• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 98(1)
Uniform Civil Procedure Rules 2006 (NSW) r 20.14, 28.2, 42.1, 42.7(1)

Cases Cited: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Banque Commerciale SA (En Liqn) v Akhil Holdings Limited (1990) 169 CLR 279; [1990] HCA 11
Century Medical Inc v THLD Limited [2000] NSWSC 5
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Kabir Ahmed v Ayubur Rahman Chowdhury [No. 2] [2011] NSWSC 954
Kabir Ahmed v Ayubur Rahman Chowdhury [No. 3] [2011] NSWSC 159
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218
Southwell v Bennett [2010] NSWSC 1372
State of New South Wales v Stanley [2007] NSWCA 330
Street v Luna Park Sydney Pty Limited [2007] NSWSC 697
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276

Category: Principal judgment

Parties: Sanjay Deshwal (Plaintiff)
Nitin Setia (First Defendant)
Subba Rao Varigonda (Second Defendant)
Balu Vijay (Third Defendant)
Parag Shah (Fourth Defendant)
Michael Thangavelu (Fifth Defendant)
Little India Harris Park Business Association Incorporated (Sixth Defendant)

Representation: Counsel:
A E Maroya (Plaintiff)
J D Cook (Defendants)
Solicitors:
A Plus Legal (Plaintiff)
YST Legal (Defendants)

File Number(s): 2025/00144318

Publication restriction: Nil

JUDGMENT

Introduction

Background

1. On 8 April 2026, the defendants filed a Notice of Motion seeking, inter alia, orders for the determination of a separate question and appointment of a referee to determine said question.

2. The substantive proceedings relate to the activities of an incorporated Association, Little India Harris Park Business Association Incorporated (the sixth defendant or the Association). The plaintiff claims to be a current and valid office bearer of the Association. The first, second, third, fourth, and fifth defendants also claim to be valid office bearers. There is a dispute on these issues, together with a dispute as to the validity of various meetings and actions undertaken at and in relation to those meetings.

3. The first to fifth defendants (the defendants) are: Nitin Setia, Subba Rao Varigonda, Balu Vijay, Parag Shah, and Michael Thangavelu (also called Manigandan Thangavelu), respectively.

4. The defendants are the applicants on the Motion. The respondent is the plaintiff, Sanjay Deshwal.

Summons

5. In the Summons, the plaintiff claims that two purported meetings of the Association, being a special general meeting that took place on 29 July 2024, and an annual general meeting (AGM) that took place on 20 August 2024, were not held in accordance with the Association’s Constitution and were thus invalid and of no effect. Associated with this, it is claimed that the ballots for and elections of office bearers undertaken at those meetings were invalid and of no effect.

6. I will refer to the two meetings as the disputed meetings. Each of these meetings was said to have been convened by the defendants.

7. The plaintiff claims that, also on 20 August 2024, an AGM took place that was conducted in accordance with the Association’s Constitution. It is contended that the meeting was regularly conducted, and that the office bearers who continued in office at that meeting are the de jure office bearers of the Association. The plaintiff is one of those office bearers, being the President.

8. I will refer to the 20 August 2024 meeting the plaintiff says is valid as the August meeting.

9. Given the above, the hearing of the substantive proceedings will involve, at the very least, an inquiry into whether each of the three meetings was conducted in accordance with the terms of the Association’s Constitution, and whether the election of the office bearers at each of the meetings was valid.

Notice of Motion

10. By Notice of Motion filed on 8 April 2026, the defendants seek the following orders:

“(1) An order granting leave to the first to fifth defendants to file the cross-summons in the form attached to this Motion.

(2) An order pursuant to r.28.2 of the Uniform Civil Procedure Rules 2006 (NSW) (UCPR) for the determination of the following separate question: who are the present members of the sixth defendant, Little India Harris Park Business Association Incorporated…

(3) An order, pursuant to r.20.14 of the [UCPR] appointing a referee for the purposes of making an enquiry and report into:

a. The identity of the current members of the Association who would be entitled to vote at a general meeting of the Association; and

b. The identity of persons who, if not members of the Association are nevertheless eligible for approval as members of the Association if the Association had a functioning Executive Council.

(4) An order that the parties’ respective claims proceed by way of pleadings.

(5) Costs.

(6) Such further or other order as Court deems fit.”

11. I will refer to the orders sought at Orders 2 and 3 as the Rule 28.2 order and the Rule 20.14 order, respectively.

12. At the commencement of the hearing, counsel for the defendants clarified that the making of the Rule 20.14 order was only pressed if the Court decided to make the Rule 28.2 order (TR P9 L9-35).

13. In support of the orders sought on the Motion, the defendants relied on six affidavits, five of which have been served in the substantive proceedings. Those affidavits are:

14. Affidavit of Yashvi Shah dated 02 April 2026;

15. Affidavit of Subba Rao Varigonda dated 25 September 2025;

16. Affidavit of Nitin Setia dated 25 September 2025;

17. Affidavit of Michael Thangavelu dated 01 September 2025;

18. Affidavit of Dr Balu Vijay dated 28 August 2025; and

19. Affidavit of Parag Shah dated 28 August 2025.

20. The Motion was heard on 31 July 2026. Mr J Cook of counsel appeared for the defendants and provided written submissions (DWS). Mr A Maroya of counsel appeared for the plaintiff and provided written submissions (PWS). Both counsel made further oral submissions in the course of the hearing.

Proceeding by way of pleadings

15. Order 4 of the Motion related to an order that the parties’ respective claims proceed by way of pleadings. In response, the plaintiff submitted that no pressing need had been identified for the parties to be put to this expense (PWS [3]).

16. There was no evidence before the Court that the defendants had, before these interlocutory proceedings, sought any particularisation of the plaintiff’s claim, such that they claimed they did not know the case they were required to meet (per Banque Commerciale SA (En Liqn*) v Akhil Holdings Limited* (1990) 169 CLR 279; [1990] HCA 11 at 286-287). In the course of the hearing, counsel for the plaintiff confirmed the plaintiff had not received any letter containing requests of that nature from the defendants (TR P28 L35-42). Counsel for the defendants made no submissions to the contrary.

17. To this recent complaint in relation to a lack of particulars, counsel for the plaintiff confirmed (from the Bar table) that if a request of that nature were to be made by the legal representatives of the defendant to those of the plaintiff, this issue could be informally dealt with. Counsel for the defendants stated (from the Bar table) the defendants would be content with this approach. Accordingly, I have inferentially taken it that Order 4 was no longer pressed (TR P28 L46 – P29 L11).

Draft Cross Summons

18. The plaintiff has indicated that he consents to the order sought in relation to filing of a Cross Summons (Order 1), a draft of which was included in the evidence (the draft Cross Summons). That consent is subject to the ability of the plaintiff to serve any further evidence in chief that may be required, and to the making of an order that the defendants pay any of the plaintiff’s costs that are thrown away by reason of the filing of the Cross Summons (PWS [1]).

19. In the course of the hearing, I commented that those conditions seemed fairly standard, but invited the defendants to make submissions on the subject. Counsel for the defendants appeared to agree that the conditions were standard and made no submissions to the contrary (TR P2 L25-30).

20. The draft Cross Summons seeks orders and declarations that are apparently responsive to a number of the claims made in the Summons, however, it also seeks declarations and orders beyond this, notably in relation to the 2023 removal allegations (see [25] below) (TR P2 L34-41).

21. Relevant to the Motion, however, the draft Cross Summons also seeks an order (Order 9) that is identical to order 3 sought in the Motion, being the Rule 20.14 order. Counsel for the defendants confirmed that the Rule 28.2 order was sought in relation to order 9 of the draft Cross Claim (TR P9 L26-35).

22. Of the Rule 20.14 order, counsel for the defendants explained that that inquiry in relation to membership, or eligibility for membership, in the Association was aimed at the current position. This is as opposed to the framing of the Summons, and the majority of the draft Cross Summons, which is “backward looking” in so far as there will be an examination of the validity of past meetings and elections (TR P2 L46 – P3 L15).

23. In all of this, I infer that the parties ask the Court to consider the issues contained in the Motion (other than Order 1) “as if” the draft Cross Claim had already been filed (see TR P13 L50 – P14 L32). I consider it to be in the interests of the dictates of justice for the Court to proceed on this basis (per ss 56-58 of the Civil Procedure Act 2005 (NSW) (CPA)).

Summary of Conclusion

24. For reasons set out below, I propose to make Order 1 of the Motion, as consented to by the plaintiff, together with the associated orders sought by the plaintiff. I otherwise propose to dismiss the balance of the Motion.

Submissions of defendants

Nature of dispute

25. The defendants in their submissions set out as “Summary of Case” their own allegations in relation to events occurring earlier in time to the disputed meetings (DWS [7]-[14]). The defendants allege that, in November 2023, the year before the disputed meetings, the plaintiff and others purported to remove a number of members of the Association, which the defendants say was invalid (the 2023 removal allegations) (DWS [11]).

26. The defendants also say that, throughout 2024, they made inquiries regarding financial and other possible mismanagement of the Association, and that their evidence filed in the proceedings contains details concerning financial and other issues (DWS [14]). I will refer to these allegations made by the defendants as the 2024 mismanagement allegations.

27. The defendants also set out their position as to what they understand to be the four areas of dispute in the substantive proceedings (DWS [17]):

“The steps taken by the defendants were valid and, to the extent of any invalidity, the defendants seek (via [the draft Cross Claim]) confirming the validity of specific steps notwithstanding any contravention of the constitution.

The attempt by the plaintiff to expel specific members of the Association in or about 11 November 2023 is invalid.

There are bona fide concerns held by the defendants as to suspected mismanagement by the plaintiff.

Even if the plaintiff is correct in relation to [the disputed meetings]… it does not follow that the plaintiff and his associates are the legitimate officeholders and members of the Association.”

Separate question

28. In support of their application for a separate question, the defendants contend that such an approach will serve various purposes, which include (DWS [21]):

29. There is an AGM due before the end of 2026, and so determination of current officeholders is of paramount concern;

30. At present the Association is in a tenuous status quo;

31. It would provide a clean slate;

32. It would avoid a fulsome inquiry of the past;

33. The issues decided as a separate question could resolve other issues;

34. If a new committee is elected, as the Association’s membership is confirmed, the Association can return to self-governance and decide then what steps should be taken in relation to the conduct of the parties in the past, including any alleged financial mismanagement.

35. More generally, the defendants say there is a palpable need for the Association’s membership, officeholders and general business to be regularised. They say that the best way of achieving that end is for steps to be taken to determine who the present members of the Association are, and to facilitate the calling of an AGM so that the valid members can elect a new committee, which may resolve all or much of the balance of the parties’ dispute (DWS [30]).

36. In support of these submissions, the defendants rely on s 56 of the CPA, as well as the cases of Kabir Ahmed v Ayubur Rahman Chowdhury [No. 2] [2011] NSWSC 954 (Ahmed No 2) and Kabir Ahmed v Ayubur Rahman Chowdhury [No. 3] [2011] NSWSC 1597 (Ahmed No 3) (together, the Ahmed cases), which “[have] a number of important parallels to the present case [and provide] further support for the proposed approach” (DWS [23]).

37. Notwithstanding the defendants’ apparent concern to advance proceedings having regard to the potential for an AGM later this year (and other issues), I note that this Motion was filed over a year after the filing of the Summons and also note that no application for expedition has been made (TR P3 L48).

Submissions of plaintiff

32. In opposing the application and by way of support, the plaintiff provided detailed written submissions in relation to the legal principles that apply when a Court comes to consider whether to make orders for the decision of any question separately from any other question. The leading decisions of Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 and Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19 were cited as well as numerous other authorities.

33. The particular principles relevant to the issues currently before the Court were said to include the following (PWS [7]-[23]):

34. It is ordinarily appropriate for all issues in a proceeding be disposed of at the one time (Tallglen at 141 per Giles CJ Comm D; Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5] per Johnson J);

35. the party who wishes to have questions separately determined bears the burden of showing that it is desirable for that procedure to be adopted (Clune at [5]);

36. commonality of factual issues and witnesses, and the need for the Court to make factual findings, which may involve issues of witness credit, tells against making an order for a separate trial (per Tallglen at 142).

37. Fundamental to these issues is a need for the Court, in considering whether to make an order for the decision of any question separately from any other question, to consider whether there is a clear line of demarcation between the issues raised under each (Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671 (Young CJ and Jenkinson J; McInerney J agreeing)). Relevant considerations will include whether there is an overlap between facts to be proven and witnesses who will be called upon to give evidence.

38. The plaintiff also cited Tepko (per Kirby and Callinan JJ at [168]), where the Court made a number of observations on the potential difficulties of trials of issues rather than cases in their totality. The Court said difficulties included (PWS [9]):

39. that savings in time and expense are often illusory, as parties may be required to fully prepare for each hearing given the overlap in factual issues; and

40. that there is additional potential for further appeals, and potential for a new trial and a multiplicity of proceedings (see also Century Medical at [32(b)]).

41. The plaintiff further submitted that, even when considering the post-CPA and UCPR focus on just, quick and cheap resolution and the aim of determining the real issues in dispute, it is still the case that the ordering of a separate trial will be an exceptional course, while the ordinary course will be for a Court to decide a case in its totality (PSW [11]) (see Street v Luna Park Sydney Pty Limited [2007] NSWSC 697 per Brereton J at [5]).

Further Legal principles

37. In considering whether to make an order pursuant to rule 28.2 of the UCPR, the legal principles to be applied are well settled. I do not understand there to be any dispute as to the principles that are to be applied and note that the defendants accepted that the legal principles, as set out by the plaintiff in his written submissions, were those to be applied by the Court in determining the current application (TR P24 L48 – P25 L11).

38. In keeping with this, those principles were helpfully summarised by Hallen AsJ in Southwell v Bennett [2010] NSWSC 1372 at [14]-[15], and relevantly provide:

“[14] Rule 28.2 of the Uniform Civil Procedure Rules 2005 states:

‘28.2 Order for decision

The court may make orders for the decision of any question separately from any other question, whether before, at, or after, any trial or further trial in the proceedings.’

[15] I take the principles that apply in determining whether to make an order for the separate determination of a question under the rule to be:

..

(b) The judicial determination of a ‘question’ must involve a conclusive, or final, decision based on concrete and established, or agreed, facts, for the purpose of quelling a controversy between the parties: Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334, at [45] and [51].

…

(d) Whether such an order should be made is a matter for the court’s discretion, which discretion must be exercised judicially, but cannot otherwise be fettered: Dunstan v Simmie & Co Pty Ltd [1978] VR 669, at 670; Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7].

(e) As a general rule, the discretionary power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [436], per Callinan J; Tepko Pty Limited v The Water Board [2001] HCA 19; (2001) 206 CLR 1, at [168]–[170] per Kirby and Callinan JJ: Commonwealth Bank v Clune [2008] NSWSC 1125 at [6], per Johnson J; Bailey and Bailey v Director-General Department of Energy Climate Change and Water and Ors [2010] NSWSC 979 at [4] per Studdert AJ.

(f) In exercising its discretion, the overriding purpose of the Civil Procedure Act 2005, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect.

(g) Generally, all questions of fact and law should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-42; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14. If the Court is to depart from that position, the party seeking the separate determination of a question must satisfy the Court that it would be ‘just and convenient’ for that order to be made: Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718 at [8]-[9], see also Energy Australia v Australian Energy Limited [2001] FCA 1049.

(h) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1215 at [7(6)] per Einstein J.; Owners Corporation Sp 70672 v Trustees of Roman Catholic Church [2010] NSWSC 946 at [16] per Ball J.

(i) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid: Idoport Pty Ltd v National Australia Bank Ltd; Tepko Pty Limited v The Water Board at [168].

(j) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings: Tallglen v Pay TV Pty Ltd at 142, per Giles CJ in Comm D; Parramatta Stadium Trust v Civil and Civic Pty Ltd; Century Medical v THLD (NSWSC, 27 August 1996, unreported).

(k) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial: ABB v Freight Rail [1999] NSWSC 1037.

(l) Often, a separate question is heard on the basis of:

(i) agreed statements of fact;

(ii) a narrow point to be determined; and

(iii) a hearing that is able to be conducted within a short time (or a short time relative to the total length if the hearing of the separate question were not to be dealt with).

…

(o) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial — possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: Reading Australia Pty Ltd v Australian Mutual Provident Society at [8]. There is always a risk of inconsistent findings arising from determination of separate questions.

(p) Whilst the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties: TVW Enterprises Limited v Duffy (Federal Court of Australia, 28 March 1985, unreported) Toohey J.

…

(s) It is necessary that there be precision, both in formulating the question, and in specifying the facts upon which it is to be decided: Jacobson v Ross [1995] 1 VR 337 at 341.”

Consideration

Rule 28.2 order

39. As the authorities suggest, I have approached the issue of the exercise of the Court’s discretion with caution and note that it is ordinarily appropriate for all issues in a proceeding be disposed of at the one time, and that it is for the defendant to persuade the Court otherwise.

40. In the course of the hearing, the only documents I was taken to in the Court Books were the Motion, the Summons, the draft Cross Summons, and the Constitution of the Association. I was not taken to any of the evidence of any of the witnesses. This is consistent with my understanding of how each of the parties conducted these proceedings, there being a focus on the terms of the pleadings themselves as determinative of the issues before the Court (TR P1 L40-50; P11 L1-8).

41. Having regard to all of the circumstances before the Court, I find I have not been persuaded that I ought to exercise the discretion of the Court and make the Rule 28.2 order.

Overlap of factual issues

42. Against the making of the Rule 28.2 order, both parties agree that there is an overlap of factual issues that underpin the inquiries that a referee would undertake pursuant to a Rule 20.14 order, and any inquiry in the substantive proceedings (ie, in relation to the Summons and draft Cross Summons) (TR P21 L5-22 (plaintiff); P22 L10-12 (defendants)).

43. In this, for example, any inquiry into the identity of current members of the Association who would be entitled to vote at a general meeting may well involve an inquiry into the approval process of individual members, which may in turn involve an inquiry into the validity of the election of any office bearers on the committee of the Association at the relevant time (see clauses 3(4) and Part 3 of the Constitution), as well as the 2023 removal allegations raised by the defendants.

44. I am of the view that the acceptance by both parties that there will be an overlap in factual issues between any inquiry conducted pursuant to a Rule 28.2 order and the substantive proceedings militates against the making of a Rule 28.2 order.

45. Noting the defendants bear the burden of persuading the Court that the order should be made, I am of the view the defendants have not engaged adequately with the significance of this issue, nor have they provided reasons why the Court should make this order, notwithstanding the factual overlap.

46. More specifically, no clear articulation was provided by the defendants as to the precise factual circumstances that would be of significance in any inquiry pursuant to a Rule 28.2 order, as opposed to those factual circumstances in the substantive proceedings.

47. On this, the counsel for the defendants made the following oral submissions (TR P22 L10-37):

“I accept that there is overlap in the issues concerning who may well be entitled to vote at a later meeting, when compared with whether the meetings held in 2024 were valid or not. That overlap, I think, is inevitable. The problems is, proceeding in the way urged by the plaintiff may see the determination of those sorts of issues, which only deal with the discrete issues currently before the Court. Whereas, the proposal, in my submission, proposed by the defendants, may well satisfy those issues. But will satisfy broader issues, which, again, I’ll try not to repeat myself, are, I think are inevitably going to arise. And the plaintiff does not seem to have any other solutions to that problem. There may be countless disputes that may well arise in the future. For instance, someone tries to call a meeting and someone tries to vote, and that vote is not allowed.

Who is going to chair the meeting? Technically, anybody would be allowed to apply for membership between now and any meeting. And it’s appropriate that those applications be dealt with. And, again, I agree with my learned friend that ordinarily these matters would be dealt with by the Association. But they can’t be at the moment. They can’t be.

…

[T]he plaintiff, no doubt, says, well, yes we can. We’re going to do it their way. And we say, that’s not ‑ that’s illegitimate. And we propose this way, and they’ll say it’s illegitimate. The Association…we’re at an impasse that needs to be addressed and will not be addressed on the summons. It will likely occasion significant costs and delay to the parties dealing with the past, resolving any of the issues which are extremely likely to arise in the future.”

48. On why the substantive proceedings would not settle the future disputes the defendants said are likely to arise, the defendants further submitted the following (TR P22 L50 – P23 L11):

“Well, first, in relation to who’s elected, all the offices are vacant each meeting. So, by the time we arrive at a new meeting, who was elected at a previous meeting does not matter. The critical issue is who is a member and who is not. And, there are countless reasons why, countless examples of things that might arise. For instance, someone who is not a party to the proceedings who proposed to vote, or is elected, or something, and there’s some later dispute. ‘No, that person is not actually a member.’ Whilst you haven’t been taken to the material, the Court would readily form a view, in my submission, that there is very little to a negligible prospect of there being any cooperation or agreement between these parties. The Court is going to have to intervene to regularise this association. In my submission, there is no other course in the future for this association other than that.”

49. I note that these submissions highlight the “inevitable” overlap of facts in issue between the substantive proceedings and sought inquiry, in that it is said the inquiry would address the issues in the substantive proceedings and more. In my view, these submissions are inconsistent and unpersuasive. For instance, given that valid current members will have to have been approved by those who validly constituted the committee of the Association at the time of approval, I find the defendants’ reasoning extracted at [48] circular and not sufficiently articulated. In this, I note that the Constitution of the Association, and in particular clause 3(4), provides that “The committee [per Part 3] must approve or reject the application” for membership. Counsel for the defendants did not take me to any part of the Constitution in support of this (or any) submission.

50. Further, no explanation was given as to why or how future disputes would be prevented by the making of the Rule 28.2 order to be determined by a referee, particularly in circumstances where there is “negligible prospect of there being any cooperation or agreement between these parties” (TR P23 L6-9). In such circumstances, the disputes are appropriately resolved before a court as anticipated by the Summons and draft Cross Summons.

51. Having regard to the draft Cross Summons, I accept the Court is also the most appropriate forum for the determination of the “broader issues” referred to by the defendants, such as the 2024 mismanagement allegations (TR P23 L39-45). This raises a serious separate head of inquiry that should be squarely and transparently engaged with rather than incidentially swept into an inquiry pursuant to the proposed separate question.

52. In circumstances where the defendants bear the burden to persuade the Court to make the order sought, this lack of articulation and explanation of significance (or not) of factual overlap is a strong militating factor against making any Rule 28.2 order.

Overlap of witnesses

53. The plaintiff additionally submitted that there would be an overlap between the witnesses that would be required to give evidence both pursuant to the Rule 20.14 order and in the substantive proceedings. Although the defendants did not make submissions regarding the overlap of witnesses specifically, to the extent that it is agreed that there is an overlap between factual issues, I am of the view that it will usually follow that there will be an overlap of witnesses. I am of the view that this likelihood militates against making a Rule 28.2 order.

54. If a Rule 28.2 order were to be made, it may arise, for example, that factual findings are made under the Rule 20.14 order, and that such disputed facts again arise for determination in the substantive proceedings. This potentially could result in inconsistent findings. Further, there is also a potential for credibility findings to be made following a referral under Rule 20.14 in relation to common witnesses. It is not clear how a Court hearing the substantive proceedings would deal with these findings.

55. Without more, and based on the conceded commonality of factual issues, together with the commonality of witnesses, I am of the view there is a strong case not to make the orders sought. I have come to this conclusion even before I have considered whether there is anything “exceptional” about these circumstances (PWS [12]), which I do not consider there to be, in any event.

Just, quick and cheap resolution of the real issues

56. In deciding not to exercise the Court’s discretion, I have had regard to the overriding purpose of the CPA, being the just, quick and cheap resolution of the real issues of the proceedings, a consideration on which the defendants placed particular emphasis (DWS [22]).

57. On this issue, overall, I accept the submission of the plaintiff that savings in time and expenses in the circumstances of this case will be illusory. As I have already accepted, the commonality of factual issues and witnesses will likely mean that the parties will be required to undertake extensive (but not necessarily full) preparation for the separate question, in addition to the substantive proceedings.

58. Further, noting that this Motion was only filed over a year after the filing of the Summons, and that no application for expedition has been made, the claim in relation for a need for the issues to be determined in a “quick” manner takes on less significance.

59. There is no evidence before the Court, or other pleaded justification, that has persuaded me that ordering a separate question will substantially reduce the time of preparation for trial and for the trial itself (Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 127 per Hunt J). The submissions of the defendant that go to the future needs of the Association do not squarely engage with this issue (DWS [21], reproduced at [28] above).

60. Further, the plaintiff submits that any determination of the separate question, as to who a member of the Association is, will not put an end to all of the underlying questions in the Summons or the draft Cross Summons (PWS [29]), which the plaintiff considers to be “fundamental” (PSW [30]).

61. I accept this submission, as, without the need to descend into the evidence, the terms of the Summons and draft Cross Summons clearly require the Court to consider, at the very least, the validity of the 2023 removal allegations, the 2024 mismanagement allegations, the disputed meetings, and the August meeting, together with the validity of the associated elections of office bearers. Consistent with this, the terms of the draft Cross Summons are drafted such that the referral determination is to be made only after the more “fundamental” issues are decided.

62. The defendants say that once a separate question has been determined, it might be open to the parties to not look backwards and to start with a “clean slate” and “move forward” (DWS [21]). Whilst I accept this is a theoretical possibility, I was not taken to any evidence that the plaintiff was open to this possibility, with the submissions of the plaintiff in these proceedings being to the contrary (PWS [30]). In stating this I do not intend any criticism of the plaintiff. There does not appear to be any dispute that the plaintiff has raised serious and legitimate issues to be tried.

63. The defendants have relied on the decisions of Slattery J in the Ahmed cases, noting “important parallels” (DWS [23]) to the current case wherein the Court made an order in Ahmed No 2 for a referee pursuant to Rule 20.14 to determine who the members are (and who are eligible for approval to be members) of an incorporated association. The terms of the orders made in Ahmed No 2 were similar to those sought by the defendants in the Motion.

64. By way of reply to this reliance, the plaintiff submitted that it was noteworthy that Slattery J had recorded in Ahmed No 3 (at [13]) that his Honour’s initial view was that the reference of the question of the current membership of the association was not the right course (PWS [25]).

65. More substantially, the plaintiff says that the Ahmed cases are distinguishable from this case because the circumstances in which Slattery J made the order were that the parties to the substantive proceedings had agreed to holding fresh elections for the executive council (PWS [26]) (see Ahmed No 3 at [1], [11]).

66. I accept the submission of the plaintiff that the Ahmed cases are distinguishable based on their circumstances. Given there has been no such agreement between the parties in these proceedings, I am of the view that this distinction is fundamental and properly distinguishes the Ahmed cases.

Rule 20.14 order

67. Notwithstanding the defendants’ clarification that no Rule 20.14 order will be sought if the Court does not make the Rule 28.2 order, additional submissions were made against the making of that order.

Identity of current members

68. Primarily, it was submitted that the defendants had not identified with any precision the mechanism by which a referee was to determine the validity of the present membership of the Association (PWS [27]; TR P18 L5-11). In oral reply, counsel for the defendants submitted, apparently for the first time, that the steps to be taken by a referee could be determined in the future, but that, of the orders set out in Ahmed No 2 at [12], “some of these orders may well be suitable; some of them may need tweaking”, noting further that the parties “should confer as to what might best tailor this situation” (TR P24 L12-17, 32-34). Those orders were said to set out the steps that can be taken to facilitate this particular process. The defendants also submitted that, in the interim, the status quo might be preserved by the making of orders akin to those set out in Ahmed No 3 at [22] (TR P24 L21-31).

69. I accept the submission of the plaintiff. I consider the submissions made by the defendants are undeveloped, uncertain, and I consider it remains unclear exactly how it is that any referee might go about this process, or the extent to which the parties will be required to confer and agree as steps are taken.

Identity of persons eligible for membership

70. Further, it is submitted that part (b) of the Rule 20.14 order does not arise, in that the eligibility of present non-members to become members will be a matter for any future office bearers of the Association (PWS [35]). It was further said that the question is a hypothetical one, and could not properly form the basis of an order pursuant to Rule 20.14 (PWS [35]-[39]).

71. To this end, I was taken to the Constitution of the Association, and in particular clause 3(4), which provides that “The committee [per Part 3] must approve or reject the application”. Of this, the plaintiff submitted that, subject to certain imperatives, such as restraint of trade and anti-discrimination laws, an association is entitled to reject an application for membership (PWS [37]; TR P20 L21-29). As a consequence, it will be for the Association exercising its constitutional powers, and not for a referee, to determinate what non-member should and should not be accepted as member (PWS [39]).

72. Having regard to this submission, I note that the terms of order 3(b) of the Motion do not suggest that a referee, if appointed, would undertake the task of approving individuals for membership, nor have the defendants submitted as much. Rather, a referee would inquire and report upon who would be eligible for the Association’s consideration.

73. However, as with sought order 3(a), the defendants did not sufficiently explain how a referee might practically undertake the task (see [67]-[69]). To the extent that the formulation of any machinary may require the parties to cooperate and confer and agree, I have concerns that such a requirement is unrealistic.

74. Having regard to these issues, in my view, three additional factors militate against the making of a Rule 28.2 order:

75. Without a detailed explanation of any referee’s precise task, I am of the view that there is a real risk the task would result in greater delay and expense, and potentially generate additional issues to be determined;

76. the matter of non-members who are eligible for membership is too remote from the real issues in dispute, even as articulated by the defendants themselves (see [27]); and

77. as foreshadowed at [48]-[51], I consider the issues raised by the defendants for determination by the referee more appropriate for determination before a Court as currently framed in the Summons and draft Cross Summons.

78. To this extent, even if I were minded to make the Rule 28.2 order as sought, I would not have been minded to include this order, without more.

Conclusion

76. I am of the view there is no clear demarcation between the issues the subject of the Rule 28.2 order and the issues to be determined in the substantive proceedings. For this and the other reasons set out above, I find that the defendants have not discharged their burden of persuading me to exercise the Court’s discretion and make the Rule 28.2 order as sought.

77. It is unnecessary to determine whether to make the Rule 20.14 order, given that order was only sought if the Court had been minded to make the Rule 28.2 order (TR P9 L31-33).

Costs

78. The plaintiff has sought his costs of the Motion, noting that costs should follow the event. In the alternative, he submits that the costs of the Motion should be costs in the cause (PWS [42]).

79. The defendants made no submissions as to costs, however order 5 of the Motions is for their “costs”.

80. As is uncontroversial, s 98(1) of the CPA gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 at [14] (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

81. The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: UCPR r 42.1.

82. Rule 42.7(1) relevantly provides:

“42.7 Interlocutory applications and reserved costs

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including—

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.”

83. Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).

84. The plaintiff has been wholly successful in these interlocutory proceedings. The proceedings involved a discrete issue that these interlocutory proceedings have completely resolved. Having regard to these and all of the circumstances, I propose to make an order that costs of these interlocutory proceedings follow the event, and that the defendants be ordered to pay the plaintiff’s costs on the ordinary basis.

Orders

85. For the reasons set out above, I make the following orders:

86. ORDER that leave is granted to the first, second, third, fourth, and fifth defendants to file a cross summons in the form of “Annexure A” attached to the affidavit of Yashvi Shah sworn 2 April 2026 on or by Monday, 31 August 2026 at 4:00pm.

87. ORDER that leave is granted to the plaintiff to serve further evidence in chief in relation to the cross summons referred to in Order 1 on or by Monday, 21 September 2026 at 4:00pm.

88. ORDER that the defendants pay the plaintiff’s costs thrown away by reason of the defendants filing the cross summons referred to in Order 1.

89. ORDER that the Notice of Motion filed 8 April 2026 is otherwise dismissed.

90. ORDER that the defendants are to pay the plaintiff’s costs of the Notice in Motion filed on 8 April 2026 on the ordinary basis.

**********