Cambodian Buddhist Society of NSW and Anor v Meng Eang Thai and Ors

Background Facts

1. On 10 October 1999, the Society was incorporated in NSW under the Associations Incorporation Act 1984 (NSW), and the successor to that Act, the Associations Incorporation Act 2009 (NSW), Registration Number Y1357230.
2. The Society's members are based at a temple at 68 Tarlington Parade in Bonnyrigg (Wat Khemarangsaram), and the Society is responsible for meeting the day-to-day expenses of the temple. The second plaintiff, the Venerable Long Sakhone, was the Abbot of the temple, until his purported removal in April 2017. The eleventh defendant, Ven Chuon Huot was appointed Assistant Abbot in 1996. There are currently five other Buddhist monks at the temple in Bonnyrigg.
3. At its inception, the Society adopted a constitution, comprising some 61 sections (the Constitution). "Rules III" of the Constitution relate to membership, and include the following: Section 8 Members of the Association shall be those who make a written request to the Board of Directors and are accepted by them, voluntarily make regular yearly contributions to the Association, and abide by its rules. … Section 10 Each member of the Association shall be entitled to one vote in person, or by proxy or by mail, on each matter submitted to a vote of members. Section 11 In all election for Directors, every member shall be entitled to cast one vote to fill each vacancy. … Section 13 Any member may resign from membership in the Association by delivering a written letter of resignation to the President. Section 14 Any member may be removed from membership by any affirmative vote of three quarter (3/4) of the Directors present in person at any regular or special meeting of the Board, for conduct prejudicial to the Association, provided that such member shall have been given an opportunity to defend himself at such meeting and that all members of the Board and the member charged shall be notified by certified mail that the matter is to be considered at the meeting at least 21 days prior to the day of the meeting.
4. "Rules IV" of the Constitution relate to meetings of members, and include the following: Section 18 Every two years, the members shall elect the Directors and the two internal auditors by a majority vote through a general meeting. … Section 22 The presence in person or by proxy of members representing one-fourth (1/4) of the votes entitled to be cast shall constitute a quorum at any meeting of the members. If, however, such a quorum shall not be present, the members put in person, shall have power to adjourn the meeting and to decide the time and place of another one. The second meeting shall transact any business which might have been transacted at the adjourned meeting, regardless of the number of members present.
5. "Rules V" of the Constitution relate to Directors, and include the following: Section 24 The business, property and affairs of the Association shall be managed by a Board of Directors composed of fifteen (15) persons. The number of Directors may be changed by amendment to these rules. Section 25 The Abbot and the Assistant Abbot of Khemarangsaram shall automatically be members of the Board of Directors. The remaining members of the Board of Directors shall be elected among members of the Association. Section 26 Each elected Director shall hold office for Two (2) years. Section 27 Vacancies in the Board of Directors arising from death, resignation, removal or otherwise, may be filled at the discretion of the majority of the Directors remaining in the offices. The Directors so chosen shall hold office until the next second year election of the Board of Directors. In no case, shall the number of Directors in office be less than seven (7). Section 28 At a special meeting of the members called expressly for the purpose, any elected Director may, by a vote of three-quarter (3/4) of the members present, be removed from the office for failure in his duty, provided that such Directors shall have been given an opportunity to defend himself.
6. "Rules VII" of the Constitution relate to officers and office bearers, and include the following: Section 36 The officers or office bearers of the Association shall consist of a President, a Vice President, a Secretary, a first Deputy Secretary, a second Deputy Secretary, a Treasurer, a Deputy Treasurer and the presidents of at least three Committees. All officers or office bearers of the Association shall be elected among the Directors. … Section 38 Any officer or office bearer may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Association shall be filled at the discretion of the Board of Directors. Section 39 The President of the Board of Directors shall be the chief executive officer of the Association. He shall be in charge of: - general management of the affairs and property of the Association; - putting into effect all directives and resolutions of the Board of Directors; - presiding at meetings of the members and at meeting of the Board of Directors; … Section 45 The Internal Auditors shall be in charge of: - - auditing the Inventory of the assets of the Association and of the Khemarangsaram; - auditing the receipts and disbursements of the Association; - auditing the financial reports of the Association; Such audits shall be made and presented to the Board of Directors at least 15 days prior to the annual meeting of members and at such other times as the Board of Directors may designate.
7. "Rules VIII" of the Constitution relate to the Committees (of which there are at least three), and include the following: Section 47 The Committee's Presidents shall be chosen by the Board of Directors from among themselves. Section 48 In addition to a President, each Committee shall have at least two members to be chosen by the Board of Directors among the members of the Association on the proposition of the Committee's President.
8. "Rules X" of the Constitution relate to amendments, and include the following: Section 57 These rules may be amended by a resolution passed by three-quarter (3/4) majority of members present at any General meeting, provided that the Minister of the Crown for the time being administrating the charitable Collection Act, 1934, as amended, shall be notified of amendment and such amendment shall not be effective unless the Minister has signified his approval to such amendment being made.
9. On 21 November 2000, the Society purported to amend several provisions of the Constitution (the Amendments), notifying the Department of Fair Trading of the Amendments on 24 November 2000 (Affidavit of Thin Em 8 August 2017, Annexure D).
10. The Amendments are expressed as two "changes" to the Constitution. The "First Change" is expressed as altering sections 26 and 32 of the Old Constitution, though it is common ground the numbering is erroneous and the section 26 Amendment (the New Section 26) is intended to replace section 25 of the Constitution, and the section 32 Amendment (the New Section 32) is intended to replace section 31 of the Constitution.
11. The "First Change" is expressed as: The change in Section 26 being proposed is: The Abbot and the Assistant Abbot of Wat Khemarangsaram shall automatically be members of the Board of Directors. The members shall vote to elect the President. Once elected, the President shall nominate his team of 12 to work with him. Section 32 then states that those nominated by the President will be given offices at the first meeting of the Board of Directors.
12. The "Second Change" is expressed as altering sections 15 and 29, though it is common ground the section 15 Amendment (the New Section 15) is intended to replace section 14 of the Constitution, and the section 29 Amendment (the New Section 29) is intended to replace section 28 of the Constitution. The New Section 15 and 29 provide for new mechanisms in which a member and elected Director may be removed.
13. At the bottom of the Amendments to the Constitution is a handwritten notation, which appears to read: As per minutes 25 votes in favour 16 votes against "A" ARM 21/11/2000
14. The Defendants submit rather than "16" votes against, the number is "11." No minutes are, it seems, available or in evidence to verify the precise number.
15. Such evidence as does exist would appear to disclose that a meeting was to be held on 29 October 2000, but it seems according to the documentation lodged with the Department of Fair Trading the meeting did not take place until 21 November 2000.
16. Pursuant to the 2000 Amendments, and since that date, elections for President have been held every two years.
17. In 2014, Mr Sakal Men was elected President of the Society.
18. A number of the monks at the temple were residents of Australia pursuant to the relevant visa requirements. They included amongst others Ven Venglim Mel, Ven Vithour Mao and Ven Vuthea Chet. Without intending any disrespect, these three persons will hereafter be referred to as "the Three Monks." Each of the Three Monks was in Australia on a temporary visa sponsored by the Society.
19. In March 2016, Mr Sakal Men began working on the paperwork in order to support applications for the Three Monks to obtain permanent residency.
20. Earlier, in February 2015, Ms Davy Chea alleged she entered a romantic and sexual relationship with Ven Chuon Huot. Ms Chea also alleged Ven Chuon Huot gave cash amounts to her from time to time, promised to leave his vocation and live with her, and that when she threatened to break the relationship off he in turn threatened to commit suicide.
21. Satisfied with what she perceived to be broken promises, Ms Chea went to the temple on 19 September 2016. An incident occurred and Ms Chea tried to speak with Ven Chuon Huot. Mr Sakal Men was notified and went to the temple to see what the incident was about.
22. Sometime after the incident Mr Sakal Men decided he wanted to run for a second time as President. In the meantime, on 14 November 2016, Ven Chuon Huot wrote to the Minister for Immigration and Border Protection making complaints and serious allegations against each of the Three Monks. Attached to that letter was a statutory declaration dated 16 November 2016 again purporting to provide factual information in support of the allegations.
23. On 30 November 2016 the Department of Immigration and Border Protection wrote to the Society bringing their attention to the fact that a complaint had been made and inviting comment on the allegations. To date, the Society has not responded to that request.
24. Mr Sakal Men however prepared a statutory declaration dated 15 December 2016. There is no evidence as to whether that was ever sent.
25. Earlier, on 11 October 2016, notices were mailed out to persons announcing there would be an election for President and which would take place on 18 December 2016. Announcements were made on Radio SBS on the Khmer language programme. The notice also gave information on the closing date for the presidential candidates being 23 November 2016.
26. The ballot for the December 2016 election was carried out on 18 December 2016. The process adopted appeared to be persons first congregated outside the hall where ballots were being cast. If they were already a member of the Society they were then given what has been described as a "white card". The white card was then stamped by a designated official. The person then took the white card into the hall and received a ballot paper in exchange for the card.
27. For those persons attending and wishing to vote at the election they were invited to fill out an application for membership. The application form required the identity of the person, their gender, telephone number and some other form of identity. They were then required to sign the particular form which also made provision for the signature of the President (Ex D1).
28. Three candidates stood for election - Mr Sakal Men, Mr Chan Ven and Mr Meng Eang Thai - and each of their names appeared on the ballot paper. Mr Por Heang Ya was the returning officer, charged with conducting the election. While it appears Mr Sakal Men as the outgoing President appointed the returning officer, it is unclear on the evidence precisely how he was appointed or charged with such a function.
29. At approximately 2.30pm each candidate was invited to make a 5 minute speech. Mr Sakal Men alleged that once he mentioned the involvement of "Davey and Huot" he was interrupted.
30. Mr Chan Ven, another candidate, alleged people were simply taking membership forms and appeared, to his observation, to be instructing people as to what they should do with the forms. He complained to the returning officer to no effect. Mr Chan Ven alleged there were hundreds of voters but only one ballot box and he observed people throwing handfuls of ballots into the box. He also alleged he saw another voter put a number on a ballot paper of another person and further that he saw people placing multiple votes into the box. Further he alleged that having observed these discrepancies he took hold of the microphone and announced that he no longer wished to participate in the process.
31. According to the minutes of the December 2016 election (Affidavit of Mr Meng Eang Thai dated 8 August 2017, Annexure 1), the secret ballot was held between 2:30pm and 4:00pm. Mr Meng Eang Thai allegedly won the election, receiving 310 votes (the December 2016 regime). Mr Sakal Men received 232 votes and Mr Chan Ven received 43 votes. The returning officer declared nine as invalid votes. The ballot papers have been discarded and there is no detail as to why nine votes were declared as invalid.
32. This division of opinion in the community manifested itself in the December 2016 regime siding with Ven Chuon Huot, and a large number of the community otherwise siding with the Abbot Long Sakhone and the Three Monks.
33. By early March 2017 the respective rivalries had intensified.
34. In April 2017 the Society led by Mr Meng Eang Thai purported to remove the Abbot and replace him with the Assistant Abbot. This was done by appointing the Abbot as the Honorary President and Ven Chuon Huot to General Manager. It was accepted candidly by Mr Meng Eang Thai that these titles were chosen in order to avoid a possible breach of the Constitution (T276/46-T278/2).
35. There were several public meetings held especially amongst persons who supported the extended visas for the Three Monks.
36. This led to a special meeting of the membership called on 30 April 2017, being the April 2017 election. Minutes were prepared of the meeting. The meeting was in fact called by Ven Long Sakhone. He purported to do so as an ex officio member of the Society's management committee.
37. Those who attended were asked to sign an attendance record. The meeting voted to declare the board and presidency of the Society vacant and then Mr Thin Em was elected the new President, unopposed (the April 2017 regime).
38. Following the meeting, letters were sent to the Office of Fair Trading and Mr Meng Eang Thai, informing them of the outcome of the meeting.
39. On 1 May 2017, the April 2017 regime attended the hall under the temple, but the doors were locked.
40. The December 2016 regime installed new locks on the temple doors and refused to provide keys to Ven Long Sakhone. Security cameras were also installed. The control panel for the security cameras is now in the sleeping quarters of Ven Chuon Huot.

Relevant legislation

1. The Associations Incorporation Act 2009 (NSW) (the 2009 Act) governs the affairs of the Society, replacing the Associations Incorporation Act 1984 (NSW) (the 1984 Act) and coming into force on 1 July 2010. Under Sch 4, Pt 2 of the 2009 Act, the Society is now taken to be registered under the 2009 Act; Luen Fook Tong Inc v Lowe [2011] NSWSC 1004 at [39].
2. Both Acts, although leaving each registered organisation the choice of their own idiosyncratic rules, nonetheless require certain matters to be addressed in those rules. The underlying policy in the legislation making such a requirement is clearly for the purposes of ensuring proper governance, as reflected in section 3 of the 2009 Act.
3. Both Acts also contain provisions imposing the whole or parts of what is described as the model rules (under the 1984 Act) or the model constitution (under the 2009 Act) where the rules of an Association do not make provision for (section 19(3) in the 1984 Act) or fail to address (section 25 in the 2009 Act) certain matters specified under each Act. The Model Constitution is set out in Sch 1 to the Associations Incorporation Regulation 2016 (NSW) (the Regulation).
4. Under Sch 4, Pt 2 of the 2009 Act, the rules of associations incorporated under the 1984 Act are taken to be its constitution under the 2009 Act. Further, to the extent that a former association adopted the model rules established under the 1984 Act, and until it changes its rules under the 2009 Act, those model rules continue in force in relation to that association; 2009 Act, Sch 4, Pt 2, cll 1 and 2.
5. Section 25 of the 2009 Act provides: 25 Provisions of model constitution to apply if appropriate provision not otherwise made (1) If an association's constitution fails to address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to form part of the association's constitution. (2) For avoidance of doubt, an association's constitution may address a matter referred to in Schedule 1: (a) by adopting the provisions of the model constitution with respect to the matter, or (b) by adopting a modified version of the provisions of the model constitution with respect to the matter. (3) Subsection (2) does not limit the way in which an association's constitution may otherwise address a matter referred to in Schedule 1. (4) A provision of an association's constitution is of no effect to the extent to which it is contrary to this or any other Act or law.
6. Matters in Schedule 1 which must be addressed in an association's constitution include: 7 COMMITTEE The composition and functions of the committee, including: (a) the election or appointment of the committee members, and (b) the terms of office of the committee members, and (b1) the maximum number of consecutive terms of office of any office-bearers on the committee, and (c) the grounds on which, or reasons for which, the office of a committee member is to become vacant, and (d) the filling of casual vacancies occurring on the committee, and (e) the quorum and procedure at meetings of the committee.
7. 'Committee' is defined as "the governing body of an association, however described." 'Committee member' "means a person who is elected or appointed under the association's constitution as a committee member of the association"; section 4 of the 2009 Act.

The law relating to elections

1. In some circumstances, a claim for discretionary relief based on a challenge to the validity of an election of an incorporated entity's office bearers may be able to be dismissed on discretionary grounds despite a finding the election did not comply with procedural requirements; Rivers v Bondi Junction-Waverley RSL Sub-Branch Ltd (1986) 5 NSWLR 362 at 373F-374G and 376G-377H (Rivers). The New South Wales Court of Appeal in Rivers cited with approval the judgment of Holland J in Ryan v South Sydney Junior Rugby League Club Ltd (1974) ACLR 486 (Ryan) at 499: I think that it would be going too far to say that the court would have no option but to declare an election void if there was any breach of a member's rights under the articles even though, on the evidence before the court, it appeared that the majority of voters had not been prevented from electing the candidates of their choice or that there was no reasonable ground for believing that the majority might have been so prevented. To do so would be to give no weight to the interest of the members as a whole in having an election to settle a contest for control of the company brought to a conclusion with reasonable expedition so as to remove uncertainty and avoid the delay and expense involved in a succession of elections because of some breach of the articles.
2. As Brereton J recently summarised in Re Sri Guru Singh Sabah, Sydney Inc. (The Sikh Association of Sydney) [2017] NSWSC 1092 at [35]-[37], Rivers, in approving Ryan, makes plain the materiality of an irregularity in an election will bear on the discretion of the court to grant or withhold declaratory relief.

Browne v Dunn

1. The rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) provides if a party intends to assert a witness's evidence ought not to be accepted, counsel for that party must put to the witness the basis on which their evidence will be challenged. As noted by McHugh JA in Levinge v Director of Custodial Services, Department of Corrective Services and Ors (1987) 9 NSWLR 546 at 560: The rule in Browne v Dunn (1893) 6 R 67 at 76-77 prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination.
2. The rule in Browne v Dunn, being a rule of fairness, is of course not absolute. As Lord Herschell noted in Browne v Dunn at 71: … Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.
3. These views were echoed by Tobias and McColl JJA in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112]: There can be no doubt that where factual evidence is not cross examined upon, prima facie it should be accepted. However, it ought not necessarily be accepted where, as Tobias JA said in Multiplex, there is a credible body of evidence of a substantial character in direct contradiction of the non cross examined evidence. In the present case there is no such body of evidence.

Jones v Dunkel

1. The rule in Jones v Dunkel (1959) 101 CLR 298 provides that where a party can reasonably be expected to have adduced particular evidence, adverse inferences may be drawn from the failure of that party to do so. The rule is an application of the general principle in the law of evidence that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted"; Blatch v Archer (1774) 1 Cowp 63 at [65] per Lord Mansfield.
2. Heydon J, in a separate judgment in ASIC v Hellicar (2012) 247 CLR 345 at [232] made clear the rule in Jones v Dunkel does not extend to allowing inferences to be positively drawn that the absent witness's evidence would have adversely affected the party who failed to call the witness: …As the Court of Appeal said, two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party (HML v The Queen (2008) 235 CLR 334 at 437-438 [302]-[303]; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 385 [64]).

Section 1322 of the Corporations Act 2001 (Cth)

1. Section 1322 of the Corporations Act 2001 (Cth) (the Corporations Act) provides a proceeding under the Act is not invalidated by procedural irregularities unless a Court is of the opinion the irregularity caused or may cause substantial injustice which cannot be remedied by any order of the Court.
2. Since the enactment of the Associations Incorporation Act 2009 (NSW), section 1322 applies to the Society's affairs; section 96 and 97 of the Associations Incorporation Act 2009 and reg 18 of the Associations Incorporation Regulation 2016.
3. The scope and effect of section 1322 was considered by the High Court in Weinstock v Beck (2013) 251 CLR 396 (Weinstock). French CJ observed at [39]: [39] Corporations, in contemporary Australian society, serve the purposes of enterprises, large and small, owned and operated by men and women, some of whom are sophisticated, knowledgeable and well-advised on matters of corporate governance and some, perhaps many, of whom are not. Section 1322(4) and related provisions reflect a long-standing legislative recognition that mistakes will happen in corporate governance and that it is not in the public interest that the validity of decisions made in relation to corporations be unduly vulnerable to innocent errors which may be corrected without substantial injustice to third parties. In accordance with its evident purpose, s 1322(4)(a) is to be construed broadly and applied pragmatically, principally by reference to considerations of substance rather than those of form.
4. Further, following a review of authorities on the section, Palmer J in Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd [2005] NSWSC 1005 (Cordiant) noted at [103]: I think that the following general proposition may be formulated for the purposes of the application of CA s 1322: - what is a "procedural irregularity" will be ascertained by first determining what is "the thing to be done" which the procedure is to regulate; - if there is an irregularity which changes the substance of "the thing to be done", the irregularity will be substantive; - if the irregularity merely departs from the prescribed manner in which the thing is to be done without changing the substance of the thing, the irregularity is procedural.
5. In Rana v Survery (No 2) [2012] NSWSC 905 (affirmed in Rana v Survery [2013] NSWCA 234), Pembroke J held the issue as to whether there had been a valid decision creating rights of membership was substantive, not procedural (at [36]-[38]). In reaching this finding, his Honour cited Cordiant, as well as the following passage in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (John Pfieffer) at 543-4 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ: …matters that affect the existence, extent or enforceability of the rights or duties of the parties to an action are matters that, on their face, appear to be concerned with issues of substance, not with issues of procedure. Or to adopt the formulation put forward by Mason CJ in McKain "rules which are directed to governing or regulating the mode or conduct of court proceedings" are procedural and all other provisions or rules are to be classified as substantive.

The presumption of regularity

1. The principles surrounding the presumption of regularity are set out in Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 (Darley) - the case relied upon by the Plaintiffs to support the validity of the Amendments.
2. The New South Wales Court of Appeal (McColl JA with whom Macfarlan and Whealy JJA agreed) observed at [113]-[118]: [113] The question whether development consent has been given is one of fact that is capable of proof by evidence of express consent by the responsible authority (or a duly authorised delegate) or by conduct evidencing consent: Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 (at 576-577) per Windeyer J; Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139 ; (1999) 130 LGERA 52 (at [38]) per Mason P (Sheller JA agreeing). The latter method of proof invokes the presumption of regularity. [114] The presumption of regularity has been described as both a "rebuttable presumption of law" (Cross on Evidence, LexisNexis Butterworths, at [1175]) and "a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs" (Hill v Woollahra Municipal Council [2003] NSWCA 106 ; (2003) 127 LGERA 7 (at [52]) per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose "natural home … is public law": Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (at 164) per McHugh JA. [115] The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": McLean Bros & Rigg Ltd v Grice [1906] HCA 1 ; (1906) 4 CLR 835 (at 850) per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v Ninth National Bank 147 US 91 (1893). In Minister for Natural Resources v NSW Aboriginal Land Council (at 164) McHugh JA explained its operation in the public law context as follows: Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. [116] In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (at [52]). In this respect, in my view, Windeyer J's remarks in Brickworks Ltd v Warringah Corporation remain cogent: The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the 'responsible authority'. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. [117] There is authority to the effect that the presumption of regularity applies "only to matters of form, rather than of substance", a proposition which may not be consistent with earlier decisions of this court: see the discussion in GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 ; (2007) 72 NSWLR 647 (at [82]) per Basten JA (Bell JA and Young CJ in Eq agreeing). Such authority would also be inconsistent with Brickworks Ltd v Warringah Corporation in which the presumption of regularity was applied to conclude that a council had given consent for land to be used to extract minerals. [118] The presumption of regularity was considered capable of applying to the issue whether development consent had been given, or its validity, in Baiada and Ashfield Municipal Council v Armstrong [2002] NSWCA 269 ; (2002) 122 LGERA 105. Indeed, Powell JA, who dissented in Baida, held (at [97]-[117]) that the presumption could be invoked to demonstrate development consent had been given. I proceed accordingly on the basis that Walfertan was entitled to call the presumption of regularity in aid.

Ratification

1. The Defendants cite Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2004) 51 ACSR 147; [2004] NSWSC 967 (Aztech) in support of their claim for ratification. In that case, Barrett J explained [45]-[50]: The ratification concept [45] Aztech points to a number of factual matters in support of its contentions as to ratification by it of the contract made on its behalf by Mr Azzi. The significance of those matters can be judged only by reference to the relevant ratification concept. [46] In company law, a species of ratification is applicable to cases in which a company organ or instrumentality oversteps the boundaries of the powers properly exercisable by it according to the company's internal arrangements. The process by which the members in general meeting (or perhaps by unanimous assent outside a meeting) sanction after the event some act of the directors that is beyond their powers or involves improper exercise of those powers is often described as ratification. It might be more accurately described as condonation. By and large, persons with whom the company deals (or "outsiders") are not concerned with these matters unless fixed with knowledge of irregularity. This "indoor management rule" was first developed by courts (eg Royal British Bank v Turquand (1856) 6 E&B 327; 119 ER 886; Mahony v East Holyford Mining Co (1875) LR 7 HL 869) and is now enacted by statute (Corporations Act, Pt 2B.2). [47] Section 131(1) is, in my view, concerned with a broader concept of ratification and I would not accept that the ratification it contemplates necessarily involves some form of corporate resolution (cf Mezzanotte Investments Pty Ltd v Carpenter [1998] SADC 3781). The context is one in which principles of agency are at work in a way modified and adapted by statute. Thus, as is said at para 15.290 of "Ford's Principles of Corporations Law" (Looseleaf, September 2004, by H A J Ford, R P Austin and I Ramsay) in relation to s 131(1): Presumably, just what constitutes ratification is governed by the law of agency. [48] One relevant principle of the law of agency is that a non-existent person cannot have an agent and any act of a supposed agent of a non-existent person is incapable of ratification. That principle is obviously displaced by s 131(1) which works on the clear basis that a company, once registered and existing, can ratify something ostensibly done on its behalf before it existed. The application of general principles of the law of agency must therefore be confined to a determination of the sufficiency and efficacy of events after registration to constitute ratification. The focus must therefore be upon analogy with cases where one person purports to act, vis-à-vis a third party, as agent of another person (being a person who exists) but the relevant authority does not then exist or, because exceeded, does not operate. [49] It is generally said that ratification may be express or implied. Express ratification occurs when the alleged principal has, by unequivocal language or conduct, acknowledged that the contract is his. Implied ratification may arise in various ways. It often occurs when the alleged principal, although not expressly acknowledging the contract as his own, acts in a way that can only be explained on the basis that he accepts the contract as his own. The essence is, in either case, a manifestation of the principal's intention to be bound. [50] Determining whether there has been ratification, in the sense relevant to the law of agency, therefore depends on an assessment of the conduct of the alleged principal. The conduct may consist of acts of the alleged principal himself or acts of someone else who clearly acts with the authority of the alleged principal. The reference here to "acts" extends also to omissions to the extent that, in the particular context, omissions are capable of being of probative value. And it goes without saying that, in a case such as the present, conduct can be relevant only if occurring after the time at which the alleged principal came into existence.
2. While Aztech was overturned on appeal ([2005] NSWCA 319), the appeal did not concern his Honour's summary of the principles of ratification.

Appointment of a receiver

1. The Court has inherent jurisdiction to appoint a receiver and manager to resolve a dispute about the management of property within an organisation, including an association, in addition to jurisdiction under sections 23 and 67 of the Supreme Court Act 1970 (NSW).
2. Lindsay J summarised the principles relevant to the Court's jurisdiction to appoint a receiver as a vehicle for a court-supervised election and collected the relevant authorities in Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 (Sengthong) at [170]-[194]. His Honour cited at length a passage from the judgment of Johnson J in McLean v McKinlay and Ors [2004] WASC 2 at [23]-[38], which includes the following: 36 The appointment of a receiver is necessarily an interim measure. In short, the object of the appointment of a receiver is to protect something which may turn out to belong to another: Clydesdale v McManus and Anor (1934) 36 WALR 89 per Northmore CJ, at 90. As the authors of Meagher, Gummow & Lehane observed at 923: "... one may talk loosely of a receiver of a company, but unless that means receiver of the property (or some of it) of a company the phrase is not only loose but meaningless." 37 However, the protection of property, although a necessary part of the remedy, need not be the primary motivation for the appointment of a receiver. The case of Duffy v Super Centre Development Corp Ltd [1967] 1 NSWR 382 is an example of the appointment of a receiver/manager for the primary purpose of resolving a dispute within an organisation, whilst at the same time preserving the organisation's property. The case, which was an action by minority shareholders for a court-appointed receiver under the Companies Act 1961, illustrates the convenience of the remedy pending the resolution of disputes between shareholders. As Street J observed at 383: "The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company's assets." 38 In my view, providing there is property to be preserved, this type of equitable relief is available despite the fact that it is primarily being sought to resolve conflicts which seriously prejudice the operation of the organisation."

Legal findings

1. The affairs of this Society are littered in conflict and anomalies. The makeshift nature of the Society's constitution and records has opened the door for the warring factions to make competing claims about their entitlement to govern the Society.
2. Both sides have raised numerous defects in each other's actions in order to challenge the alleged lawfulness and hence legitimacy of their respective elections, and consequently their respective mandates to purport to act on behalf of the Society and govern various activities. As noted, the Plaintiffs submit the 18 December 2016 election was invalid, and the 30 April 2017 election was valid, while the Defendants submit the inverse.
3. In my view, for the reasons which follow, I am not satisfied either party has any legitimate claim for the authority. By way of summary, issues going to the validity of the Amendments, the notion of 'Committee' under the Constitution, and the question of membership all go to the invalidity of both the December 2016 and April 2017 elections. These factors alone, but also in addition to the particular issues specific to each election, leave me satisfied neither party have a valid mandate to act on behalf of the Society as the legitimate 'Committee'.

1. The Amendments
2. The handwritten notation at the end of the Amendments in the Constitution appear, in my view, to show 41 people attended the meeting, with 25 votes in favour and 16 against. This means, 25 people out of a total of 41 people voted in favour of the amendments, falling short of the required three-quarter majority under section 57 of the Constitution.
3. The Defendants submit instead of 16 against, the note reads "11" against (Defendants' supplementary submissions 7), but in any case 25 out of a total of 36 people does still not amount to a three-quarter majority. In addition, there is simply no evidence the Amendments were accepted by the relevant minister and certified accordingly. The question is thus whether section 57 of the Constitution should be strictly construed, or some other law means this irregularity can be overcome.
4. I raised, as a threshold issue, the validity of the Amendments, including the New Section 26 being the very constitutional amendment purporting to create the presidential regime each side wished to support on more than one occasion (see T334/12-23; T341/9-16). Neither side responded in writing, and in closing oral submissions neither had any ready answer to the issues. I granted leave to both sides to yet again submit their arguments in writing (T388/36-38). Both have now responded accordingly.
5. The Plaintiffs now accept the Amendments relating to the New Section 26 were ineffective (Plaintiffs' supplementary submissions [9]), while the Defendants argue there is not enough information or tested evidence before the Court to determine whether the Amendments were passed in compliance with section 57 of the Constitution (Defendants' supplementary submissions [7]). The Defendants further submit the Amendments in relation to the New Section 26 are in any case valid by virtue of the operation of section 1322 of the Corporations Act, the presumption of regularity and/or ratification, while the Plaintiffs submit none of these grounds operate to validate the Amendments. I will address each of these points in turn.
6. Before doing so, I note the submissions on the validity of the Amendments centred on the validity of the New Section 26, given the importance the section has on the question of the validity of both elections. No submissions were made specifically on the validity of the "Second Change" in the Amendments.

Insufficient evidence

1. First, it is unsatisfactory for the Defendants simply to state there is insufficient evidence to determine whether the Amendments were sufficiently passed. As one of the parties relying on the Amendments as the very basis for the presidential regime they are seeking to validate, the Defendants bear the onus of proving to the Court the Amendments were validly made.
2. Further, the handwritten notation, while not supported by the minutes referred to in the notation, is, in my view, clear evidence of the number of votes passed in favour of and against the Amendments.

Section 1322

1. The Plaintiffs accept failing to meet the three-quarters majority requirement is not a procedural irregularity, and there is therefore no scope for section 1322 of the Corporations Act to usurp the clear will of the membership (Plaintiffs' supplementary submissions [5]-[6]).
2. The Defendants however maintain relief should be granted under section 1322 as "there is no evidence before the court which suggests that any third-party may suffer substantial injustice that cannot be remedied by any order of the Court if the Court was to rule that the Special Resolution is invalid" (Defendants' supplementary submissions [14]).
3. In my view, the failure to pass the Amendments by the requisite three-quarters majority is a matter of substance which cannot be remedied under section 1322 of the Corporations Act.
4. The Constitution is the lifeblood of the Society. To change the Constitution, and in particular to change or alter key provisions going to the governance of the Society, the criteria for membership and the level of democracy and participation of the members of the Society is, in my view, to change the very fabric of the Society.
5. Pursuant to section 24 and the purportedly amended section 25 of the Constitution, the Board of Directors were to be 15 Directors elected by members. The President, although filling in an important role as chief executive, was otherwise subjected to directives of the Board and had very limited control over the finances of the Society. The New Section 26 had the effect of changing the entire corporate governance of the Society from this democratically elected board to a presidential regime where the President at his complete discretion can nominate his (and only his) "team of 12 to work with him."
6. While it is not entirely clear, in my view the better interpretation of the New Section 26 was that it intended to retain the Board of Directors, but they were no longer going to be elected by the members and instead were to be appointed by the President. Therefore the only elected official after 2000 was the President.
7. Not only does the New Section 26 completely alter the style of corporate governance of the Society, but it has flow on consequences for questions of how people become members, and what membership entails. For example, under section 8 the Board of Directors must accept a written request from a person to allow them to be eligible for membership. As, on one interpretation, the Board of Directors under the New Section 26 is now the President and his team of 12, the question of membership now lies arguably entirely at the discretion of the President.
8. Notwithstanding the remarks of the Chief Justice in Weinstock regarding the broad application of section 1322, I am not satisfied this is a case which falls within the scope of the provision. In my view, changes to questions of governance and membership go directly to the lifeblood of the Society, and can in no way be construed as matters of procedure. The body of people who voted against the Amendments, whether 16 or 11, have been denied their rights under the Constitution, on matters which could cause a serious injustice.
9. Thus, the impact of the Amendments on the corporate governance and composition of the Society is, in my view, one of substance, and not one where any order under section 1322 of the Corporations Act is necessary or desirable.

Presumption of regularity

1. The Defendants submit in the alternative to a section 1322 remedy, the presumption of regularity is invoked, rendering it appropriate to presume, in default of any reason to conclude to the contrary, that the Amendments were passed validly (Defendants' supplementary submissions [17]).
2. The Plaintiffs submit the presumption of regularity is displaced given the evidence concerning the voting on the Amendments, namely the handwritten notation, is unambiguous (Plaintiffs' supplementary submissions [2]).
3. In my view, Darley makes plain the presumption of regularity only applies where there is an absence of evidence going to the act in question. Rather than the handwritten notation displacing the presumption of regularity (as submitted by the Plaintiffs), in my view the presumption never had any application in this case given the existence of evidence plainly showing the Amendments were not passed by the requisite three-quarters majority.

Ratification

1. The Plaintiffs also accept the Amendments cannot be rendered valid by way of ratification. The Plaintiffs note there is no evidence of a members' meeting passing a motion to sanction the offending act, or the unanimous assent of the membership outside of the meeting (Plaintiffs' supplementary submissions [7]-[8]).
2. The Defendants however submit ratification does apply, relying on Aztech to contend that if the Amendments were not validly made pursuant to section 57 of the Constitution, they were subsequently ratified by the conduct of the Society and its members in the past 17 years (Defendants' supplementary submissions [18]-[23]).
3. In my view, ratification as contemplated under Aztech does not apply to the failure to validly make the Amendments. The mere fact members of the Society have abided by the rules of the Constitution and conducted the Society's internal affairs pursuant to the Amendment does not lead to evidence of ratification. There is no evidence of any general meeting or unanimous assent outside of the meetings to pass a motion sanctioning the Amendments notwithstanding the irregularity of failing to have the requisite majority in the 2000 meeting.
4. Further, there is no evidence of any of the members even having knowledge of the irregularity. Without such knowledge, the members would have been unable to ratify or condone the invalid introduction of the Amendments into the Constitution. On these grounds, I am not satisfied the Amendments can be saved by operation of the concept of ratification.

Conclusion on the validity of the Amendments

1. In summary, the Amendments, including the New Section 26, were passed in contravention of section 57 of the Constitution, and, for the above reasons, in my view the Amendments are therefore invalid.
2. If this is right and the Constitution is in its unamended form, there has been no election for directors in accordance with section 18 and related provisions. Thus, in my view, neither the election conducted on 18 December 2016 nor on 30 April 2017 has been properly conducted in accordance with the Constitution. On that basis alone, I am satisfied the results of both elections should be set aside.

2. Committee
3. Even if the Amendments were validly passed, the issue then turns to making sense of the Constitution, and in particular the provisions going to the 'Committee' in light of the New Section 26.
4. As the Defendants acknowledge, the New Section 26 "leaves much to be desired in that it heralded a number of inconsistencies in the Constitution" (Defendants' closing submissions [20]).
5. Notwithstanding the significance of the change brought about by the New Section 26, all of the other provisions in the Constitution relating to the democratically elected board, except for the Old Section 32, remain unaltered. There are multiple references to a director or Board of Directors in the Constitution (sections 2, 3, 8, 11, 14, 17, 18, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 35, 36, 38, 39, 47, 48, 52, 53 and 59). Important among these is section 18, which provides the Society is to be governed by a Board of Directors and two internal auditors to be elected by a majority of members every two years. This provision was not the subject of any amendment in 2000 or thereafter. The New Section 26 makes no reference to the role of internal auditors in the President's "team," nor does it make clear how the President's choice of his "team" sits alongside the requirement the Board of Directors be elected by members every two years.
6. The relationship between the Amendments and the Constitution is ambiguous and difficult to discern. Trying to harmonise and construe what should be read down, implicitly repealed, or left in the Constitution would be a cumbersome task for a lawyer, let alone a lay person who is a member of the Society.
7. Assuming the New Section 26 amendment was valid, it is also unclear whether the Model Constitution provisions relating to 'Committee' are incorporated into the Constitution by operation of section 25(2) of the 2009 Act.
8. As detailed above (see [49]-[51]), matters which the 2009 Act requires an association's constitution to address include matters relating to the composition and functions of the committee, as specified under section 7 of Schedule 1 of the 2009 Act. Where a constitution fails to address these matters, then pursuant to section 25(2) of the 2009 Act, the rules relating to Committee under the Model Constitution (see Schedule 1, Part 3 of the 2016 Regulation) must apply.
9. On statutory construction, the Plaintiffs submit section 25(2) should include the word "adequately," so that it reads "If an association's constitution fails to adequately address a matter referred to in Schedule 1, the provisions of the model constitution with respect to the matter are taken to be part of the association's constitution" (Plaintiffs' closing submissions [55]-[56]). Thus, the substance of the terms of a provision in an association's constitution must be "sufficiently robust so as to leave no scope for the application of the model constitution" (Plaintiffs' closing submissions [54]).
10. As I understand it, the Defendants submit that unlike the predecessor of section 25(2), being section 19(3) of the 1984 Act, section 25(2) does not require a comparison of the Model Constitution with the provisions of the existing constitution. Rather, regard need only be had to whether a Schedule 1 matter is addressed. The Defendants submit the New Sections 26 and 32 of the Constitution "robustly address the relevant Schedule 1 Matter such that section 25(2) has no gap to fill" (Defendants' closing submissions [34], [53]-[57]).
11. In my view, the Defendants construction of section 25(2) of the 2009 Act by reference to its "distinctive difference" in operation to section 19(3) of the 1984 Act is erroneous. It is true both relevant provisions differ in terminology, but in my view there is no difference in operation or effect. Both Acts require the rules of an association to make provision for and/or address a matter in Schedule 1 of the Act. 'Committee' is a "matter" under Schedule 1 of both Acts, with similar, but not identical, sub-matters under both Acts.
12. Section 11(1) of the 1984 Act enabled associations to make provision for the matters in schedule 1 of that Act "by adoption or otherwise" (my emphasis). This wording clearly enables an association either to adopt the precise drafting of the Model Constitution (or "model rules" as they were termed under the 1984 Act), or draft its own rule, so long as it provides for each and every matter in Schedule 1.
13. Section 19(3) of the 1984 Act must necessarily be construed harmoniously with section 11 (see Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109 per Gibbs J). Section 11 sets out the statutory obligation, which must be discharged by the association's constitution adopting the model rules or otherwise making provision for matters set out in Schedule 1. Section 19(3) sets out the consequences of not having done so. The words "matter" and "make provision for" in section 19(3) are clearly a reference back to section 11, which is in turn a reference back to Schedule 1. Thus, section 19(3) is clearly not removing an association's right to draft its own constitution. In other words, a failure to adopt the terms of the model rules does not lead to an association being required to adopt those terms. So long as the association's constitution provides for the matters set out in schedule 1, whether by adoption of the model rules or otherwise, section 19(3) is not enlivened.
14. In my view, section 25 of the 2009 Act operates in the exact same way, by in effect fusing together sections 11 and 19(3) of the 1984 Act. Under section 25, an association can either adopt all the rules of the Model Constitution (section 25(1)), part of those rules, or none of the rules. So long as the association's constitution addresses the matters set out in Schedule 1, section 25(2) will not be enlivened. Thus, in determining whether section 25(2) is engaged, reference must be had to the matters set out in Schedule 1, and not the proposed rules for those matters under the Model Constitution. This is consistent with the Defendants' submission on section 25(2), but in my view the Defendants' reasoning process in drawing distinction with the 1984 Act to reach this conclusion was erroneous.
15. Turning to the Society's Constitution and assuming the New Section 26 is a valid provision, the question is whether the Constitution fails to address any or all of the matters going to the 'Committee' under schedule 1 of the 2009 Act.
16. 'Committee' is the only matter in schedule 1 which is dealt with in any specificity. Unlike the remainder of the matters in schedule 1 which are set out in one sentence, 'Committee' includes six sub-matters going to the "composition and functions of the committee" which much be addressed. This detail reflects the integral role the 'Committee' plays in an association, being the body governing the entire association.
17. The first complication is whether the presidential style regime set up under the New Section 26 can be construed as a 'Committee' as understood under the 2009 Act. The Plaintiffs do not address me directly on this point, while the Defendants submit the regime set up under the New Section 26 should be understood as a 'Committee.' The Defendants point to the broad definition of term under the 2009 Act as evidence the Act intended to accommodate flexibility in the terminology used by an association to describe its governing body. They further note there is no provision under the 2009 Act which requires committee members to be elected by members rather than nominated by an elected President. The only requirements are set out in Part 4 of the 2009 Act, and include section 28 providing the committee must include 3 or more members, each of whom is aged 18 years or more and at least 3 of whom are ordinarily resident in Australia (Defendants' closing submissions [24]-[32]).
18. Further, Schedule 1 of the 2009 Act containing the matters which should be addressed in an association's constitution if the association does not want the Model Constitution rules to apply, include "the election or appointment of the committee members"; cl 7(a), Schedule 1 of the 2009 Act. The Defendants submit this shows the 2009 Act contemplates some members of the Committee will be appointed and not elected (Defendants' closing submissions [33]-[35]).
19. On one view, having only one elected official on the Society's purported 'Committee' (being the President's team) is antithetical to the notion of a Committee as understood under the 2009 Act. The object of the 2009 Act includes making provisions for the corporate governance of associations; section 3(b) of the 2009 Act. Further, the remainder of the 'Committee' matters which must be addressed in an association's constitution under section 7 of Schedule 1, include matters such as "the maximum number of consecutive terms of office of any office-bearers on the committee" (section 7(b)), "the filling of casual vacancies occurring on the committee" (section 7(d)) and "the grounds on which, or reasons for which, the office of a committee member is to become vacant" (section 7(c)). On one view, these provisions suggest the 2009 Act contemplates a transparent, accountable and democratic form of corporate governance, and not a presidential style regime like the one established under the New Section 26.
20. On another view, as the Defendants submit the notion of a 'Committee' is broad both under the 2009 Act and in ordinary parlance, and could technically encapsulate a 'Committee' of only one elected official.
21. However even if this is the case, the issue then turns to the status of the unamended provisions in the Constitution relation to the 'Committee.' There are provisions, for example, for the term of a Director's office (the Old Section 26), and the grounds in which a Director's office becomes vacant (section 27), but if the New Section 26 was a valid amendment, then it is unclear whether these provisions which contemplate a democratically elected Board of Directors (as the governance was pre 2000), should be read down, by implication or otherwise. If so, then arguably the Constitution is left "failing to address" matters such as the maximum number of consecutive terms of office of any office-bearers on the committee (section 7(b) of Schedule 1) and the grounds on which the office of a committee member is to become vacant (section 7(c) of Schedule 1). If this is the case, then by operation of section 25(2) the provisions relating to those sub-matters under the Model Constitution must be imported into the Society's Constitution, leading to a further complication as to how those provisions sit harmoniously with the New Section 26 which is predicated on an entirely different style of governance.
22. In my view, a member of the Society (including a committee member) should not and cannot be expected to navigate their way through this myriad of issues to make sense of the Constitution, and in particular understand their Constitutional rights and obligations. In my view, the patchwork state of the Constitution makes this task near to impossible, and seriously underwrites the validity of any election allegedly conducted pursuant to the terms of the Constitution.

3. Membership
4. The validity of both the December 2016 and April 2017 elections is further compromised by the Society's seemingly ad hoc approach to membership.
5. There is no doubt the calling of the December 2016 election prompted many people to purport to join the Society. As set out in section 8 of the Constitution, people must complete an application form which must be accepted by the Board of Directors to become a member. In addition, people must make regularly yearly contributions and abide by the Society's rules.
6. According to the Defendants, there are 682 listed people's names, address and phone numbers on the Society's membership list. Membership forms purported to be on the back of the notice of the election sent out on 11 October 2016, and provided for the signature of both the applicant and the President. There are 676 membership forms, with one form dated prior to 11 October 2016, 160 forms dated between 11 October 2016 and 18 December 2016, 491 forms dated on 18 December, and 24 forms either undated or with an unclear date. Of these 676 membership forms, only 63 forms had the signature in the spot for the applicant, and also a signature in the spot of the President (Affidavit of Ms Shannon Pennicott dated 4 September 2017 [3]).
7. Further, according to the Defendants, what they term "On-the-Spot Registration" was carried out at the December 2016 election, with persons having their identity authenticated, filling out a membership form and given a ballot paper to vote, and this complied with section 8 of the Constitution (Defendants' opening submissions [46]-[48]).
8. These numbers and the membership form itself raise a number of issues. First, as noted, the membership form people were invited to fill out in the lead up to and on the day of the December 2016 election required the signature of the President. The forms were not directed to the Board of Directors, and there is no evidence of any board resolution prior to the elections authorising anyone such as Mr Thin Em, who was appointed by the returning officer to issue the white cards, to accept membership applications. If the Amendments were valid, it is difficult to construe section 8 as effectively being amended by implication to provide that membership should be by way of written request to the President only.
9. Secondly, less than 10% of the 676 membership forms appear to have been approved by the President, and whatever practice was adopted was plainly not uniformly applied to each membership form. Finally, it is unclear whether those purporting to join the Society also offered or agreed to offer a yearly contribution to the Society, and how exactly that requirement worked in practice.
10. In my view, membership of any organisation is a fundamental provision in the sense that the association is all about its members. How a person becomes a member, especially when one of their functions is to vote at elections, is very important in determining whether or not the election has been properly conducted and the results withstand scrutiny. In light of this, I am satisfied section 8 of the Constitution should be strictly complied with. Notwithstanding the Defendants' attempts to consolidate the membership information, in my view it is impossible to determine who and how many people were members of the Society on the date of the December 2016 election, and thereby eligible to vote. This has a flow on effect, in my view, to the April 2017 election, where again the status of the voters as member is unproven.

The December 2016 election

1. The Plaintiffs submit it is impossible to determine what the result of the December election would have been had the election been conducted in accordance with the Constitution, and it follows that the result is void (Plaintiffs' closing submission [152]).
2. The Defendants submit persons who voted in the December 2016 election were members as defined by section 8 of the Constitution, and that the December 2016 election complied with all relevant provisions of the Constitution including but not limited to sections 8, 10, 17, 20, the New Section 26, the Old Section 26, and section 41(3) (Defendants' opening submissions [41]; Defendants' closing submissions [78]).
3. In my view, considerable evidence, much of it untested, of electoral irregularity at the December 2016 election casts serious doubt on the integrity of that particular election. The December 2016 election was, by all accounts, a chaotic and crowded affair, and in stark contrast to prior elections where allegedly fewer than 100 members would attend to vote (Affidavit of Sam Thong dated 8 August 2017 [8]; Affidavit of Mr Sakal Men dated 8 August 2017 [9]).
4. Mr Sakal Men, the outgoing President, recalled being interrupted by the returning officer, Mr Por Heang Ya, during his speech at the election, an account also supported by Ms Davey Chea (Affidavit of Mr Sakal Men dated 8 August 2017 [10]; Affidavit of Ms Davey Chea dated 8 August 2017 [30]). The Defendants submit this should be characterised as an isolated incident, and not one of interference since Mr Sakal Men was being told to stop because he was digressing from issues relevant to the election (Defendants' closing submissions [84]). In my view, while this may not be conclusive evidence of interference, it speaks to the broader disorderly and politically charged environment in which the December 2016 election took place.
5. Beyond Mr Sakal Men's account, there are numerous accounts from the Plaintiffs' witnesses of voter irregularity. For example, Mrs Sisomar Srey said she saw one voter whom she identified as Mrs Hun Seda writing on a number of ballot papers. When she confronted her, Mrs Seda allegedly told Mrs Srey she was helping others vote too, though Mrs Srey did not see Mrs Seda helping anyone in this manner (Affidavit of Mrs Sisomar Srey dated 3 August 2017 [7]-[8]).
6. Although Mrs Srey was cross-examined, I do not regard any concession she made especially in relation to whether or not she could tell whether the precise number of ballot papers in Mrs Seda's hands, as affecting her overall testimony and her credibility. I regarded her as a witness of truth and I accept her evidence.
7. Mrs Srey's evidence is consistent with numerous other accounts of people placing multiple votes into the one ballot box and taking voting cards without having membership approved (Affidavit of Mr Chan Ven dated 7 August 2017 [11]; Affidavit of Ms Davey Chea dated 8 August 2017 [31]; T202/33-46; T221/10-15). Mr Sabouphary Tuy also recalled people at the election complaining about irregularities with voting, and in particular people voting more than once (Affidavit of Mr Sabouphary Tuy dated 13 July 2017 [4]). Again I accept his evidence.
8. Ms Davey Chea recalled being given a ballot form without anyone checking her identity or if she had already taken a form (Affidavit of Ms Davey Chea dated 8 August 2017 [28]). Ms Chea was not cross-examined.
9. Mr Chan Ven, one of the initial candidates in the December 2016 election, felt so strongly about the irregularities he saw that he decided to withdraw (Affidavit of Mr Chan Ven dated 7 August 2017 [12]). I accept his evidence in that regard.
10. The Plaintiffs' evidence on various irregularities, piecemeal though it may be, is consistent between witnesses and creates the impression of widespread electoral irregularity. Although each of these witnesses (except Ms Chea) was cross-examined having read their materials and heard them I am satisfied that each in turn saw things occur which not only troubled them but at least prima facie it would appear to me to amount to irregularities, and contrary to the Defendants' submission there is no factual evidence supporting the Plaintiffs' allegation of multiple voting (Defendants' closing submissions [91]).
11. A further anomaly compromising the December 2016 election is the fact that despite Mr Chan Ven withdrawing his candidature, he was still counted as a candidate in the election and his votes were counted.
12. The Defendants rely on the evidence of Mr Thin Em in submitting there were procedures in place at the December 2016 election to address multiple voting (Defendants' closing submissions [85]-[95]). In cross-examination, Mr Thin Em gave evidence of the procedure in which people would vote, and how his job was to accept the membership forms and exchange them for ballot papers (T93/7-11). However, in my view Mr Thin Em's evidence is of little assistance to the Defendants in submitting there were no voting irregularities. Mr Thin Em was sitting outside the hall, he could not confirm whether everyone who attended to vote had been identified, and he noted how the membership forms had not been signed by the President (T97/21-30). On these grounds, I am satisfied evidence as to irregularities was one sided in favour of the Plaintiffs.
13. With respect to the returning officer, while it appears he was appointed prior to the December 2016 election by Mr Sakal Men as the then President (T96/46-T97/7; T190-18-24; T193/2-4), there is no letter of appointment, no resolution of any Board of Directors, no evidence of what experience, if any, the returning officer had in conducting elections, and no provision in the Constitution, nor in the Model Constitution, providing for such a role, let alone setting out the scope of his responsibilities and powers.
14. Further, there is no evidence the returning officer was aware of any irregularities taking place at the December 2016 election. Indeed, based on the evidence of Mr Chan Bunsophy Kong (T204/38-42) it is likely many of the voters did not know who the returning officer was at the December 2016 election, and thus had no official to report the irregularities to.
15. The Defendants did not call the returning officer of the election, and did not provide a reason why. I am satisfied in relation to the returning officer, as the Plaintiffs have submitted (Plaintiffs' closing submissions [150]) I can draw an inference he would not have assisted the Defendants' case.
16. The Defendants further argue the Plaintiffs accepted the validity of the December 2016 regime, and that the movement to oust that regime only began once the decision to withdraw visa sponsorship of the Three Monks was made. Thus, the Plaintiffs' "challenge of the December Election is an after-thought, albeit one without merit" (Defendants' closing submissions [73]). In my view, the failure immediately to challenge the December 2016 election does not in any substantial way undermine the tide of evidence pointing towards electoral irregularity, nor does it follow that the December 2016 election was in fact validly conducted. It is clear complaints and objections were made at the time of the December 2016 election. Apart from trivialising the extent and likely effect of the irregularities, the Defendants did not seek to put forward a positive case by way of evidence to show the irregularities were insignificant or irrelevant. In my view, there is an abundance of evidence which I accept, sufficient to give rise to an inference of wide spread irregularity on the day.
17. On these grounds, I am satisfied the December 2016 election was so plagued with irregularities that even without the issues regarding the invalidity of the presidential regime, questions of membership, and the confusion of the composition of the committee, there is strong doubt as to whether the election was validly conducted in accordance with the Constitution.

The April 2017 election

1. In my view, there are also questions over the validity of the April 2017 election, beyond my findings there is no constitutional basis for the presidential style body purportedly in power as a result of the election.
2. The Plaintiffs submit the Constitution does not adequately address the calling and notice of, and procedure at, general meetings, and thus section 27 and 32 of the Model Constitution applies. Under these sections, at least 5% of members can convene a special general meeting if the committee fails to call one within a month of receiving the members' requisition, and a show of hands is sufficient to determine questions at these meetings; section 27 and 32 of the Model Constitution. The Plaintiffs submit the April 2017 election was done in accordance with these sections (Plaintiffs' closing submissions [58]-[59]; T351/33-T352/29; T355/3-21).
3. The Defendants submit the Constitution already addresses the calling of special meetings in sections 17, 20, 21 and 22, and thus section 25(2) of the 2009 Act has no role to play. On these grounds, the Defendants submit the April 2017 election was in contravention of the special meeting provisions of the Constitution, and thereby invalid. In the alternative, the Defendants submit the requirements of section 27 of the Model Constitution were not satisfied as there is no evidence before the Court showing there was a written requisition by 5% of the total number of members as required by section 27(3) (Defendants' closing submissions [122]-[144]; T371/30-41).
4. In my view, even assuming the Plaintiffs' submissions are correct, the issues are mechanical issues, given it is entirely unclear who can be at the meetings and who can show their hands.
5. Further, unlike the December 2016 election which at least had some means in which voters could identify themselves, the April 2017 election was conducted in such a way that it is impossible to determine what people, if any, were actually members of the Society. The Defendants submit, correctly in my view, the "attendance record" annexed to Mr Thin Em's Affidavit dated 8 August 2017 (Annexure B), is of little assistance given the incomplete and at times ineligible state of the list, and the fact the list does not actually state the persons were those who voted at the April 2017 election. Rather, the list is appended to a declaration stating "I support the three venerable with their visa extensions and the removal of the current CBS of NSW Inc. Management. Date: 30 April 2017" (Defendants' closing submissions [135]-[138]).
6. In my view, it matters not that every person at the meeting held on 30 April 2017 voted unanimously for one candidate only, as reflected in the minutes of the meeting (Affidavit of Mr Thin Em dated 8 August 2017, Annexure A). The fact remains that, as the Plaintiffs concede (T357/4-6), there were people who voted who were not members, and there is no way of determining precisely how many, if any, members, voted in favour of electing Mr Thin Em.
7. These issues regarding the record of turnout and membership particular to the April 2017 election raise further questions as to the legitimacy of that election, even without consideration of the Amendments, the workability of the Constitution, and the general issue of membership.

Conclusion on legal findings

1. In my view, the primary issue with both parties' cases is the Amendments, and of most relevance the New Section 26, were never validly passed. Thus, even without the plethora of other issues, both the December 2016 and the April 2017 election results are invalid as they have been predicated on the governance of the Society being the presidential style regime set out under the New Section 26.
2. In addition to what I view as this insurmountable issue, both elections are also tainted by questions of membership, the composition and existence of a Committee and electoral irregularity.

Findings of fact

1. In my view, it is also necessary to make some findings of fact in light of the weight of evidence given to certain factual controversies in these proceedings, and the impact such findings may have on the relevant persons at the centre of these controversies.
2. As is obvious from above, the genesis of the disputation between factions of the community in question is the manifestation of serious dispute between the eleventh defendant, Ven Chuan Huot on one side, and the second plaintiff, Ven Sakhone and others on the other. As I have already remarked, the community is divided on the issue as to who is or is not at fault.
3. The December 2016 regime, siding with Ven Chuan Huot, have clearly chosen to disbelieve Ms Chea, even though she has sworn an affidavit and was prepared to make herself available for cross-examination in court. I am satisfied the reason she attended the temple on 19 September was clearly to have a confrontation with Ven Chuan Huot because she felt betrayed. She also believed he had intended to reciprocate her intentions and feelings and when he chose to ignore them she may have seen that she was upset and angry. I accept her evidence and I am satisfied that Ven Chuan Huot did have a relationship with her as she suggests. He did not seek to deny any of her allegations. Indeed he was present in the courtroom during the entirety of the case.
4. Further, in my view there is no doubt that Ven Chuan Huot is the sole source of the allegations against the Three Monks. It was he who not only sent the letter dated 14 November 2016 to the Department of Immigration, but also attached to it a statutory declaration. Again of course he gave no evidence about the basis for him doing so, or how he came to be authorised to write to the Department on the letterhead of the Society.
5. Even if I accept the evidence of Mr Meng Eang Thai that he and, I infer others in his "team," did not know apparently that Ven Chuan Huot had written on the Society's letterhead (T241/26-35), neither Mr Meng Eang Thai nor anybody else in his team it seems have thought to challenge Ven Chuan Huot as to his version of events, and instead have accepted unequivocally what he has had to say. Further, Mr Meng Eang Thai indicated in the course of evidence before me he was unaware whether Ven Chuan Huot, as the author of the letter to the Department of Immigration, had the authority to write such a letter (T258/42-T259/12).
6. There does not appear to have been an investigation properly undertaken by Mr Meng Eang Thai and his team into the allegations against the Three Monks. Quite the opposite, they installed security cameras and gave Ven Chuan Huot control over those devices. On his say so alone it seems they appear not to want to support the Three Monks in their applications for extensions of visa. That process, in my mind, is very one sided and biased in favour of Ven Chuan Huot and, on the evidence that I have heard, contrary to the evidence and frankly contrary to common sense.
7. Unlike their accuser, the Three Monks have sworn their denials and made themselves available for cross-examination. True it is, as the Defendants submit, that part of each of the Three Monks' affidavits are identical in form (Defendants' closing submissions [165]), but in my view this does not detract from the credibility of their denials about acting violently towards Ven Chuan Huot and any wrongdoing of the sort alleged against them. I accept the evidence of the Three Monks. In my view, the allegations levelled at them by Ven Chuan Huot are baseless and contrived.
8. In regards to the status Ven Chuan Huot, I consider his conduct entirely unsatisfactory. In my view, he was the sole genesis of discontent in the community. This community has been seriously divided and its affairs seriously disrupted by what appears to me to have been a misinformation campaign undertaken by Ven Chuan Huot, who has managed, quite successfully, to cause divisions in the community, and have the December 2016 regime side with him.
9. Whilst these matters I have just referred to do not bear upon the legal issues I am of the view they do bear upon my discretion as to what is the appropriate remedy going forward.

Relief

1. The affairs of the Society are chaotic. That chaos is in my view brought about by ambiguity in and confusion about the Constitution, together with deep divisions in the community.
2. I raised the option of appointing a receiver with the parties during the hearing (T331/32-37), inviting them to address me on the issue. The Plaintiffs submit the affairs of the Society can best be accomplished by directions to Ven Sakhone as to steps he will take as the Society's sole officer in filling the vacancies on the committee pursuant to section 27 of the Constitution. In the alternative, the Plaintiffs accept the appointment of an administrator would be a further means by which the Court could rectify the Society's unsatisfactory state of affairs, but note this appointment would not disentitle them to their relief (Plaintiffs' supplementary submissions [10]-[11]).
3. The Defendants submit the appointment of a receiver, while within the Court's jurisdiction, is a remedy of last resort. The Defendants note a receiver could deter worshippers from attending at the temple if the receiver did not have an understanding of the religious or cultural background of the members of the Society (Defendants' closing submissions [145]-[150]).
4. In my view, precisely who and on what basis a person can become and remain a member of the Society is a matter of vital importance to this Society as it is to any society, and yet the very status of people who regard themselves as members is at the heart of confusion concerning the Society. The presidential style regime introduced in 2000 does not, in my view, assist the situation. It is, as has been shown, a recipe for discontent and dissention. It is not in the best interests of the Society and the wider Cambodian community that this state of affairs continues.
5. I accept the appointment of a receiver should be done as a last resort, however in these circumstances, given the number of defects I have found in determining the invalidity of both respective elections, the unworkability of the Society's Constitution, and the significant animosity between the Society's factions, in my view nothing short of a receiver is necessary to return the Society to constitutional order.
6. There is no reason in principle why a receiver should not be appointed (see Sengthong at [187] per Lindsay J), especially given the defects I have found. Further, there is no evidence to support the Defendants' claim a receiver will deter worshippers from the temple.
7. In keeping with the Court's jurisdiction to appoint a receiver, and to mould the appointment to enable the management of the association be return to constitutional order (see Sengthong at [172] per Lindsay), I propose to appoint a receiver, as an officer of the court, to undertake management of the business of the Society. The receiver's express purpose is first to make application to the relevant department for replacement of the Society's Constitution by the Model Constitution as provided in the 2009 legislation.
8. I apprehend the Objects clause of the Society's Constitution, set out under clause 1, would be retained since it captures the cultural and religious purposes particular to the Society. Further, I apprehend the retention of the ex officio roles of Abbot and Assistant Abbot in the Constitution, given the importance of these positions to the Buddhist tradition and custom. I have no doubt the receiver will take these matters into account in adopting the Model Constitution.
9. Pursuant to the newly adopted Constitution, the receiver will then manage the timely admission of all persons to membership of the Society, and oversee the calling and conduct of the election of the Society's Board of Directors. Thereafter, the Society will be entirely in control of its own affairs, and able for example to make further amendments to the adopted Model Constitution. In my view, this arrangement mitigates any real risk the Defendants raise about deterring worshippers from the temple.
10. The effective removal of both regimes leaves open the question of which person the receiver should deal with for the introduction of the Model Constitution and any further qualifications. The evidence discloses the December 2016 regime, by reason of their support for Ven Chuan Huot, purported to replace the Abbot and Assistant Abbot by effectively changing the description of their roles. As already noted, Mr Meng Eang Thai candidly acknowledged this approach was taken to avoid infringement of the Constitution (T276/46-T278/2).
11. The device used by the December 2016 team, in my view, did not have the effect of validly removing the former Abbot (Ven Sakhone), and was simply a naked device used to appoint someone of their own faction, being Ven Chuan Huot. It follows that if the previous Abbot and Assistant Abbot had been (and I assume were) elected by usual custom and practice, then they should remain as Abbott and Assistant Abbot.
12. Absent ill-health or resignation, the evidence shows the Abbot is the most senior person in the temple (T164/32-34). Thus, if the receiver does need to deal with someone from the Society, in my view Ven Sakhone, as the current Abbot of the temple, is the most appropriate person to fulfil this role. In saying this, it is unlikely the Abbot will play a real role in this transitional process with the receiver beyond perhaps any further qualifications to the adoption of the Model Constitution. Further, the receiver should have liberty to restore the matter if further directions regarding the activities above are needed.
13. It is of course a matter for the newly elected committee to decide if, and to what extent, they will support the residence of the Three Monks. However, I again should make plain that, in my view, there was no legitimate basis for any criticism to be levelled at the Three Monks or Ven Sakhone, and the letter sent to the Department of Immigration by Ven Chuan Huot is based on a series of falsehoods contrived entirely by him.
14. As neither party has been successful in their respective claims, I would refuse much of the relief sought, whether injunctive or declaratory. However, I will hear the parties on appropriate orders that can be made as soon as possible to give effect to my judgment. I also invite the parties to have discussions as to the appointment of a receiver, and if an issue arises the matter should be brought before me on 24 hours' notice.
15. I further invite the parties to come before me when appropriate to determine the question of costs.

Amendments 24 October 2017 - coversheet: Cases cited Australia Pty Ltd to Darley Australia Pty Ltd. para [53] change "discretion of court" to discretion of the court". para [108] change, "lead an association" to lead to an association". 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: 24 October 2017