 30 May 2017 Mr An filed a statement of claim.
9. On 9 June 2017 the Attorney General, through the Solicitor-General in the latter's role as delegate of the Attorney General, gave his consent to the commencement of these proceedings by Mr An pursuant to s 6 of the Charitable Trusts Act 1993 (NSW).
10. On 24 July 2017 the Church and the Company entered submitting appearances save as to costs.
11. On 17 August 2017 defences and a cross-claim were filed.
12. General meetings of the Church were held on 11 March 2018 and 1 July 2018. There was no dispute at the hearing before me that there were irregularities in the conduct of those meetings (as to which, see paragraph [29] below) including in relation to the election of the management committee of the Church. There was also no dispute that, in the absence of a declaration by the Court, the New Defendants, as the current purported management committee of the Church, could not be said to have been validly elected to their respective positions. The Church is therefore currently without a validly constituted governing body.
13. On 13 September 2018 Mr An filed his notice of motion for leave to file a further amended statement of claim to incorporate complaints about the meetings of 11 March 2018 and 1 July 2018, for consequential orders and for injunctions to maintain the status quo.
14. On 21 December 2018, by leave which I granted, Mr Jeon filed his notice of motion, seeking relief which included: "1. Pursuant to section 1322(4)(a) of the Corporations Act 2001 (2001) ("Corporations Act"), section 96 of the Associations Incorporation Act 2009 (NSW), regulation 18 of the Associations Incorporation Regulation 2016 (NSW), and Part 3 of the Corporations (Ancillary Provisions) Act 2001 (NSW), a declaration, conditional on order 2 below, that the appointment of Abraham Min, Chang Gun Jeon, Ho In Park, In Soon Kang, Hongkuk Kim, Sang Lip Kim, and Young Kwon to the management committee of The Open Door Church Incorporated (NSW INC 9880520) ("Church") and as directors of Open Door Korean Cultural Society Limited (ACN 615 471 068) ("Society") was not invalid by reason of any contravention of the Corporations Act or any provision of the Church's constitution or the Society's constitution. 2. Pursuant to the Court's plenary power under section 1322 of the Corporations Act and/or the Court's ability to make an ancillary order where it is just and equitable to do so, an order requiring the Church to hold an extraordinary general meeting, in accordance with the directions of the Court, for the purpose of electing a management committee of the Church. 3. A declaration that the newly elected management committee of the Church may exercise the power of the Church as the sole member of the Society to appoint directors of the Society. 4. An order for declarations 1 and 3 above and order 2 above be heard and determined prior to the determination of any other claims in the proceedings."
15. The Church has obtained an extension from NSW Fair Trading up until 31 March 2019 in order to hold its annual general meeting.
16. I heard both Mr An's motion and Mr Jeon's motion on 29 January 2019.

The parties narrow the issues

1. Commendably mindful of their obligations under s 56 of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in dispute between them, the parties conducted the hearing before me on the basis of a number of concessions (some of which were formally made only for the purposes of the hearing) intended to narrow the issues. With some modifications which it is not necessary for me to record, the active parties, in particular the New Defendants, consented to the relief sought in Mr An's notice of motion either by the making of orders or the giving of undertakings. Those matters are all reflected in the orders which I subsequently made.
2. In relation to Mr An's motion, it was common ground that s 1322(4) of the CA applied to the Church, citing the decision of McDougall J in Chen v Liu [2015] NSWSC 161 ("Chen"), a case factually similar to the present insofar as it concerned an incorporated association whose affairs were deadlocked. The parties accepted that if s 1322 were engaged, the Court could grant relief on conditions including in relation to the holding of a meeting to elect a new management committee of the Church. Section 1322 of the CA includes: "(1) In this section, unless the contrary intention appears: (a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and (b) a reference to a procedural irregularity includes a reference to: (i) the absence of a quorum at a meeting of a corporation, at a meeting of directors or creditors of a corporation, at a joint meeting of creditors and members of a corporation or at a meeting of members of a registered scheme; and (ii) a defect, irregularity or deficiency of notice or time. … (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation; (b) an order directing the rectification of any register kept by ASIC under this Act; (c) an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a); (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding; and may make such consequential or ancillary orders as the Court thinks fit. (5) An order may be made under paragraph (4)(a) or (c) notwithstanding that the contravention or failure referred to in the paragraph concerned resulted in the commission of an offence. (6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph (4)(a): (i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and (b) in the case of an order referred to in paragraph (4)(c)--that the person subject to the civil liability concerned acted honestly; and (c) in every case--that no substantial injustice has been or is likely to be caused to any person.
3. Dr Birch SC also informed the Court that by reason of admissions made by the existing defendants in their current pleadings, as well as taking into account events which have occurred since the proceedings have been commenced, he did not want to be heard against the proposition that there had been irregularities in relation to the management of the Church and the Company over a number of years. For the purposes of the application of s 1322 to Mr Jeon's motion, the parties ultimately accepted that there had been these irregularities (the "Irregularities") in relation to the affairs of the Church: (1) The Tenth Defendant was on 11 March 2018 purportedly elected to the management committee of the Church for a two-year term (when only a one year term was lawfully available under the Model Rules); (2) At the general meeting held on 1 July 2018 Mr An was not permitted to stand for election to the management committee of the Church by reason of the improper rejection of his nomination form; (3) At the general meetings on 11 March and 1 July 2018 a rule was applied to the effect that a person could only be elected to the management committee of the Church if that person received two-thirds of votes cast (which rule was contrary to the Model Rules); and (4) The New Defendants were appointed (not elected) as members of the management committee of the Church.

Consideration

1. Once it became apparent that there was no substantive opposition to the relief sought in Mr An's motion, the focus of the hearing turned to Mr Jeon's motion. Dr Birch SC urged upon the Court that this was a case which cried out for an approach similar to that adopted by McDougall J in Chen relying upon s 1322(4)(a) and the just and equitable ground in s 1322(6)(a)(iii) of the CA to bring about fresh elections of the management committee. Dr Birch SC submitted that, as with many such disputes concerning religious congregations, there was a real risk that the present dispute could grow into one of great complexity, length and expense for all the parties. In particular, he contended that if every irregularity alleged in the further amended statement of claim were to be the subject of a full hearing, a case lasting many days would undoubtedly ensue with very little consequential benefit to the parties other than a determination that the particular contraventions had or had not occurred. On the other hand, because there was going to have to be a meeting of the Church by 31 March 2019, the best way to resolve matters would be to facilitate the lawful conduct of new elections at that meeting by removing any doubt about the power of the persons currently occupying the positions on the committee of management to conduct that meeting by the Court validating their position pursuant to s 1322(4)(a) of the CA on stringent conditions as to the conduct of the meeting to elect a new management committee.
2. The only opposition to a solution along the lines sought by Mr Jeon's motion was from Mr An. One objection was that if fresh elections were to be held, it was important for the electorate to be informed by an independent source as to whether or not the financial affairs of the Church and the Company had been properly managed. To meet this issue the parties accepted that an independent audit should be conducted. Given that the most of the records were maintained in Korean, I accepted Mr Birch SC's submission that it would be most efficient (including as to costs) if the independent accountant conducting the audit is fluent in written and spoken Korean.
3. Mr Condon SC also foreshadowed that, in particular, he had a number of submissions to make on the question of whether the Court could be satisfied, for the purposes of s 1322(6)(c) of the CA, that no substantial injustice had been caused to Mr An by reason of the Irregularities. Without foreclosing Mr Condon SC's right to put whatever submissions he was instructed to make against the kinds of orders sought by Mr Jeon, I indicated to the parties that, subject to matters of detail, I accepted Mr Birch SC's submissions that it was just and equitable for orders to be made of the kind proposed in Mr Jeon's motion for the reasons Dr Birch SC had advanced (see paragraph [30] above). The just, quick and cheap resolution of the proceedings would, in my view, be far more likely achieved by moving towards the swift conduct of an election for the committee of management for the Church, coupled with an independent investigation of the financial affairs of the Church and the Society for a reasonable number of years. To enable this to occur required the validity of the current management committee to be confirmed. After the luncheon adjournment, Mr Condon SC informed the Court that his instructions were to make submissions about the details of any orders to be made under s 1322(4)(a).
4. The argument, better thereafter described as a co-operative exchange between the bench and the parties, then proceeded by reference to a draft set of orders under s 1322 helpfully prepared by Mr Singleton on behalf of the Attorney General. There was general agreement about most the aspects of the form of the orders to be made and it is only necessary for me to record briefly one matter about which there was active contention. However, before doing so, I should first deal with what is, in effect, a further statutory pre-requisite to the making of an order under s 1322(4)(a) in addition to the Court being satisfied that it is just and equitable for an order to be made.
5. Section 1322(6)(c) of the CA provides that the Court must not make an order under s 1322(4)(a) unless it is satisfied, relevantly for present purposes, "that no substantial injustice has been or is likely to be caused to any person". There are two aspects to this. "Has been" invites an inquiry as to the effect of the irregularity sought to be cured. "Likely to be" draws attention to the effect of the proposed order. There was no suggestion that the proposed order would cause anyone an injustice, substantial or otherwise. However, in the present case a person who had suffered substantial injustice could be thought to be Mr An, who was irregularly deprived of the opportunity to stand for election to the management committee of the Church.
6. For the following reasons, the Court is satisfied that the Irregularities have not caused substantial injustice to Mr An in the particular factual circumstances of this case: 1. The Church is a voluntary, religious organisation. While participation in the Church is obviously an important matter to Mr An as a member of the congregation, there was no adverse economic consequence to Mr An by reason of the wrongful rejection of his nomination to stand for election to the management committee at the meeting held on 1 July 2018. 2. Mr An was not excluded from participating in the meeting on 1 July 2018. The evidence discloses that he took the opportunity to express his concerns a week before the meeting at a "pre-budget explanation meeting with the financial management sub-committee". He attended the meeting itself but does not give evidence about whether he spoke at the meeting. There is no suggestion in the evidence that he would have been prevented from speaking if he had wanted to do so. 3. Assuming proper conduct of the Church's affairs, Mr An would be (and in fact will be) eligible to stand at the next election for membership of the management committee. 4. Mr An was not, and has not been, excluded from participation as a member of the Church's congregation. He continues to attend the Church. 5. Neither party presented evidence as to whether or not Mr An would in fact have been (or not have been) elected to the management committee if his nomination had been allowed for the meeting on 1 July 2018. 6. Not only Mr An, but all members of the Church, have a strong interest in the affairs of the Church and the Company being regularised. As incorporated entities there is also a public interest to like effect. The case at bar is a good example of the observation made by Owen J in Elderslie Finance Corp Ltd v Australian Securities Commission (1993) 11 ACSR 157 at 160 that "a degree of prejudice to a person or persons may be outweighed if the overwhelming weight of justice is in favour of making the order".
7. The only particular matter on which there was some argument in relation to the orders was the suggestion that as a condition of the order those defendants (including the New Defendants) who had purported or were purporting to hold office in the Church and the Company should not be permitted to offer themselves for election at the meeting that would be held pursuant to the orders. During the course of argument I had mentioned to the parties that I would have been prepared to impose such a condition with the consent of all interested parties. When that consent was not forthcoming, Mr Condon SC submitted that I should in any event impose that condition on the basis of the various admitted irregularities (including the Irregularities). Mr Birch SC submitted in response that the Court should, in effect, take judicial notice that in voluntary organisations it can be difficult to find sufficient qualified and interested people to hold executive office and the Court should not reduce the pool of possible candidates.
8. I declined to impose a condition that past and present purported officeholders could not stand at the next election. I did not think it appropriate to do so when there had been no debate before me about the particular roles of particular individuals. I would not make such an order in the absence of a proper examination on evidence in relation to each person who would be affected by such a condition and without having given each such person an opportunity to be heard. Even assuming the evidence was available and the relevant parties ready, it would have extended the hearing well beyond the time allocated and introduced issues which would not have facilitated the just, quick and cheap resolution of the central question that Mr Jeon's motion presented for determination.

Some final observations

1. Pursuant to a direction I had made on an earlier occasion, the existing and New Defendants attended the hearing. I infer from the large number of people in the well of the Court that other members of the congregation were also present. The orders include that a Korean translation of this judgment should be posted on the Church's website, so I assume it will be read by members of the congregation who were not present in Court. For that reason it is appropriate for me to record some observations to the effect of those I made during the course of the hearing.
2. It is clear from the existing defendants' own pleadings and the evidence to date that for some years the financial and constitutional affairs of the Church and the Society have been run with disregard for the relevant legal requirements that apply to incorporated entities. Whether this has occurred as a result of, as one possibility, innocent or benign incompetence, or as another possibility, deliberate and self-interested misfeasance on the part of purported officeholders, is not a matter which the Court has yet had to decide. At this stage the Court has no view about which it might be.
3. However, the course of the proceedings thus far shows that many of Mr An's concerns have been vindicated and that he had good grounds to bring this case. Without knowing what the outcome might be, it is obvious that the forthcoming independent audit of the Church and the Company will be an important mechanism for everyone who has an interest in the matter to find out if the various irregularities admitted by the current defendants are a symptom of underlying, serious financial irregularity.
4. As Dr Birch SC submitted, the history of disputes in this Court about the internal affairs of religious organisations includes many examples of cases which have run for years at enormous, disproportionate financial cost to the participants and which can only have seriously damaged the communities involved, including impairing their capacity to provide the spiritual and practical support to their members which is usually the very reason for their existence. This is why the Court encourages the parties in this case to continue what they began at the hearing in terms of concentrating their efforts on bringing the present dispute to an early conclusion by sensible compromise.
5. The evidence shows that over the years the Open Door Church has given effect to the Christian principles which it espouses by doing much good work not only for its congregants but also for members of the wider Korean community, especially those who are learning to make a life in a new language and culture. It is to be hoped that those same principles will inform the conduct of the forthcoming election and the resolution of any issues disclosed by the work of the independent auditor.

Orders

1. The orders of the Court made on 31 January 2019 were: "The Court NOTES the following undertakings of Abraham Min, Chang Gun Jeon, Ho In Park, In Soon Kang, Hongkuk Kim, Sang Lip Kim, and Young Kwon ('the New Defendants'): 1. Each of the New Defendants, by themselves or by their servants and/or agents, shall not until the declaration of the poll at the election to be held pursuant to order 11(e) below at an extraordinary general meeting ('EGM') cause, permit or suffer the Eighth Defendant to take any step to alienate, further encumber or otherwise deal with the properties situated at XXX Eastern Valley Way, Chatswood, NSW (being folio identifiers XXX) or any part of them ('Church Real Property'). 2. Each of the New Defendants, by themselves or by their servants and/or agents, shall not until the declaration of the poll at the EGM cause, permit or suffer the Eighth Defendant or the Ninth Defendant to: a. provide funds, whether by way of gift or loan or otherwise, to any of the parties to the proceedings, or to any third party (including without limitation a legal practitioner or an accountant but not including the Independent Auditor appointed pursuant to these orders), for the purpose of providing advice and/or services to any of the parties to the proceedings in connection with these proceedings, or for the purpose of indemnifying any of the parties the cost or expense of obtaining any such advice or services (whether such purpose is the dominant or sole purpose of the provision of funds) ('the Prohibited Purpose'); b. seek funds from members of the Eighth Defendant or the Ninth Defendant for or in relation to the Prohibited Purpose; c. deal with the assets of the Eighth Defendant or the Ninth Defendant otherwise than in accordance with the ordinary business of the Eighth Defendant or the Ninth Defendant; and d. enter into any contract or arrangement which would have the effect of requiring or permitting the Eighth Defendant or the Ninth Defendant to deal with its funds and assets, or to seek funds from members, contrary to (a), (b) or (c) above, For the avoidance of doubt, the above undertakings shall not prevent the New Defendants from: i. causing the Eighth Defendant to enter into a lease or license of the Church Real Property, or any part of them, provided the agreement is made to a person or entity which is independent of any of the parties to the proceedings and is made at arm's-length; ii. engaging solicitors on behalf of the Eighth and Ninth Defendants and expending funds of the Eighth and Ninth Defendants in defending or responding to the defamation proceedings commenced by Gerald An against the Eighth and Ninth Defendants in the New South Wales District Court (2018/342093); or iii. as individuals, seeking or accepting funds from or entering into agreements with other members of the Ninth Defendant for or in relation to, the Prohibited Purpose. The Court ORDERS that: 3. The New Defendants be joined as the Tenth to Sixteenth Defendants in the proceedings. 4. The Attorney General for the State of New South Wales be joined as the Seventeenth Defendant in the proceedings. 5. The Plaintiff be appointed to represent in these proceedings himself and all members of the Eighth and Ninth Defendants who contend that: a. the registration of the Eighth Defendant as a company limited by guarantee under the Corporations Act 2001 (Cth) is invalid and ineffective; b. the appointment of the New Defendants as directors of the Eighth Defendant is invalid and ineffective; and c. the election and/or appointment of the New Defendants as members of the management committee of the Ninth Defendant is invalid and ineffective. 6. The Eleventh Defendant be appointed until conclusion of the EGM to represent in these proceedings himself and all other members of the Eighth and Ninth Defendants not represented by the Plaintiff pursuant to Order 5 of these orders. 7. Pursuant to section 64 of the Civil Procedure Act 2005 (NSW), the Plaintiff be granted leave to file a further amended statement of claim in the form annexed to the affidavit of Ms Peterson sworn 13 September 2018. 8. The Plaintiff shall file the further amended statement of claim by 31 January 2019 and that service on the New Defendants may be effected by delivery to their solicitor. 9. The defendants (except for the Attorney General) shall file and serve submitting appearances or defences to the further amended statement of claim by 13 February 2019. 10. The Defendants shall produce all documents in the possession, custody or control of either themselves or the Eighth or Ninth Defendants evidencing, constituting or recording the legal advice received by or given to any of the First to Ninth Defendants in the period 1 July 2016 to 20 September 2016 relating to: a. the means by which the Eighth Defendant could be registered as a corporation pursuant to the Corporations Act 2001 (Cth); and b. the procedure to be followed to obtain the transfer of registration declaration under the Associations Incorporation Act 2009 (NSW). 11. It is declared pursuant to section 1322(4)(a) of the Corporations Act 2001 (Cth) that whereas, in contravention of the constitution of the Ninth Defendant: a. the Tenth Defendant was on 11 March 2018 purportedly elected to the management committee of the Ninth Defendant for a two-year term; b. at the general meeting held on 1 July 2018 the Plaintiff was not permitted to stand for election to the management committee of the Ninth Defendant by reason of the improper rejection of the Plaintiff's nomination form; c. at the said general meetings on 11 March and 1 July 2018 a rule was applied to the effect that a person could only be elected to the management committee of the Ninth Defendant if that person received two-thirds of votes cast; and d. the New Defendants were appointed as members of the management committee of the Ninth Defendant, the purported appointments (including the purported election of the Tenth Defendant) of the New Defendants to the management committee of the Ninth Defendant were not invalid by reason of the said contraventions, on condition that: e. new elections for a management committee for the Ninth Defendant shall (unless the Court orders otherwise) be held by 31 March 2019, such Committee to hold office until the A.G.M. called to pass the 2018/2019 audited accounts or until 31 December 2019, whichever happens first (or within such further time as the Court might permit); f. a chartered accountant or certified practising accountant of at least 7 years' experience fluent in spoken Korean and proficient in written Korean agreed by the parties ('Independent Auditor') shall be appointed and retained by the Eighth and Ninth Defendants on or before 6 February 2019 (or within such further time as the Court might permit) to: i. conduct an audit of the financial affairs of the Eighth and Ninth Defendants for the period from 1 July 2015 to 30 December 2018 (such audit to extend to such investigations as the Independent Auditor may consider appropriate), ii. to report to the Court, the Eighth Defendant and the Ninth Defendant by Monday, 18 March 2019 ('Auditor's Report'), and iii. to serve the Auditor's Report on the parties to these proceedings by Monday, 18 March 2019; g. within two days of his or her appointment (or within such further time as the Court might permit) pursuant to (f) above, the Independent Auditor is to: i. file an affidavit certifying that he or she is: 1. a qualified chartered accountant or certified practising accountant of at least 7 years' experience, 2. fluent in spoken Korean, 3. proficient in written Korean, 4. not a member or former member of the Eighth Defendant or the Ninth Defendant, and 5. independent of all parties to the proceedings; and ii. serve that affidavit on all parties to the proceedings; h. the Eighth and Ninth Defendants shall cause the Auditor's Report to be made available on the website to members of the Ninth Defendant on Thursday, 21 March 2019 (or within such further time as the Court might permit) unless any party to the proceedings makes an application before that day to prevent the publication of that report: 1. in English, and 2. in Korean, translated from English by the Independent Auditor or a NAATI-qualified translator, the expense of such translation to be borne in the first instance by the Eighth and Ninth Defendants. i. the said new elections shall be called, organized and conducted in accordance with the Model Rules by the Independent Auditor, and despite the provisions of those rules, the only members of the Ninth Defendant who shall be permitted to participate or vote in the election shall be those members who are: i. listed in tab 22 of exhibit CGJ-1 to the affidavit of the Eleventh Defendant sworn 12 December 2018 (including those members whose names appear in highlighting) who are 18 years of age on the date of the election or older, and ii. physically present at the meeting, proxies being disallowed; j. the Independent Auditor is (subject to (k) below) conferred with all power necessary and incidental to conduct the audit in (f)(i) above and the election in (e) above including, without limitation: i. to obtain production of such documents as the Independent Auditor deems necessary or appropriate for the performance of his duties, ii. to obtain access to such books and records of the Defendants as the Independent Auditor may require to undertake his duties, iii. require answers from any of the parties to such questions as the Independent Auditor deems necessary or appropriate for the performance of his duties, and iv. in relation to the election - 1. scrutinise ballots, and 2. the Independent Auditor shall have the exclusive power to accept nominations, conduct the meeting, conduct the election, scrutinise ballots and announce the results; k. notwithstanding (j) above, the Independent Auditor shall have no power to stop any member permitted to participate and vote in the election specified in (i) above, from participating or voting in the election by reason of any non-payment of fees, failure to attend services or for any other reason; and l. in the first instance, the costs of the Independent Auditor shall be paid by the Eighth and Ninth defendants. 12. The Court directs that the parties are not bound by any undertaking that might be thought to apply limiting the use of the further amended statement of claim, or to any defence to that claim. 13. The Ninth Defendant shall forthwith: a. place a copy of these orders, and when available, the reasons for judgment of the Court, on its website; b. arrange for the translation of these orders at its expense in the first instance, and the Court's reasons for judgment, into Korean by a NAATI-certified translator; and c. place a copy of the translations of these orders and the reasons for judgment of the Court, on its website. 14. Costs of the parties' notices of motion be reserved. 15. The Eleventh Defendant's notice of motion is otherwise dismissed. 16. The parties and the Independent Auditor have liberty to apply on 2 days' notice to the associate of Justice Kunc. 17. The proceedings be listed for further directions before Kunc J at 9.30am on 11 April 2019.

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: 04 February 2019