In the matter of Order of AHEPA NSW Inc. [2019] NSWSC 1329 - NSWSC 2019 case summary — Zoe

NSWNSWSC

In the matter of Order of AHEPA NSW Inc. [2019] NSWSC 1329

[2019] NSWSC 1329

Supreme Court of NSW|2019-03-15|Before: Rees J

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Court

Supreme Court of NSW

Decision date

2019-03-15

Before

Rees J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

017] FCA 923 Bull v Australian Quarter Horse Association [2014] NSWSC 1665 Burston v Oldfield [2003] NSWSC 88 Cambodian Buddhist Society of NSW v Thai [2017] NSWSC 1433 Cameron v Hogan (1934) 51 CLR 358 Campolongo v Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd [2012] NSWSC 750 Carpathian Resources Ltd v Hendriks (2011) 81 ACSR 542; [2011] FCA 41 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1980] 3 All ER 42 Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 55 ACSR 185 [2005] NSWSC 1005 ENT Pty Ltd v Sunraysia Television Ltd (2007) 61 ACSR 626; [2007] NSWSC 270 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Faehrmann v Van Vucht [2018] NSWSC 397 Fraser v NRMA Holdings (1995) 55 FCR 452; (1995) 127 ALR 543 Hall v Job (1952) 86 CLR 639 Haselhurst v Wright (1991) 4 ACSR 527; (1991) 9 ACLC 728 In re Vernon's Will Trusts [1972] Ch 300; [1971] 3 All ER 1061 In the matter of New South Wales Leagues' Club Ltd [2014] NSWSC 1610 In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 Jobnet Employment Services Inc v Copeman (1999) 32 ACSR 554; [1999] NSWSC 848 Johnston v The Greens NSW [2019] NSWSC 215 Kepert v West Australian Pearlers Association (Inc) (1926) 38 CLR 507 Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 Lai v Tiao (No 2) [2009] WASC 22 Lewis v Heffer [1978] 1 WLR 1061 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144 Minister of State for the Army v Dalziel (1944) 68 CLR 261 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 MTQ Holdings Pty Ltd v RCR Tomlinson Ltd [2006] WASC 96 Mune v Centro Argentino of Victoria Inc [1996] 2 VR 82 Newey v Westpac Banking Corporation [2014] NSWCA 319 Overall v Family Voice Australia Inc [2014] NSWSC 736 Pacific Carriers Ltd v BNP Paribas (2004) 2118 CLR 451; [2004] HCA 35 Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc [2015] 1 Qd R 542; [2013] QCA 358 Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496; [2004] WASC 36 Ray v Eastern Suburbs Motorcycle Club Incorporated [2012] NSWSC 1151 Reel v Holder [1981] 3 All ER 321; [1981] 1 WLR 1226 Re Ferguson (1995) 58 FCR 106; sub nom. Re Giga Investments Pty Ltd (in admin) (1995) 17 ACSR 472 Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Stratford Racing Club Inc v Adlam [2008] NZAR 329; [2008] NZCA 92 Stratton v Simpson (1970) 125 CLR 138 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Texts Cited: Dal Pont, Law of Associations (LexisNexis Butterworths, 2017) Ford's Principles of Corporations Law (LexisNexis, looseleaf) Stewart et al., The Law of Unincorporated Associations (Oxford, 2011) Category: Principal judgment Parties: George Lianos (First Plaintiff) Con Gouros (Second Plaintiff) Luke Kyprios (Third Plaintiff)

[4]

Judgment

HER HONOUR: The plaintiffs are three members of the first defendant, Order of AHEPA NSW Incorporated (AHEPA NSW). "AHEPA" stands for Australasian (or, sometimes, Australian) Hellenic Educational Progressive Association. The second defendant is the NSW Commissioner for Fair Trading, who has filed a submitting appearance. This case is about whether the constitution of AHEPA NSW was validly amended at a meeting in November 2018 and whether resolutions passed at subsequent meetings in accordance with the new constitution - concerning AHEPA NSW's participation in redeveloping Bexley Bowling Club, about which its members are sharply divided - were also valid. In the event that there is a problem with how the constitution was adopted in November 2018 or subsequent resolutions, then AHEPA NSW seeks orders under section 1322(4) of the Corporations Act 2001 (Cth) declaring that the resolutions are valid nonetheless.
This case turns upon the membership rules of AHEPA NSW and who was entitled to vote at the meeting in November 2018. This is the third proceedings to have considered these rules, although the first and second proceedings were resolved by consent and thus not the subject of argument. Put shortly, the plaintiffs contend that before one is entitled to be a member of AHEPA NSW, one must be a member of a NSW "Chapter" of an unincorporated association, The Order of AHEPA Australasia, itself recently incorporated as AHEPA Australia Limited.
Three difficulties presented themselves in resolving the issues in this case. First, the foundational documents of AHEPA NSW and The Order of AHEPA Australasia - rules, constitutions, regulations and by-laws - do not align and appear to have been drafted and amended over several decades without the consistent involvement of people qualified to ensure such documents are internally consistent, clear and accurate. The structure of The Order of AHEPA as recorded in these documents was both complex and obscure. The use of defined terms appears to have changed over time, suggesting a loss of corporate memory. Record-keeping has been patchy, with some of the foundational documents going missing for lengthy periods and amendments to foundational documents not being registered with NSW Commissioner for Fair Trading in a timely manner. For about a decade, the members appear to have conducted themselves in a manner not referred to in the documents at all. This has led, over time, to entrenched but not necessarily informed ideas about how things should be done.
Second, there was a lack of understanding amongst members as to the nature of unincorporated and incorporated associations, differing views as to what "The Order of AHEPA" referred to, and the extent to which "The Order of AHEPA" in its unincorporated form operated alongside the incorporated association, AHEPA NSW. AHEPA NSW described the confusion as arising "in respect of the interaction and co-existence (or non-existence) of one or more incorporated associations, various of which have been referred to as the Order of AHEPA". The competing submissions had, on occasion, an ethereal rather than legal quality. Third, the acrimony amongst some members of AHEPA NSW and with the national bodies of The Order of AHEPA may have impinged upon people's ability to think critically about these subtle matters.
In the result, I have concluded that: 1. The membership rules of AHEPA NSW permitted the addition of 124 members before the meeting on 13 November 2018 at which a new constitution and by-laws were adopted. 2. Some members of AHEPA NSW entitled to vote at the meeting were not given notice of it, although most attended anyway. Even if those members had voted against the resolutions, the new constitution and by-laws would have been adopted. An order under section 1332(4) of the Corporations Act is appropriate. 3. It follows that the new constitution and by-laws were validly adopted and registered by NSW Commissioner for Fair Trading, the secretary and treasurer of AHEPA NSW were validly endorsed on 18 February 2019 and the resolutions passed at a meeting on 28 February 2019 were also valid.
I hope this judgment clarifies long-standing issues and enables the members of AHEPA NSW to turn their efforts to the admirable objects of the association, including, to stimulate, promote and practice good fellowship; to generate the spirit of altruism, understanding, co-operation and benevolence and to establish and encourage a strong sense of tolerance in the Association and society in general to create an association of men and women with like attitudes of benevolence and good will … in support of the principles of good government and administration. The amount of time and energy which has been expended in fighting for control of AHEPA NSW and the property development has doubtless been exhausting and expensive, both in monetary and human terms.

[6]

History of AHEPA

Although AHEPA NSW was incorporated in January 1993, the genesis of the association was some 60 years earlier. In 1934, some 30 Australians of Greek heritage gathered at Werris Creek in regional New South Wales and decided to set up a fellowship organisation inspired by the American Hellenic Education Progressive Association, founded in the USA in 1922. The By-laws and Ritual of the American association were adopted to form "The Order of AHEPA", initially in New South Wales but then also in Queensland and Victoria. Members formed a number of "Chapters" in each state. The over-arching organisational body in each state for the Chapters was called a "Grand Lodge".
In 1954, New South Wales, Queensland and Victoria formed the "Supreme Lodge of Australia" and held the inaugural national convention. Further "Chapters" were formed for women in the 1950s. The over-arching organisational body in each state for the women's Chapters was called the "District Lodge". Further Chapters were formed for younger people in the 1970s. The Order of AHEPA came to be established in Western Australia (1965), South Australia (1977) and the A.C.T. (1987).
In 1980, Mr Antonakos became a member of The Order of AHEPA and joined Chapter Prometheus No. 6. In 1986, he was elected President of the Chapter and consequently became a member of the Grand Lodge of New South Wales. In 1981, Mrs Alexandrou became a member of The Order of AHEPA and joined Chapter Arete No. 3, a women's chapter. In 1988, Mr Lianos became a member of The Order of AHEPA and joined Chapter Heracles No. 12. In the late 1980s or early 1990s, Mr Kallimanis joined The Order of AHEPA and Chapter Diogenes No. 8.
In 2016, AHEPA NSW described Sydney as the centre of AHEPA activities and initiatives in New South Wales and Australia. Of 35 Chapters throughout Australia, AHEPA NSW described itself as having 11 Chapters and also 8 committees dedicated to special interests such as education, culture and archaeology, golf, Hellenic literature and poetry and bowling. AHEPA NSW owns property in Surry Hills and Rockdale, the latter housing its headquarters and meeting hall. AHEPA NSW's property is worth some $20 million.
The first contemporaneous document in this case is a trust deed executed in 1981 in connection with the purchase of a property in Chippendale. The deed refers to the property being purchased by the trustees on trust for "the Order of AHEPA in the State of New South Wales". Whether this was a reference to "The Order of AHEPA" in the form of the "Supreme Lodge of Australia", the "Grand Lodge" of New South Wales or some other embodiment of the Order is not stated. The fact that the Order was specified with respect of "the State of New South Wales" suggests the land was held on trust for the members of the Order in that state.

[7]

Constitution and regulations for The Order of AHEPA Australasia 1990

In 1990, The Order of AHEPA adopted a Constitution and Regulations for Australia and New Zealand. As these documents have changed little since, it is worth describing the arrangements thereby put in place. Clause 7 of the Constitution provided: THE AHEPA DOMAIN 7. The Order in its complete entirety, shall be composed of the following units: (a) National Convention (b) Supreme Lodge (c) State Conventions (d) Grand Lodges and District Lodges (e) Chapters …
The National Convention was described as "the highest constituted body of the Order": clause 8. It was an overarching "legislative" body with general powers to fix fees and distribute them, establish charitable institutions, amend the Constitution and award honorary membership. The National Convention is convened once a year, and is formed primarily of delegates from Grand and District Lodges and Chapters.
The Supreme Lodge is another national body, having an "executive" character. It has power to contract and employ, to settle disputes between state lodges and chapters, and to "interpret and enforce the Constitution". It is comprised of former Presidents of the Supreme Lodge and Grand Lodges only. It also appoints a variety of office-holders, including a President, who is then eligible to sit on the body in perpetuity.
This structure is replicated at the state level. The Grand Lodge is an executive body formed from past and present Presidents of Chapters. A District Lodge holds the same place in the hierarchy, but is constituted by female Chapters known as the "Daughters of Penelope". The Grand Lodge is to convene a State Convention, made up of all the Grand and District Lodge members, and also delegates from the Chapters in that State, which has a similar deliberative role to the National Convention.
In respect of "Chapters" at Clause 22(a): The Chapter shall be the basic primary and fundamental unit of the Order and each member of the Order shall be a member of a Chapter. This is the local, regular gathering of members. There are various types: the ordinary Chapter, as well as the female "Daughters of Penelope" Chapters, the junior male "Sons of Pericles" Chapters, and the junior female "Maids of Athena" Chapters. Each Chapter has elected office-holders.
Importantly, Part XIV of the Constitution was entitled "Order of AHEPA in the State of New South Wales". Section 64 provided: Notwithstanding anything hereinbefore contained the Order of AHEPA in the State of New South Wales (hereinafter referred to as the Order) shall be governed by the following rules … The Constitution does not describe what The Order of AHEPA in the State of New South Wales was; whether it was the aggregate of the Grand and District Lodges, the State Convention, the Chapters and members of the Chapters or some combination thereof, or something else altogether. But Part XIV does suggest that The Order of AHEPA had a distinct and separate existence in New South Wales from The Order of AHEPA Australasia. This is consistent with the history of The Order of AHEPA, beginning in New South Wales, expanding within New South Wales, expanding to other states and then forming a national body.
Rules followed in Part XIV in respect of: keeping a register of members; the keeping, audit and presentation of accounts; the annual general meeting (to be held on the same day as the State Convention); the composition of the Management Committee of the Order of AHEPA in the State of New South Wales (being the officers of the Grand Lodge) and, the composition of Management of Committee of New South Wales Chapters (being the officers elected under the regulations of The Order of AHEPA Australasia). Some rules were different from The Order of AHEPA Australasia and some envisaged an overlap between the Orders going forward in respect of the composition of Management Committees of Chapters and The Order of AHEPA in the State of New South Wales. Part XIV envisaged that The Order of AHEPA in the State of New South Wales, whatever that was, would co-exist with the State Convention, Grand Lodge and the New South Wales Chapters.
Although clause 35 of the Constitution gave each of the units of AHEPA the power to appoint trustees to hold property, Additional Rule 7 provided that, for the Order of AHEPA in New South Wales, three trustees would be elected at a general meeting and, in Additional Rule 7(b): All property of whatever kind belonging to the Order shall be vested in the Trustees and they shall have the custody of all deeds and documents of title relating to the property of the Order and shall be responsible for the same and shall deal with and dispose of all the property of the Order whether real or personal for the time being vested in them and the income thereof in accordance with the directions of the Management Committee provided that such directions are not in violation of the trusts upon which the property is held. As such, the Constitution added an Additional Rule likely reflective of the fact that the Order of AHEPA in the State of New South Wales already owned property which it would continue to hold in accordance with Additional Rule 7(b) on trust for that Order.
Additional, and different, rules were also made in the Constitution for the Order of AHEPA in the State of Victoria, although not for holding property. There would appear to have been no property then owned by the Order of AHEPA in Victoria which warranted particular treatment. This rather suggests that the Order of AHEPA, as it had begun in New South Wales and spread to Victoria, had an independent existence of sufficient longstanding in those states to warrant specific rules to reflect the practices which had been adopted in those states to run their respective associations.
The Regulations for The Order of AHEPA Australasia included the procedure for applications for membership of a "Chapter", which envisaged a committee investigating the fitness of the applicant followed by an interview and instruction of the applicant in the ways of the Order. In the event of a favourable report from the interviewing committee, the application was to be submitted to a Chapter at a meeting and determined by secret ballot. A successful candidate was required to present themselves for initiation into the Order.
As I read these foundational documents, there were in fact a number of unincorporated associations in The Order of AHEPA at the time: there were (at least) Chapters, The Order of AHEPA in New South Wales, The Order of AHEPA Australasia and likely other unincorporated associations in other states and territories. The Constitution and Regulations contained a structure or framework in which these unincorporated associations interacted. Unincorporated associations can "affiliate" or "federate" in a larger unincorporated association. As Professor Dal Pont explained in Law of Associations (LexisNexis Butterworths, 2017) at [10.16]: The relationship between two (or more) unincorporated (or, for that matter, incorporated) associations may instead take the form of a 'federation'. Here the respective associations retain a separate existence - in a relationship wherein the federal body becomes the 'servant' of its constituent associations - reflecting a contractual commitment to a common cause or some other 'co-ordinating mechanism', often in the form of a league or the like. In this event, matters of significance to the federation will usually be addressed by representative vote of the associations rather than individual vote of their membership. … Straddling a branch and a federation is an 'affiliation', where the relevant associations are distinct but rules of a central association, under the rules of affiliation, control the affiliated associations or at least some aspects of their operation.
An example is the Conservative Party in the United Kingdom, considered in Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1980] 3 All ER 42. The Conservative Party has a complex structure with three elements: the Parliamentary Party comprising members of both Houses of Parliament; the mass membership represented by the National Union of Conservative and Unionist Associations comprising local constituency associations, and the party headquarters knows as the Central Office. These three elements are repeated at three levels - constituency, area and national. At the head stands the Leader of the Party. The National Union provides a meeting place where members of the party come to debate policy and organises an annual party conference attended by representatives of the local constituency associations and other conservative bodies such as the Young Conservatives. It was argued in that case that the National Union was an unincorporated association with its members being all the members of all the local constituency conservative associations. Vinelott J disagreed, at 55: Counsel … submitted, rightly I think, that, not being a legal person, an unincorporated association cannot itself be a member of another unincorporated association … I can see no reason why an unincorporated association should not agree to send representatives to meet representatives from other unincorporated associations having a common purpose in order to discuss matters of common interest, whether informally or in accordance with some formal constitution, without its members thereby becoming members of a wider unincorporated association. …
The similar structure of the Australia Labor Party State of Victoria was described Cameron v Hogan (1934) 51 CLR 358 at 373-4. Another example is the International Amateur Athletic Federation, to which was affiliated numerous national bodies: Reel v Holder [1981] 3 All ER 321; [1981] 1 WLR 1226 (Court of Appeal). In contrast, in Hall v Job (1952) 86 CLR 639, the High Court considered the Loyal Orange Institution of New South Wales, established in 1875, and held that a subordinate Lodge established in Parkes in 1902 under the rules and regulations of the Institute did not exist as an exclusive association but was an integral part of the larger organisation. At 650: A subordinate Lodge is therefore not to be considered as if it were an association by itself; it is in truth a branch of the Institution, a section of its membership … Property acquired by the Lodge was thus acquired for the Institution.
Whilst the plaintiffs submitted that The Order of AHEPA Australasia bore substantial similarities to Hall v Job, I disagree. The Chapters, Grand and District Lodges and State Convention were not subordinate units of a national body, but distinct entities in their own right, not established by the national body but pre-dating it and with an independent existence. Rather, seems to me that the Constitution of The Order of AHEPA Australasia documents an affiliation or federation of unincorporated associations rather than creates one unincorporated association. The fact that some of these unincorporated associations have since incorporated - some Chapters, The Order of AHEPA in New South Wales and The Order of AHEPA Australasia (which the plaintiffs submitted was the incorporation of the National Convention) - rather confirms that each of these unincorporated associations had a sufficient sense of identity, organisation and continuity (Kibby v Registrar of Titles [1999] 1 VR 861; [1998] VSC 148 at [50]) to incorporate without thereby diminishing the existence of any other unincorporated association within the Order.
In 1991, Dr Diamandis became a member of The Order of AHEPA and was initiated into Chapter Heracles No. 12. Dr Diamandis says he has never been a member of The Order of AHEPA Australasia and referred to Chapters as Chapters of The Order of AHEPA NSW, not Chapters of The Order of AHEPA Australasia. The differences in nomenclature used by the parties were indicative of the nebulous nature of The Order of AHEPA and its manifestations. But in reality I think that the Chapters were neither Chapters of The Order of AHEPA Australasia or The Order of AHEPA in the State of New South Wales but simply Chapters in their own right, that is, unincorporated associations which interacted with each other and the other "units" in the AHEPA hierarchy utilising the framework in the Constitution.

[8]

Unincorporated and incorporated associations

It is timely to say something about the differences between unincorporated and incorporated associations. Unincorporated associations are not recognised by the law as legal entities. As Lord Millett explains in the Foreword to Stewart et al., The Law of Unincorporated Associations (Oxford, 2011), at v: They do, however, give rise to difficult legal problems. An unincorporated association is not a legal person. Since its existence as an entity distinct from its members is not recognized by the law, it cannot hold property, whether legal or equitable, and a conveyance or lease cannot be taken in its name. Nor, unless it is charitable, is it possible for property to be held on trust for its purposes. It cannot enter into a contract, nor can it be liable in tort, whether directly or vicariously. It cannot be defamed; only individual members can sue for defamation. Yet such associations do exist in fact, even though not in law.
To his Lordship's summary may be added the following: the association's rules do not necessarily have contractual force even between the members, unless the members intend to create legal relations between themselves. As such, the basic position at common law and in equity is that the Courts will not intervene in the management of unincorporated associations to enforce those rules. The seminal case of Cameron v Hogan (1934) 51 CLR 358 makes this clear. Per Rich, Dixon, Evatt and McTiernan JJ at 370: … except to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint. … One reason … is the general character of the voluntary associations which are likely to be formed without property, and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest which is social, sporting, political, scientific, religious, artistic, or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis, but, unless there was some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract… More recent authorities have been assembled and analysed by Ward J (as her Honour then was) in Campolongo v Club Marconi of Bossley Park Social Recreation & Sporting Centre Ltd [2012] NSWSC 750 at [48] ff.
The position cited above holds true today in the United Kingdom, except for limited statutory ameliorations. In this jurisdiction, however, these problems are sought to be remedied by the Associations Incorporation Act 2009 (NSW), the Associations Incorporation Act 1984 (NSW), and its predecessors in other states, and in New Zealand, going back to the middle of the nineteenth century. The Preamble to the Associations Incorporation Act 1858 (SA) conveniently sets out what these Acts seek to do: WHERAS great inconvenience has arisen in cases where property belonging to institutions established for the promotion of religion, education and benevolent and useful objects, has become vested in trustees, by the refusal of such trustees to act, and by the necessity for the frequent change of trustees; and great expense is often incurred by reason of such change, and the appointment of other trustees, and the transfer of such property to such other trustees; and it expedient, for the encouragement of such institutions, to facilitate the incorporation of the same - Be it therefore Enacted… The benefit of incorporation is that it confers on the previously unincorporated association many of the advantages of the corporate form: the ability to transact in the association's own name, perpetual succession, so that property, rights and liabilities are held by the association itself, independently of the identity of its members from time to time, and a constitution binding the association and its members as a contract.
Importantly, Schedule 2 of the 2009 Act, as applied by section 8 (or Schedule 2 of the 1984 Act as applied by section 15), provides that, on registration, the former unincorporated association ceases to exist: the definition of "former body" as including "an unincorporated body that has been incorporated as a consequence of its registration under this Act" makes this plain. The Schedule provides for the transfer of assets, rights and liabilities and any proceedings to the new incorporated association. Likewise, acts and omissions are taken to be done by the new body, and any reference to the former body in any document is taken to be a reference to the new body. So much was confirmed many years ago in the High Court of Australia in Kepert v West Australian Pearlers Association (Inc) (1926) 38 CLR 507 per Knox CJ, Gavan Duffy, Rich and Starke JJ at 514: … Upon incorporation the voluntary association ceases to have any existence apart from the incorporated body. There are not two entities existing side by side - a voluntary association and an incorporated body; and the rules when filed become the rules of the incorporated association and subject to the Act regulate the internal economy of the incorporated association and have no separate operation for the management of a voluntary association. And at 515, per Higgins J: In my opinion, there is no valid foundation for the theory that after incorporation the association as unincorporated exists or can exercise any powers. By section after section it is made clear that the association when incorporated is the same association as existed before incorporation…
More recently, in Faehrmann v Van Vucht [2018] NSWSC 397, Ward CJ in Eq considered whether it is possible for an unincorporated association to continue to exist notwithstanding incorporation. Amongst the authorities collated and analysed by her Honour at [97] ff is Burston v Oldfield [2003] NSWSC 88, where Hamilton J found that the incorporation of One Nation NSW Political Party Inc was not a case of an unincorporated association incorporating at all, but a new association being formed and incorporated for a separate purpose. His Honour Hamilton J observed at [11]: … it may well be that a separate association was created and incorporated with the same name leaving the original unincorporated association concurrently existing: see Mune v Centro Argentino of Victoria Inc [1996] 2 VR 82; cf Kibby v Santiniketan Park Association Inc [1998] VSC 148; Jobnet Employment Services Inc v Copeman (1999) 32 ACSR 554. It is clear to me on the evidence that that is what occurred in this case. The Incorporated Association was intended to be created for certain financial purposes. The persons who became the members of the new association were the members of the existing State Executive, or a large number of them, rather than all the people who were by then members of the Political Party. …
In Mune v Centro Argentino of Victoria Inc [1996] 2 VR 82, the Court of Appeal of the Supreme Court of Victoria held that the majority of the members of an unincorporated association did not agree to incorporate and thus, although the incorporated association had the same name as the unincorporated association, it was not in fact the successor to the unincorporated association but was successor to the ad hoc group that met to approve its incorporation: Ormiston JA (with whom Winneke P agreed) at 94; Hayne JA at 95-6. In Kibby v Registrar of Titles, Mandie J held that there was no unincorporated association in existence at all when land was purchased by people who met regularly at a chapel at Ferny Creek to discuss religion and philosophy, and so the property was not held on trust for such an association but, obiter, if it was an unincorporated association, then the majority of its members approved its incorporation.
In Ray v Eastern Suburbs Motorcycle Club Incorporated [2012] NSWSC 1151, Ball J found that the unincorporated association ceased to exist when the Club decided to incorporate, but as Ward CJ in Eq noted in Faehrmann at [102]: … [Ball J] clearly treated this as a question of intention of the incorporators, the answer to which would be indicated by: the contemporaneous documents; the name used (whether it was the same or different to the unincorporated association); and whether the members of the unincorporated and the incorporation association corresponded. (I also note particularly his Honour's comment at [48], reserving his view about circumstances where "an association was incorporated but the [un]incorporated association did not cease to exist immediately, as in this case".)
A similar review of contemporaneous evidence - correspondence, minutes, bank accounts and conduct - led Windeyer J to conclude in Jobnet Employment Services Inc v Copeman (1999) 32 ACSR 554; [1999] NSWSC 848 that it was intended that an unincorporated association would become incorporated and continue to carry out the work of the unincorporated association as the incorporated association: at [26]. Likewise in Faehrmann, whilst Ward CJ in Eq accepted that it was theoretically possible for the unincorporated association to continue to exist alongside the incorporated association, it was found not to have been established in that case, at [112]: In the present case there is nothing to suggest that there was any intention at the time of incorporation of The Greens N.S.W. Incorporated to create a separate (and co-existing) incorporated association from the then existing unincorporated association. Indeed the 2002 Constitution (with its references to the Associations Incorporation Act) points to the contrary. It can safely be concluded in my opinion that, on incorporation as The Greens N.S.W. Incorporated in 2002, the former unincorporated association known as The Greens NSW ceased to exist. … Curiously, Kepert v West Australian Pearlers Association was not referred to in Faehrmann v Van Vucht, Ray v Eastern Suburbs Motorcycle Club or Burston v Oldfield but suggests, conformably with the conclusions reached by the trial judges in each of those cases, that it would be unusual to find a situation where the unincorporated association continues to exist alongside an incorporated association.

[9]

Incorporation of AHEPA NSW

In January 1993, AHEPA NSW was incorporated under the Associations Incorporation Act 1984 (NSW). Mr Antonakos and Dr Diamandis were founding members. AHEPA NSW adopted rules, "Rules of Order of AHEPA NSW Incorporated". It is these rules I have to interpret - as amended in 2003, 2005, 2007 and 2010. The Rules commenced: PART I - INTERPRETATION 1. (1) The name of the Association shall be "ORDER OF AHEPA NSW INCORPORATED" (referred to in these rules as "the Association").
The objects of the AHEPA NSW were described in rule 2: (emphasis added) (a) to take over the funds and other assets and liabilities of the presently unincorporated association the Australian Hellenic Educational Progressive Association in New South Wales also known as the Order of Ahepa New South Wales. (b) to take over the assets and liabilities of the trustees of the unincorporated association. (c) to adopt the objects of the unincorporated association … The ensuing objects were almost identical to those in clause 3 of the Constitution of The Order of AHEPA Australasia of 1990. The only substantive difference was that references to "members of the Order" in the Constitution of The Order of AHEPA Australasia were replaced in the Rules with "members of the Association", where the Association was defined as AHEPA NSW. The plaintiffs rely on the identity of objects as indicating that "the unincorporated association" was a reference to The Order of AHEPA Australasia, although I note that the Rules then proceed to set out a further three pages of additional objects of AHEPA NSW which are not in the Constitution of The Order of AHEPA Australasia.
The plaintiffs submit that the reference to "the unincorporated association" in rule 2 is a reference to The Order of AHEPA Australasia, "there being no other "unincorporated association" in existence". For the reasons already stated, I do not think it was the only unincorporated association in existence. Further, the plaintiffs' submission is at odds with the express reference in rule 2(a) to "AHEPA in New South Wales" and "the Order of AHEPA New South Wales". In addition, the objects which follow rule 2(c) use the phrase "members of the Association" where Association was defined in the Rules as AHEPA NSW.
AHEPA NSW says the reference to an unincorporated association was plainly a reference to the unincorporated existence of the association prior to its registration. I agree, but the question is what that was. Further, APEPA NSW submits that the Chapters were not incorporated in 1993, although some have since been incorporated, and it was these Chapters that constituted, and now constitute, the "unincorporated association". I do not think that follows. Rather, I consider the reference to the "unincorporated association" in 1993 was to the entity referred to in the 1981 trust deed and Part XIV of the Constitution of The Order of AHEPA Australasia, that is, The Order of AHEPA in the State of New South Wales.
This is confirmed by contemporaneous documents. In July 1993, consistently with what was apprehended would occur in rule 2(a) and (b), the solicitor for AHEPA NSW made a statutory declaration in support of an application to change the name of the proprietor of the Chippendale property declaring: 1 I am the solicitor for the Order of Ahepa NSW Incorporated. … 3 The persons presently named as registered proprietors … were formerly Trustees of the unincorporated association prior to its incorporation. 4 Since the date of incorporation they have signified their preparedness to divest themselves of ownership now that the body is an incorporated body and capable of having property recorded in its own name for and on behalf of its members. It seems to me that the "unincorporated association" referred to in paragraph 3 of the affidavit was that identified in the trust deed of 1981, being "the Order of AHEPA in the State of New South Wales".
In August 1993, an Application to Record Change of Name was completed, including a second statutory declaration by George Kyriazakos, company director, to the effect that AHEPA NSW was now an incorporated association and: The registered proprietors held the title for and on behalf of the former unregistered association Order of AHEPA New South Wales. As to whether the "former unregistered association Order of AHEPA New South Wales" was a reference to The Order of AHEPA Australasia or The Order of AHEPA in the State of New South Wales, I think it was clearly the latter. That such an entity existed is consistent with the history of AHEPA: The Order of AHEPA began in New South Wales, gradually expanded into other states and territories of Australia and, in time, formed an overarching national entity, The Order of AHEPA Australasia, but The Order of AHEPA in New South Wales had a continuing and separate existence recognised in Part XIV of the Constitution of the Order of AHEPA Australasia. Further, reference in the two statutory declarations to New South Wales suggests that it was this entity to which reference was made in rule 2.
Returning to the Rules, Part II "MEMBERSHIP", Rule 1 provided: (emphasis added) Any person who has: (a) been a financial member of the unincorporated association for 3 years prior to its incorporation: or (b) agrees to be bound by the code of ethics and rules of the unincorporated association adopted in table A. shall be entitled to be a member of the Association. PROVIDED however that until such time as a person has been a financial member continuously for three years such person shall be deemed to be an associate member and shall not participate in elections or resolutions until the expiry of three years from the date of joining. This envisaged existing members of the unincorporated association, The Order of AHEPA in New South Wales, becoming members of AHEPA NSW under sub-rule (a), but also new members joining AHEPA NSW directly under sub-rule (b). The proviso had the result that members joining by either means could only vote on satisfying the same threshold: membership for three years. As everyone becoming a member under sub-rule (a) already met that criterion, the proviso only applied to sub-rule (b).
The plaintiffs say that the reference to "the unincorporated association" in rule 1(a) is a reference to The Order of AHEPA Australasia although, consistently with what I have already said, I think it is a reference to The Order of AHEPA in New South Wales. It is implicit in the incorporation of a previously unincorporated association that members of the former unincorporated association are transitioned to the incorporated association, hence reference in rule 1(a) to members of the association "prior to its incorporation", where "it" was AHEPA NSW.
As to rule 1(b), the Rules provided: BY-LAWS AND ADOPTION OF TABLE 'A' 47 The Association immediately upon registration shall adopt the constitution and rules of the former unincorporated Association and these shall be the by laws and internal structure of the Association and each individual member shall be bound by them. 48 Where the constitution and rules of the former unincorporated Association conflict with any section of the rules of the incorporated Association the rules of the incorporated Association shall take precedence. Where rule 47 and 48 refer to "the former unincorporated Association" and "the Association" is defined by the Rules as AHEPA NSW, I think the former incorporated Association is a reference to the Order of AHEPA in the State of New South Wales. The "constitution and rules of the former unincorporated Association" are not in evidence although the plaintiffs submit that these were the constitution and regulations of The Order of AHEPA Australasia. Whilst the Order of AHEPA Australasia did have a constitution at this time, it did not have rules but regulations. I am reluctant to infer that The Order of AHEPA in New South Wales had no constitution and rules before it was incorporated in 1993 from the fact that none were produced 26 years later. Given the long history of the New South Wales organisation, this seems inherently unlikely. And, as will be seen, AHEPA NSW's record-keeping appears to have been poor.
As to who was qualified to be a member of AHEPA NSW, rule 2 provided: A person is qualified to be a member of the Association if, but only if, - (a) The persons is a person referred to in section 15(1)(a), (b) or (c) of the Act and has not ceased to be a member of the Association under the Act; or (b) The person is a natural person who - (i) has been nominated for membership of the Association as provided by rule 3; and (ii) has been approved for membership of the Association by the committee of the Association. As to rule 2(a), the certificate of incorporation of AHEPA NSW was issued under section 10 of the Associations Incorporation Act 1984. As such, section 15(1)(a) of the Act applied with the result that rule 2(a) seems to be a reference to "the persons who were the members of the association immediately before" the date of incorporation.
Like rule 1, it seems to me that rule 2 envisaged existing members of the unincorporated association becoming members of AHEPA NSW under sub-rule (a), but also new members joining AHEPA NSW directly under sub-rule (b) through a process of nomination and approval. As to nomination, rule 3 provided: NOMINATION FOR MEMBERSHIP 3. (1) A nomination of a person for membership of the Association (a) shall be made by a member of the Association in writing in the form set out in Appendix 1 to these rules; and (b) shall be lodged with the secretary of the Association. (2) As soon as practicable after receiving a nomination for membership, the secretary shall refer the nomination to the committee which shall determine whether to approve or to reject the nomination. (3) Where the committee determines to approve a nomination for membership, the secretary shall, as soon as practicable after that determination, notify the nominee of that approval and request the nominee to pay within the period of 28 days after receipt by the nominee of the notification the sum payable under these rules by a member as entrance fee and annual subscription. (4) The secretary shall, on payment by the nominee of the amounts referred to in clause (3) within the period referred to in that clause, enter the nominee's name in the register of members and, upon the name being so entered, the nominee becomes a member of the Association. Appendix 1 to the Rules is not in evidence. The committee is "the committee of management of the Association": rule 12. The fee was $1: rule 8(1), and remains the same today (plus GST). What rule 3 indicates is that new members were nominated by existing members of AHEPA NSW, approved by the committee of management and, on payment of $1 by the applicant, became a member on entry of their name into the register of members. It was process which was self-contained within AHEPA NSW and separate from The Order of AHEPA Australasia.
In respect of the register of members, rule 7 provided: REGISTER OF MEMBERS 7. (1) The public officer of the Association shall establish and maintain a register of the Association specifying the name and address of each person who is a member of the Association together with the date on which the person became a member. (2) The register of members shall be kept at the principal place of administration of the Association and shall be open for inspection free of charge, by any member of the Association at any reasonable hour. The secretary of AHEPA NSW, Dr Diamandis, was responsible for maintaining the register of members and did so with the assistance of Mr Kagelaris, the Secretariat for AHEPA NSW, an IT and business administrator by trade. In addition to rule 7(2), rule 38 provided that the records, books and other documents of the Association were open to inspection free of charge by a member of the Association at any reasonable hour.
Rule 12 provided for the affairs of AHEPA NSW to be managed by a committee of management comprising the President, Vice-President, Treasurer and Secretary of AHEPA NSW and three ordinary members: rule 13. In respect of the election of office-bearers and ordinary members of the committee of management, rule 14 provided for candidates to be nominated by a member of the Association at the annual general meeting, seconded by another member of the Association and voted for at the meeting. Again, the committee of management was sourced from members of AHEPA NSW, selected by its members with no apparent involvement by The Order of AHEPA Australasia.
As to witnesses in these proceedings who were on the committee of management from time to time, either as office bearers or ordinary members: 1. Mr Antonakos, public servant, was President of AHEPA NSW from 1995 to 1997 at the same time as serving as President of the Grand Lodge of New South Wales. 2. Mr Kallimanis, restaurateur, was on the committee from 2001 to 2010 and was President of AHEPA NSW from 2013 to December 2018. He also held various positions in the Grand Lodge of New South Wales including President from 2013. 3. Mr Premetis, chartered accountant, has been the Treasurer of AHEPA NSW since September 2017, and also a member of the committee of management since 2014. 4. Dr Diamandis, school teacher, has been the Secretary of AHEPA NSW since December 2013. 5. Mr Lianos has served on the committee of management from 1997 to January 2018 including as chair. 6. Mr Fandakis, consultant engineer and project manager, has been a member of the committee of management since 2009.
The committee of management was entitled to delegate to one or more sub-committees, consisting of such members as the committee thought fit: rule 20. AHEPA NSW has a Buildings Committee of which Mr Fandakis is the Chair.
The committee could not exercise functions that were required by the Rules to be exercised by a general meeting of members of the Association (rule 12(b)). Further, a special resolution at a general meeting was required before the committee of management could "sell, purchase, mortgage, charge, lien, borrow, lend, encumber or create any liabilities": rule 12(d). A special resolution required 75% of members to vote at a meeting of which 21 days' notice had been given: rule 30(a).
The committee of management could call special general meetings whenever it thought fit (rule 24(1)). Where the nature of the business proposed to be dealt with at a general meeting required a special resolution of the Association, 21 days' notice was required, to be given by the Secretary sending notice by post to the members' addresses appearing in the Register of Members: rule 25(2). For meetings where the business proposed to be dealt with did not require a special resolution, 14 days' notice was required: rule 25(1). Questions were to be determined on a show of hands unless a poll was demanded, in which case a poll was to be taken: rule 29. All votes were required to be given personally (rule 31(2)) and a member was not entitled to vote unless all money due and payable by the member to the Association had been paid (rule 31(4)).
In Part V, "Miscellaneous", Rule 40 provided: SURPLUS PROPERTY 40. In the event of a winding up of the Association all surplus property of the Association shall vest in The Trustee for the benefit of the members. "The Trustees" is not defined in the Rules. Additional Rule 7(b) of the Constitution of the Order of AHEPA of 1990 may assist, being rules then prescribed to govern the Order of AHEPA in the State of New South Wales, which provided that the trustees were those elected at a general meeting to hold property for the Order of AHEPA in the State of New South Wales.
Section 19(2) and (3) of the 1984 Act provided: 2 The rules of the incorporated association are: (a) where the application for incorporation of the association was accompanied by a copy of rules … those rules as altered by the incorporated association from time to time in accordance with section 20 … 3 Where in relation to any matter the model rules makes provision but the rules of an incorporated association do not make provision, the provision of the model rules shall, in relation to that matter, be deemed to be included in the rules of the incorporated association.
AHEPA NSW submitted that, as a consequence of section 19 and confirmed by rule 48, the only rules applicable to AHEPA NSW were those lodged with the Corporate Affairs Commission upon registration. This is correct. Part XIV of the Constitution of The Order of AHEPA Australasia ceased to prescribe the rules for "Order of AHEPA in the State of New South Wales". However, there was nothing to stop AHEPA NSW incorporating the Constitution by reference if it wished.
There is no evidence to suggest that the incorporation of AHEPA NSW was not authorised by the members of The Order of AHEPA in the State of New South Wales (Mune v Centro Argentino of Victoria Inc) or that it was not a case of an unincorporated association incorporating but a new association being formed and incorporated for a separate purpose (Burston v Oldfield) or that it was envisaged that The Order of AHEPA in the State of New South Wales would coexist with AHEPA NSW. The plaintiffs place weight on Mr Kallimanis' understanding, described in his affidavit in the first proceedings, In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458 (AHEPA No 1), that AHEPA NSW was formed to look after properties owned by the Grand Lodge of NSW and the members of AHEPA in NSW as somehow confining the nature and role of AHEPA NSW. However, Mr Kallimanis did not become actively involved in AHEPA until 1999 - at Chapter level - and became a member of the Committee of Management in 2000, seven years after AHEPA NSW was incorporated. His understanding is thus of little assistance. Further, the Rules of AHEPA NSW go well beyond holding property and extend to membership, management, meetings, money and, to the extent not covered, adopted the model rules. According, it seems to me that in 1993, The Order of AHEPA in the State of New South Wales ceased to exist apart from AHEPA NSW: Kepert v West Australian Pearlers.
The Grand Lodge, District Lodge, State Convention and NSW Chapters continued, however, presumably as unincorporated entities within the framework provided by the Constitution of The Order of AHEPA Australasia. In 1995, Mr Antonakos became President of the Grand Lodge of New South Wales and New Zealand. In 1999, Mr Antonakos became Secretary of the Grand Lodge of New South Wales and New Zealand and served in this position until October 2009.

[10]

AHEPA NSW 2003 rules

In 2000, Mr Kallimanis became a member of the Committee of Management of AHEPA NSW. He asked for a copy of the Rules and no one was able to give him a copy, nor could he find one. It was thought that the Rules had never been registered. In fact, the Rules had been registered but a copy was not retrieved until 2016, and then only from the NSW Commissioner of Fair Trading after a physical search of its archive facility.
In any event, in September 2003, a special general meeting was called to adopt the Rules, which Mr Kallimanis was informed were the same as those adopted in 1993. In fact, the rules were substantially revised. Importantly, "unincorporated association" was now defined in rule 1(2)(f): "unincorporated association" means AHEPA NSW also known as the Order of AHEPA NSW. This is consistent with my interpretation of the 1993 Rules, that the reference to the "unincorporated association" is a reference to The Order of AHEPA in the State of New South Wales rather than The Order of AHEPA Australasia.
Rules 1 and 2 in respect of membership were combined and re-numbered as rule 3. Rule 3 now provided, with changes from the former rules marked: 3. MEMBERSHIP QUALIFICATIONS (1) Any person who has: (a) been a financial member of the unincorporated association for three (3) years prior to its incorporation: or and (b) agrees to be bound by the code of ethics and rules of the unincorporated association adopted in Table A. shall be entitled to be a member of the Association. PROVIDED however that until such time as a person has been a financial member of the unincorporated association continuously for three years such person shall be deemed to be an associate member and shall not participate in elections or resolutions until the expiry of three years from the date of joining. (2) A person is qualified to be a member of the Association if, but only if: (a) the person is a person referred to in section 15(1)(a), (b) or (c) of the Act and has not ceased to be a member of the Association at any time after incorporation of the Association under the Act; or (b) the person is a natural person who - i has been nominated for membership of the Association as provided by rule Part II-4(1); and ii has been approved for membership of the Association by the committee of the Association.
As originally framed, the 1993 Rules brought members of the unincorporated association of The Order of AHEPA in the State of New South Wales into the incorporated entity under rule 1(a) and rule 2(a), and also provided for the admission of new members directly under rule 1(b) and rule 2(b). The two pathways to membership, being for existing and new members, were obvious. The amendments to the Rules in 2003, however, appear to have muddied the waters. In particular, changing "or" to "and" between former rule 1(a) and (b) - now rule 3(1)(a) and (b) - had the result that the rule 3(1) only applied to pre-existing members of the Order of AHEPA NSW "prior to its incorporation" in 1993 and only rule 3(2)(b) provided a pathway for new members.
The plaintiffs submit that the reference in rule 3(1) to the "unincorporated association" is a reference to the national body and its membership rules as AHEPA NSW was an incorporated association by this time and thus did not meet the description of an unincorporated association. This submission ignores two things. First, the text in rule 3(1) was first enacted in 1993 when The Order of AHEPA NSW was an unincorporated association and seems to me to have been directed towards bringing the members of The Order of AHEPA NSW into the incorporated association, AHEPA NSW. Second, the submission ignores the definition of "unincorporated association" in rule 1(2)(f). In AHEPA No 1, Black J noted at [9]: [AHEPA NSW's counsel] point out that cl 3(1) of the 2003 Rules links membership of AHEPA NSW with membership of the "unincorporated association" - which is defined in cl 1(2)(f), except in so far as the context of subject matter otherwise indicates or requires, as "AHEPA NSW also known as the Order of AHEPA NSW": [AHEPA NSW's counsel] submit, and I accept, that "member[ship] of the unincorporated association" within cl 3(1) of the 2003 Rules means membership of the Order of AHEPA as geographically situated in New South Wales, that is, membership of a Chapter of the Order of AHEPA based in New South Wales. The plaintiffs point to this as consistent with the interpretation that the plaintiffs are now proposing but accept, correctly, that his Honour did not ultimately determine the matters now in issue.
Rule 3 in the 1993 Rules became rule 4, with changes to sub-rules (1) and (2) as marked: 4 NOMINATION FOR MEMBERSHIP (1) A nomination of a person for membership of the Association, a) shall be made in writing by the secretary of the unit of the unincorporated association nominating the person for membership of the Association; and b) shall be lodged with the Secretary of the Association. (2) As soon as practicable after receiving a nomination for membership, the Secretary shall refer the nomination to the committee for endorsement by the committee. Materially, new members were now nominated, not by members of the Association, but by the secretary "of the unit of the unincorporated association", which appears to be a reference to Chapters of the Order of AHEPA. In this amendment, "unincorporated association" appears to now be used in a different sense to refer to "The Order of AHEPA" more generally rather than pre-incorporation entity of The Order of AHEPA in the State of New South Wales. The role of the committee of management is now one of endorsement of the application rather than determining whether to approve or reject the nomination. However, as the plaintiffs note, the requirement in sub-rule 3(2)(b) continued to apply and so approval of the committee was still required.
Mr Kallimanis said that he could not recall the procedure in rule 4 being followed while he was on the committee of management. Rather, a person became a member of a Chapter in New South Wales and, each year before the State Convention, each Chapter submitted a list of its financial members as at 30 June of that year as part of its annual reports, including the names of any new members admitted to the Chapter during the year. The list was tabled at the State Convention and adopted by the delegates. At the convention, or shortly afterwards, the Chapters paid to AHEPA NSW $1 plus GST for every new member admitted to the Chapter during the year. The list as approved at the State Convention was then sent to the secretary of AHEPA NSW and became the list of financial members. Once a member had been a financial member of a Chapter for three years, they were treated as a member of AHEPA NSW entitled to vote at the annual general meeting. Mr Antonakos described a slightly different process. Either way, it was a significant departure from the procedure laid down by the 2003 Rules.
Rule 5 of the revised 2003 rules provided: (changes marked) 5. CESSATION OF MEMBERSHIP (1) A person ceases to be a member of the Association if the person - a) dies; b) resigns that membership; or c) is expelled from the Association d) is an unfinancial member of the unincorporated association for a consecutive period of two (2) fiscal years. Sub-rule (d) is curious. It does not sit well with the definition of "unincorporated association" in clause 1(2)(f), nor with the fact that the Order of AHEPA NSW was incorporated a decade earlier. The term "unincorporated association" appears now to be being used in a manner different from that originally envisaged and has become a reference to a Chapter, or perhaps the Chapters collectively, or perhaps the Grand Lodge or State Convention. The plaintiffs submit that the reference in sub-clause (d) to an "unfinancial member" of the unincorporated association uses the same terminology as Part XI of the 1990 Regulations of The Order of AHEPA Australasia and that this is further evidence that, where the Rules of AHEPA NSW refer to the "unincorporated association", they are referring to The Order of AHEPA Australasia. There is certainly an overlap of terms and some clauses between the foundational documents, but pointing to similarities (where they exist) does not assist greatly.
The 2003 Rules contained equivalent provisions in respect of the Register of Members (now rule 8). The powers of the committee of management remained the same (now rule 13) but the membership of the committee increased to five ordinary members in addition to the office bearers: now rule 14. But an important change was made to the election of office-bearers and ordinary members of the committee of management. Whilst originally each member of the committee of management was nominated by a member of the Association at the annual general meeting, rule 15 now provided: 15. ELECTION OF MEMBERS (1) The committee shall be elected from the following duly elected office bearers or members of the unincorporated association: a) Grand President b) District President c) nominated member from each chapter of the unincorporated association, (2) Provided however that: a) the duly elected Grand President of the unincorporated association shall automatically be appointed as the President of the Association b) the duly elected District President of the unincorporated association shall automatically be appointed as the Vice President of the Association (3) The nomination of the member from each chapter of the unincorporated association under clause (1) c) shall occur by way of an election process to be conducted by each of the respective chapters of the unincorporated association in the month of October and advised in writing to the Secretary by the secretary of the chapter of the unincorporated association within fourteen (14) days following the election of the committee member.
"Grand President", District President" and "chapter" were not defined in the 2003 Rules but were terms which would have had a clear meaning to those involved in the activities of The Order of AHEPA through their local Chapter. It is perhaps in the context of this drafting mess that AHEPA NSW's senior counsel submitted in AHEPA No 1 in respect of the meaning of "unincorporated association" - in the face of its definition - "we take that to mean the membership of the Order of AHEPA geographically situated in New South Wales, that is, Chapters in New South Wales". In any event, rule 15 now radically shifted the composition of the committee of membership from members of AHEPA NSW to the officers of the Grand Lodge and District Lodge of New South Wales and nominees of the Chapters in New South Wales. The plaintiffs submit that these amendments increased the importance of the "unincorporated association" to the functioning of AHEPA NSW and further incorporated aspects of the Constitution of The Order of AHEPA Australasia into AHEPA NSW's Rules. The latter proposition is correct insofar as the Constitution of The Order of AHEPA Australasia described how the Grand President and District President were elected, was a Chapter was and who was a member and Secretary of a Chapter, and thus identified the persons who the 2003 Rules then prescribed would form the committee of management.
Otherwise, the ability to delegate to sub-committees was now rule 21. The rules in respect of calling meetings remained the same, albeit re-numbered: calling special meetings (rule 24), notice (rule 26), making of decisions (rule 30), special resolutions (rule 31) and voting (rule 32). The right to inspect the books were now in rule 39. Rule 40 in respect of Surplus Property which, it will be recalled, provided that in the event of winding up of AHEPA NSW, surplus property would vest in The Trustees, was removed.

[11]

Amendments to the rules of AHEPA NSW: 2005 to 2010

Recalling the annual method of recording existing and new members of AHEPA NSW set out at [66], Mr Kallimanis said that the list of financial members that each Chapter submitted with its annual report to the State Convention did not record how long the members had been financial members, whether the member had been unfinancial for a period and, if so, for how long. This made it very hard to work out who was a member of AHEPA NSW or a member entitled to vote. From 2003 to 2005, the committee of management regularly discussed and debated rule 3 and that it was not working. Further, the three year waiting period was considered to be too long and leading to the loss of members.
This debate appears to have been misguided as, not only was rule 3 not being applied in its terms but rather by some informal process which appears to have arisen whilst the rules were mislaid, but rule 3 as amended in 2003 did not apply a three-year waiting period to new members but only those were already members on incorporation of AHEPA NSW in 1993. The ham-fisted nature of the 2003 amendments resulted in theoretical unfairness to existing members - I say theoretical as by 2003 all existing members had more than served their 3 year waiting period - but unfairness undetected by the committee.
In November 2005, AHEPA NSW's rules were amended by special resolution. Rule 3 became: 3- Membership Qualification (1) Any person who has a) been a financial member of the unincorporated association on 30 June of the last financial year. and b) agrees to be bound by the code of ethics and rules of the unincorporated association. shall be entitled to be a member of the Association. The distinction between an associate member and one entitled to vote was also removed. The minutes of the annual general meeting at which this motion was passed do not shed any light on the amendment. The metamorphosis of rule 3 had continued since its original function in 1993, being to transition members from The Orders of AHEPA in the State of New South Wales into AHEPA NSW. The rule now reflected the practice described in [65] of AHEPA NSW adopting the annual lists of financial members submitted by the Chapters to the State Convention as its register of members. The reference to "unincorporated association", at least in rule 3(1)(a), is to Chapters. Another curious feature of this resolution is that, although it was passed in 2005, it was not registered until 2018 and then only after the first proceedings, AHEPA No 1.
According to Mr Kallimanis, after this amendment the Chapters continued to submit their annual report to the Grand Lodge before the State Convention including a list of financial members as at the end of 30 June of that financial year: this was then approved as the list of members in New South Wales at the State Convention. The list was sent to AHEPA NSW and became the list of members of AHEPA NSW for the next financial year. Members on this list were entitled to vote at AHEPA NSW's general meetings. AHEPA NSW did not have a separate Register of Members. Mr Antonakos described a slightly different process.
On 29 November 2007, rule 14 of the 2003 Rules was amended to expand the number of ordinary members of the committee of management to "such number of ordinary members as corresponds to the number of Active Chapters of the unincorporated Association". "Active Chapters" was not defined in the AHEPA NSW rules although the 1990 Constitution of The Order of AHEPA Australasia dealt with inactive chapters in clause 102. Again, it seems that the term "unincorporated association" or the amalgam "unincorporated Association" was now being used in a way different to that originally intended in 1993. This resolution was also not registered until 2018. In AHEPA No 1, Black J noted at [14]: … The evidence led by AHEPA NSW indicates that the purpose of this amendment was to permit each Chapter of AHEPA NSW to nominate a representative to the Committee of Management, where the number of Chapters had increased (Kallimanis [74]-[79], [81]).
In 2009, Mr Antonakos was elected as National President of The Order of AHEPA Australasia.
On 22 January 2010, AHEPA NSW again amended its rules to add back to rule 3(1) "Membership Qualifications": PROVIDED however that until such time as a person has been a financial member of the unincorporated association on the 30th June of the last financial year, such a person shall be deemed to be an associate member and shall not participate in elections or resolutions. That is, an "associate member" was reintroduced but with a shorter period of up to one year, depending on their date of membership. Again, the term "unincorporated association" seems to now be being used in a manner different to that intended when the term was first introduced in 1993 and now refers to a Chapter. Although the minutes of the annual general meeting record that Mr Antonakos gave an explanation of the amendment "and the history of the Membership Qualifications", the history is not set out in the minutes. This resolution was also not registered until 2018. In AHEPA No 1, Black J noted at [17]: [AHEPA NSW's counsel] point out that that amendment was in one sense misconceived, since the 2005 resolution amending cl 3(1) of AHEPA NSW's constitution had purportedly removed the proviso at the foot of cl 3(1). However, a 2007 consolidation of the constitution had not reflected that change by deleting the proviso as originally set out in the 2003 Rules … and the amendment appears to have been passed on an assumption that the proviso remained in cl 3(1), and to have conformed that proviso to the change to cl 3(1)(a) made in 2005 … thereby reinstating the proviso in an altered form.

[12]

Order of AHEPA Australasia constitution and rules 2010

In 2010, the constitution and regulations of The Order of AHEPA Australasia were amended, the latter now called By-laws. The constitution, again, contained its own provisions for trustees (now Part VII) and, perhaps curiously, additional rules for The Order of AHEPA in the State of New South Wales. The Additional Rules now noted: The Order of AHEPA NSW Incorporated has adopted this Constitution and By-laws. Where this Constitution and By-laws conflict with the rules of AHEPA NSW Incorporated, the rules of AHEPA NSW Incorporated shall take precedence. The Additional Rules in respect of trustees remained unchanged. Additional Rules were provided for Victoria but not Queensland, the constitution recording that "Queensland does not require additional rules as long as the original Principles and Objects remain unchanged".
The drafters of the 2010 constitution of The Order of AHEPA Australasia do not appear to have appreciated the implications of the incorporation of AHEPA NSW and simply retained the Additional Rules from the 1990 constitution without amendment, apart from referring to The Order of AHEPA in the State of New South Wales as AHEPA NSW Incorporated. Before passing on from this document, it should be noted that the Additional Rules were not the same as AHEPA NSW's rules. In respect of the register, funds and authorisation of accounts, AHEPA NSW's rules were more detailed although not necessarily inconsistent. In respect of the financial year, audits and trustees, the Additional Rules had no comparable in the AHEPA NSW's rules. In respect of the annual general meeting and distribution of surplus property on dissolution, AHEPA NSW's rules were inconsistent with the Additional Rules. Overall, the Additional Rules appear to have been written without regard to the rules of AHEPA NSW.
Like the 1990 Regulations before it, the 2010 By-laws contained Part X in respect of the admission of new members to Chapters. The process of application, investigation and interview was, essentially, unchanged. As before, in the event of a favourable report from the interviewing committee, the application was to be submitted to the Chapter at a meeting for voting. As before, a successful candidate was required to present themselves for initiation into the Order. Dr Diamandis says the interview procedure has not been used for many years, and I am inclined to accept that evidence as inherently likely.

[13]

The struggle begins

In about 2010, the committee of management of AHEPA NSW reviewed its future. The average age of members of AHEPA NSW was then between 65 and 70 years. Less than 10% of members were under 50 years of age. The number of active members was about 300. Mr Fandakis was then a member of the committee of management and expressed a concern that the majority of members chose not to be involved in the activities of AHEPA NSW as they did not find the organisation interesting or engaging. It was thought that one of the main reasons why members did not attend events was because AHEPA NSW's headquarters on the Princes Highway at Rockdale did not have modern facilities or parking. This was thought to be unacceptable, particularly where AHEPA NSW had assets worth some $20 million. It was thought that, to better secure the future of the organisation, AHEPA NSW should establish new headquarters capable of attracting more new and younger members. From 2011 to 2014, the committee of management explored various options.
In March 2015, the Grand Lodge of New South Wales was said to have seceded from The Order of AHEPA Australasia and informed the National Lodge of this fact in May 2015. Legal advice was obtained and the National Lodge decided to expel Mr Kallimanis, then President of the Grand Lodge, for breaches of the Constitution. In June 2015, the president of the National Lodge met with the Grand Lodge of New South Wales to try to negotiate their differences.
In October 2015, at the National Convention of The Order of AHEPA Australasia, the chairman gave an opening address defending the continuing relevance of the ideals of the Order as "NOT antiquated" and noted: It is disappointing that the Grand Lodge of NSW is not involved, they have decided to hold their State Convention at a time which firstly, is Unconstitutional and is a deliberate act of insubordination. … The National Lodge over the last 2 years and in particular the previous 12 months, has been challenged and subjected to un-AHEPAN behaviour from some Grand Lodge members in NSW. Deliberate acts of harassment were said to have been engaged in towards the women's Chapters in New South Wales and a motion was moved, but lost, that the District Lodge come under the jurisdiction of the National Lodge. A further motion was moved and carried: That any AHEPA incorporation or entity in Australia must fully adopt the Constitution and By-Laws of the unincorporated association, namely the Order of AHEPA Australasia, in order to be permitted to use the trade mark, name and logo.
Further, it was resolved: To unify AHEPA and have One Head of the Association in each State and Territory by establishing a STATE COUNCIL as the highest executive body which will comprise of all past and present Grand & District Lodge presidents and past and present Chapter presidents, with the executive elected at the State Convention/AGM. Only past Chapter Presidents qualify for election to the State Council executive. Finally, it was resolved to incorporate the National Lodge as the highest executive body of the Order in Australasia with all State Councils, Lodges and Chapters as the stakeholders and comprising all past National or Supreme Presidents, the current National President and the 17 elected members. It would appear that major changes were being proposed in order to unify the State bodies and deal with an emerging difference in direction with the Grand Lodge of New South Wales.
On 18 November 2015, the 2003 Rules of AHEPA NSW were further amended, although the amendment was not registered and, in the first proceedings, AHEPA NSW agreed not to register the amendment as part of a compromise of the proceedings. It is reasonable to think that the amendments were directed towards further separating AHEPA NSW from the hierarchy of The Order of AHEPA Australasia. On 21 November 2015, Elias Doufas, who appears to have a held a senior role within The Order of AHEPA Australasia, emailed Mr Antonakos and other representatives of the New South Wales, Queensland, Victoria, Western Australian and ACT Grand Lodges, formulating a "Plan of Action". It was then apparently in mind to bring legal action against a member referred to as "JK", which I take to be a reference to Mr Kallimanis, President of AHEPA NSW. Mr Doufas proposed: 1. Incorporate the National Lodge and the State councils of VIC and NSW. We now have the approved National Convention decisions to move forward with actioning them. This has become URGENT as we need to establish a legal entity in order to take any legal action necessary. If the National Lodge is incorporated as a company limited by guarantee it has no assets and can take any legal action in its own right without worrying about having repercussions in if it does not succeed. No one member can carry this responsibility on their own. The NL will also own the Name and trade mark as well be able to enforce the "legal" Constitution. Incorporating a NEW AHEPA NSW Inc. with the remaining Chapters will also give you this right. It was proposed to take action against "JK" by both the newly incorporated National Lodge and State Councils "re the name and logo and AHEPA Inc for the property". A member of the Queensland State Council replied in favour noting, "We are not going to give up if the State of NSW got his way this time".
As best the "Plan of Action" can be understood, it appears that there was something of a power struggle between The Order of AHEPA Australasia and the Grand Lodge of New South Wales such that the national body was giving consideration to incorporating a new AHEPA NSW. The dispute appeared to concern matters of intellectual property of AHEPA and property. In December 2015, the president of the National Lodge again met with the Grand Lodge of New South Wales to attempt to negotiate their differences.

[14]

Property development at Bexley

In February 2016, Rockdale City Council called for tenders to redevelop Bexley Bowling Club and enter into a long-term lease. On 18 March 2016, Mr Kallimanis submitted a tender prepared by the Committee of Management of AHEPA NSW. Mr Fandakis believed that the project should be undertaken to ensure the future survival of AHEPA NSW by upgrading its facilities and attracting new and younger members.
AHEPA NSW proposed to refurbish and repair the existing buildings to bring them up to current building codes, retain one of the bowling greens and construct car parking on another. AHEPA NSW committed to invest $950,000 in this task, including a new cafe and commercial grade kitchen. On completion of these works, AHEPA NSW proposed to submit a development application to construct a multi-purpose hall called "the North Bexley Community & Recreational Centre" costing between $3 million and $4 million, to include a main hall for sport and social use, a stage, canteen, community rooms, gymnasium and facilities. Preliminary concept plans and perspectives for the multi-purpose hall, surrounding spaces and the existing buildings were submitted. As to its financial capacity to undertake and complete the proposed works, AHEPA NSW stated in its tender: ORDER OF AHEPA NSW INC is a financially sound organisation and can fund the proposed activities from the sale of our property at 394-396 Princes Highway Rockdale, our ongoing property rental income and cashflow. In addition to funding this project proposal, as a Community Organisation we are also donating over $900,000 over the next 5 years and we will retain a surplus of over $1m. A business plan accompanied to the tender together with a projected profit and loss statement for the first five years of trading, itemised works and costings and an independent building inspection report. Salient leasing terms were submitted: a minimum lease of 21 years was requested. AHEPA NSW submitted financial reports as part of its tender, both for AHEPA NSW and its Committees and Chapters.
In April 2016, the Council accepted the tender for the leasing of the site. In June 2016, a Deed of Agreement was signed by the Council and AHEPA NSW.
In July 2016, the President of the National Lodge endeavoured to continue negotiations with the Grand Lodge of New South Wales but a motion was unanimously passed by the National Lodge that there should be no further talks with the Grand Lodge of New South Wales.
In September 2016, AHEPA NSW submitted a revised proposal. An extension was proposed to the first floor of the existing building. A lower ground parking area was also proposed for the new multi-purpose hall. President Kallimanis proposed to do the project in two stages, the first being to refurbish the existing buildings and grounds including an extension to the first floor and the lower ground floor parking area. The new multi-purpose hall would then be completed in Stage 2.
In October 2016, the National Convention of the Order of AHEPA Australasia took place. The chairman, in his opening address, recorded his disappointment that only 50 AHEPANs were in attendance and the younger people "stayed away". It could be all the problems we were having in the last few years and the differences we are having as a National Lodge with the biggest and prime state the Grand Lodge of NSW arguing amongst ourselves we end up divided and we are two AHEPA's now in NSW three Sister Chapters and one AHEPA Chapters started a State Council, as per a decision taken at the 61st National Convention, as they do not want to be under the Grand Lodge of NSW.
A motion was passed that the National Lodge finalise amendments to its constitution, on the path towards the incorporation of the National Lodge. Mr Doufas pointed out some important matters in respect of the incorporation of the national body, including: There is no need to have any Trustees as the Company may hold the assets, Trade mark and any property but will not have any rights in any State assets. Reference was made in the minutes to a "split" with the Grand Lodge of New South Wales and it is clear that the structure of the Order of AHEPA was being reviewed and changed to deal with this problem and to protect the intellectual property of the Order of AHEPA. The name of the "Grand Lodge" was to be changed to "State Council".
On 30 October 2016, the State Council of New South Wales was formed by members of Chapters Arete, Antigone and Apollon. Ms Penny Cretan was State President.
On 14 December 2016, the Council accepted AHEPA NSW's revised proposal. Mr Fandakis said that, whenever a proposal was made to the Council, some 20 colour copies of the proposal on A3 size paper were printed and placed on the main table at the meeting hall of AHEPA NSW so that whoever wanted a copy could get one.

[16]

AHEPA Australia Limited

In July 2017, AHEPA Australia Limited was incorporated. Mr Doufas was appointed as secretary and one of its many directors. Mr Antonakos became a director. The only asset of AHEPA Australia Limited is a trademark and some cash. Mr Fandakis considered that AHEPA NSW does not have any ties with AHEPA Australia Limited. AHEPA NSW says that the decision by persons aligned with the plaintiffs to incorporate AHEPA Australia Limited with a similar name is itself a reflection of the strategic steps taken by factions as part of a "broader dispute" concerning the future direction of various Greek cultural organisations or associations. To be blunt, the Plaintiffs' contention that AHEPA Australia Limited has some role to play in determining the membership or governance of the Association is but a thinly veiled attempt to take over control of the Association by stealth.
In October 2017, the National Convention of The Order of AHEPA Australasia took place. The State Council of New South Wales attended, represented by Ms Cretan and Mrs Alexandrou. The minutes record that Mrs Alexandrou and Ms Melas "reported passionately" on their situation in New South Wales. It was said that AHEPA NSW had used a security guard to exclude 20 members of Daughters of Penelope Chapters from the annual general meeting, changed the locks of the AHEPA meeting hall, sold the building without going to an annual general meeting and drafted a new constitution which did not include the Daughters of Penelope. The following motion was carried: That the AHEPA 63rd National Convention held on 16-18th 2017 write to the NSW Chief Justice regarding the matters re AHEPA NSW and ask the Chief Justice to order all parties to the negotiable table under the rules of AHEPA as existed lawfully before the NSW INC seceded and to be conciliated by a court appointed mediator. Mrs Alexandrou was presented with The AHEPAN of the Year 2016 award by the National President. Mr Doufas praised Mrs Alexandrou and Ms Melas "for taking the brunt of a court case and representing not only the members of NSW but all AHEPA in the current court case". In contrast, a letter from another member was discussed: the National Lodge was criticised by the member "for not acting properly in the matter with the Grand Lodge of New South Wales and for spending large amounts on legal fees". The National Lodge was accused of a "secret plan" to destroy the Grand Lodge of New South Wales. This was rebutted by a former National President.
A new constitution was approved at the National Convention of AHEPA Australasia, being "Revision C" of The Order of AHEPA Australasia constitution. Mr Doufas explained to those present: Membership The Membership of AHEPA Australia will comprise of all members of all Units of AHEPA in all states of Australia. However only those who are eligible to attend the National Convention shall be eligible to carry a vote. …
On 6 March 2018, the Minister for Local Government approved the issue of a 21-year lease of Bexley Bowling Club to AHEPA NSW. This was an important advance in AHEPA NSW's efforts to develop the site. The Council contacted AHEPA NSW and arranged a meeting at Council's chambers on 12 April 2018. Before the meeting, AHEPA NSW inspected the property with a BCA consultant and a structural engineer with a view to preparing building condition reports.

[17]

Clarifying the Register of Members

On 21 March 2018, Black J heard the first proceedings. As senior counsel for AHEPA NSW explained, after a protracted period of negotiation, AHEPA NSW and the representative members had come to an agreed position, abandoning the 2015 resolution but jointly seeking to have the earlier resolutions registered and also to establish a regime to ascertain the membership of AHEPA NSW going forward. After an explanation by AHEPA NSW's senior counsel, adopted by counsel for the defendants, as to the circumstances in which the constitution had sought to be amended from time to time, his Honour made consent orders to register the 2005, 2007 and 2010 amendments and to call a special general meeting to reconstitute the membership. Further, the Court noted an agreement between AHEPA NSW and the representative defendants: 10. If the [NSW Commissioner of Fair Trading] registers the … resolutions … the persons who are members of [AHEPA NSW] in the financial year in which the New SGM is held and who are also entitled to vote at the New SGM consist of all persons who as at the 30 June date immediately preceding the holding of the New SGM, were financial members of a Chapter listed in Schedule 1 of these orders, such membership to be proven by each Chapter submitting to [AHEPA NSW]: (a) receipts issued to each member of the Chapter, showing that each member has paid the applicable membership fee required by the Chapter within the financial year ending on the 30 June date immediately preceding the New SGM; and (b) a statutory declaration made by the Secretary or other responsible person of the Chapter verifying the list of members who have been issued with such receipts and verifying that he or she has no reason to doubt the correctness of the information shown in such receipts (including the information as to the date when the membership fee was paid). Schedule 1 listed 13 Chapters being Chapter Arete No. 3; Chapter Platon No. 4; Chapter Prometheus No. 6; Chapter Anatole No. 7; Chapter Antigone No. 8; Chapter Diogenes No. 8; Chapter Heracles No. 12; Chapter Apollon No. 16; Chapter Ippokratis No. 21; Chapter Chiron No. 22; Chapter Alexandros No. 25; Chapter Odysseas Elytis No. 26 and Chapter Antigone No. 27. As I understand it, the chapter numbers are assigned consecutively across Australia, but with separate series for men's and combined chapters, on the one hand, and women's chapters on the other, hence the two chapters being "No. 8". Chapter Antigone No. 27 purports to be a successor to Chapter Antigone No. 8, but recently re-founded as a combined chapter, not a women's chapter as originally constituted. Chapter Antigone No. 8 also still exists, such that there are two Antigone Chapters, one in each of the factions represented in this litigation.
On 10 April 2018, AHEPA NSW inspected the Bexley Bowing Club with a structural engineer. The building appeared to have deteriorated and the engineer expressed concern about the structural capability of the building to permit the extension to the first floor. On 12 April 2018, AHEPA NSW met with the Council and conveyed the findings of its engineer, suggesting that their consultants needed to examine the building further to determine the best course of action. Council stressed that this must be done immediately and AHEPA NSW must submit a proposal quickly. Council required AHEPA NSW to compile and submit a schedule of all works and associated specifications for Stage 1 and to advance the proposed works from conceptual to full design, with the design package to form part of a development application. AHEPA NSW retained structural, hydraulic, electrical, mechanical and BCA consultants to report on the existing condition of the building and consider revised proposals.
On 13 April 2018, Black J gave reasons in respect of the orders already made in AHEPA NSW No 1, noting at [2]: (emphasis added) It is common ground that there have been broader disputes between AHEPA NSW's committee of management and persons aligned with it, and Ms Melas and Ms Alexandrou and persons aligned with them, concerning AHEPA NSW's management and future direction. Those disputes also concern the management of, and the relationship between AHEPA NSW and the constituent units of, an unincorporated association known as the Order of the Australasian Hellenic Educational Progressive Association ("Order of AHEPA"). It is also common ground that it is not necessary for the Court to determine these disputes or the contested factual matters underpinning them. The judgment reflected the consent position reached by the parties and an adoption of AHEPA NSW's submissions rather than a critical analysis of the underlying rules. In these proceedings, AHEPA NSW did not accept any suggestion that AHEPA Australia Limited was one and the same (albeit in corporate form) as the unincorporated association referred to by Black J in this passage.
On 27 April 2018, Mr Kagelaris made sure the Register of Members was up to date and sent it to Mrs Alexandrou in preparation for a Special General Meeting to take place on 30 April 2018. A "unique list" was also provided to check members as they entered the room to vote, comprising 302 names. Mr Kagelaris had only been secretariat of AHEPA NSW since November 2017 and so it was, it seems to me, probably the first time he had done this task. In respect of discrepancies or errors in earlier versions of the register of members, President Kallimanis noted in a letter to Mrs Alexandrou attaching the list: Finally, we wish to remind everyone that people at AHEPA work on a voluntary basis and as such they are excused if they make an error. Also let us not forget that for most AHEPANs, English is their learned second language which makes things a little harder. On 30 April 2018, a special general meeting was held. The "unique" list of 302 members was approved.
In May 2018, AHEPA NSW received the reports and findings of its consultants and in June 2018, AHEPA NSW submitted an amended proposal to the Council to demolish the existing buildings on the site. AHEPA NSW submitted to Council that, based on its consultants reports, it was not technically feasible to retain the existing building and extend the first floor as previously envisaged. It was also not economically viable to refurbish and upgrade the existing building. In June 2018, AHEPA NSW submitted an architectural proposal for the proposed new building, to also be completed in Stage 1.

[18]

Second proceedings

It would appear that the judgment of Black J in AHEPA No 1 did not quell the disputes between the members of AHEPA NSW. On 12 June 2018, President Kallimanis invited the members of AHEPA NSW to an open forum on 24 June 2018 to "put an end to the lies and to the personal attacks" and to discuss: a. the organisation before the General Meeting of 2015; b. the organisation after the General Meeting and the judicial period until today; c. the development process for Bexley Bowling Club; d. the future.
On 24 June 2018, the Open Forum was held from 3.30 pm to 6.00 pm. Some 65 people attended. Notes of the meeting prepared by Mr Antonakos, who, it will be recalled, swore an affidavit in support of the defendants' position in the first proceedings, reflect the level of acrimony then present. An explanation appears to have been given of AHEPA No 1 and discussion as to how to move forward, including proposing a new constitution at the next annual general meeting. According to Mr Antonakos' note, which I am slightly reluctant to rely upon given his apparent antipathy to Mr Kallimanis, Mr Kallimanis expressed concern about the National Lodge's "Plan of Action", thought to include taking control of the assets of AHEPA NSW. In respect of the Bexley Bowling Club, the architect explained that it was not viable to refurbish the existing building and that plans to demolish that building were currently with Council for approval. There were questions from the floor as to the cost of the new building, and the architect was unable to commit to a cost at that stage.
On 23 July 2018, AHEPA NSW wrote to Chapters Arete No. 3, Antigone No. 8 and Apollon No. 16, rejecting cheques for membership fees of AHEPA NSW. The letter stated: … the Order of AHEPA NSW Inc. only recognises the standing and authority of Chapters which abide by the Rules and Regulations of the Grand Lodge of NSW and therefore only members of Chapters which abide by the Rules and Regulations of the Order of AHEPA NSW Inc are eligible to become and/or remain members of the Order of AHEPA NSW Inc. Accordingly, as [your] Chapter … does not abide by the Rules and Regulations of the Order of AHEPA NSW Inc., persons initiated into this Chapter are not eligible for membership of the Order of AHEPA NSW Inc. as such persons do not satisfy the eligibility criteria for membership of the Order of AHEPA NSW Inc. The connection between these letters and the rules of AHEPA NSW was non-existent. The Chapters were those which formed the State Council and the letter appears referable to a broader power struggle between unincorporated entities within the AHEPA structure.
On 24 August 2018, Mrs Alexandrou and Evangelia Bouris commenced a second set of proceedings against AHEPA NSW in the General List of the Equity division of this Court seeking declarations as to who were members of AHEPA NSW. Mrs Alexandrou and Mrs Bouris sought to be appointed as representatives of all members of Chapters Arete No. 3, Antigone No. 8 and Apollon No. 16.
On 12 September 2018, the Council endorsed AHEPA NSW's revised proposal to replace the existing building and resolved that a further report be submitted tabling the proposed lease terms and design documentation including a detailed program and costings, demonstrating AHEPA NSW's financial capacity to deliver the proposed works. Council also resolved that, three months after Council resolved to progress the lease, AHEPA NSW would be required to lodge a development application for the site. On 13 September 2018, Council asked AHEPA NSW to submit a full scope of works including specifications as required by the Preliminary Deed of Agreement in one month and, further, to advance discussions on the proposed terms for the Deed of Agreement to Lease and the lease.
In about September 2018, Mr Kagelaris completed the annual task of updating the Register of Members. He used the lists of financial members sent by the Secretary or President of each Chapter after the end of the financial year on 30 June 2018: the lists did not have a standard format and were generally handwritten. The lists arrived in July and August. Mr Kagelaris updated the Register of Members based on this information, adding new members who had joined the Chapters and deleting the members who had neglected to pay their annual membership fees, had resigned or passed away. Mr Kagelaris maintained the register in an excel spreadsheet recording the name, address and contact details for each member and the Chapter to they belonged. On completion of this task, the Register of Members had 368 members. A member of Chapter Arete No. 3, Mary Loizou, was omitted in error.

[19]

Membership of AHEPA NSW increased

On 18 September 2018, AHEPA NSW obtained advice from counsel on rule 3 of AHEPA NSW's rules. Counsel concluded that rule 3 identified two separate pathways to membership: 1. under sub-rule 3(1), a person is "entitled to membership" if they were a member of the unincorporated association as at 30 June of the last financial year; or 2. a person is "qualified" to be a member if they are nominated for membership in accordance with rule 4(1) and if the committee approves their membership. Counsel advised that one did not need to comply with both sub-rule 3(1) and sub-rule 3(2) in order to become a member of AHEPA NSW. Counsel suggested that such an approach would enable new members to be admitted in a short time frame and this may well be a cost-effective way of dealing with obstacles arising from the need to pass special resolutions at a general meeting of AHEPA NSW.
On 25 September 2018, the Council met with AHEPA NSW and outlined its key timeframes established by Councillors with a view to a further report being submitted at the December meeting of the Council to consider the full legal documents with the development application to be lodged in February 2019. President Kallimanis advised that "there are a few necessary items which will need to be endorsed by the members of the organisation via normal voting; it is a fact of life that when we deal with community organisations, members often alter their opinion over time and it becomes necessary to vote again on motions that were previously accepted". On 10 October 2018, Council met and received an update from AHEPA NSW on Bexley Bowling Club.
It would appear that Counsel's advice was followed and nominations for membership of Chapters of AHEPA NSW increased substantially. On 9 October 2018, lists of nominees for membership of Chapters Diogenes No. 8, Antigone No. 27, Chiron No. 22 and Ippokratis No. 21 were sent to the secretary of AHEPA NSW, Dr Diamandis. There were 140 nominations in total. On 9 and 10 October 2018, Dr Diamandis deposited membership fees for applicants nominated by the Chapters of Chiron No. 22 and Antigone No. 27, being $1.10 per member.
On 11 October 2018, the committee of management of AHEPA NSW met and, amidst discussions about the development at Bexley Bowling Club, the second proceedings and whether to call a special general meeting to adopt a new constitution to "close all the open wounds", the nominees for membership of the Chapters Anatole, Antigone No. 27, Chiron, Diogenes and Ippokratis were endorsed.
A few days later, Dr Diamandis gave Mr Kagelaris the lists of nominees for membership who had been endorsed and Mr Kagelaris revised the Register of Members accordingly. The total number of members in the Register was now 492: this was an increase of 124 members (it is not clear what happened to 16 of the 140 members endorsed on 11 October 2018). Dr Diamandis agreed that this was the first time that members had been admitted to AHEPA NSW without being financial members of a Chapter of AHEPA NSW as at 30 June of the previous financial year. Dr Diamandis referred to this as "a second pathway" identified by counsel.

[20]

Were these new members valid members of AHEPA NSW?

This is the key question in this case. AHEPA NSW lodged a revised set of rules in 2018 incorporating the orders made in the first proceedings. For ease of reference, Rule 3, "MEMBERSHIP QUALIFICATION", now provided: (1) Any person who has: (a) been a financial member of the unincorporated association on the 30 June of last financial year; and (b) agrees to be bound by the code of ethics and rules of the unincorporated association. shall be entitled to be a member of the Association. PROVIDED however that until such time as a person has been a financial member of the unincorporated association on the 30th June of the last financial year, such person shall be deemed to be an associate member and shall not participate in elections or resolutions. (2) A person is qualified to be a member of the Association i[f] but only if: (a) the person is a person referred to in section 15(1)(a), (b) or (c) of the Act and has not ceased to be a member of the Association at any time after incorporation of the Association under the Act; or (b) the person is a natural person who - (i) has been nominated for membership of the Association as provided by rule Part II-4(1); and (ii) has been approved for membership of the Association by the committee of the Association.
The plaintiffs seek declarations that: 1. on and from the registration of the 2005, 2007 and 2010 resolutions, the reference in clause 3(1) of the Rules to the "unincorporated association" has been and is a reference to those Chapters (or Units) of AHEPA Australia Limited that are geographically located in New South Wales; and 2. in order to become a member of AHEPA NSW entitled to vote at any general meeting, a person must have been a financial member of a NSW-based Chapter (or Unit) of AHEPA Australia Ltd on the 30th of June of last financial year, such membership to have occurred in accordance with Part X of the By-Laws of AHEPA Australia, as promulgated by the National Convention pursuant to clause 2 of Part X of the Constitution of AHEPA Australia.
The plaintiffs submitted that the amendments to the Rules in 2005, 2007 and 2010 significantly altered the effect of rule 3(1)(a). Whilst it was previously arguable that the rule had only been operable once - on the date that a certificate of registration was granted to AHEPA NSW - it now applied to a new group of people each financial year. The proviso to clause 3(1) continued to have no work to do in relation to anyone to whom sub-clause (a) applied and operated only in relation to those to whom sub-clause (b) applied, that is, those who agreed to be bound by the code of ethics and rules of the unincorporated association but were not financial members of that association on 30 June of the last financial year. It was also submitted that these amendments to clause 3(1) resolved any difficulties with the word "and" as a conjunctive interpretation could now be adopted. On this construction, in order to be entitled to become a member of AHEPA NSW, a person must be both a financial member of the unincorporated association on 30 June of the previous financial year and agreed to be bound by the code of ethics and rules of the unincorporated association.
Further, it was submitted by the plaintiffs that The Order of AHEPA Australasia had now formed a company limited by guarantee, AHEPA Australia Limited, and that this was the entity to which the rules now referred. The plaintiffs contended that it ought to be read as referring to the New South Wales based Chapters of AHEPA Australia Limited. It was suggested that it was the National Convention which was the entity incorporated but a separate unincorporated association continued to exist, membership of which meant membership of a Chapter. The plaintiffs accepted that the company and the unincorporated association could not be the same entity but submitted that the unincorporated association continued to exist but handed over some of its executive functions to the new entity. AHEPA Australia Limited sits alongside the Chapters, which are granted charters by the National Council but are not themselves a part of the company.
The plaintiffs conceded that there may be no precedent for the construction of the constitution of an incorporated association where the constitution incorporates by reference the constitution of a different association which has since ceased to exist in the same form, but submitted it was analogous to situations where a bequest was made in a Will to a charitable association which, at the time that probate was granted, had ceased to exist: In re Vernon's Will Trusts [1972] Ch 300 at 304-5; [1971] 3 All ER 1061 at 1065; Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 at 413; Stratton v Simpson (1970) 125 CLR 138 at 144; Public Trustee v Cerebral Palsy Association of Western Australia Ltd (2004) 28 WAR 496; [2004] WASC 36 at [68]-[69]; Overall v Family Voice Australia Inc [2014] NSWSC 736 at [45]-[46].
The plaintiffs submitted that the reference to financial membership of the unincorporated association in rule 3(1)(a) should not be held to have lapsed or become devoid of meaning but should be interpreted as reference to financial membership of a New South Wales-based Chapter of AHEPA Australia Limited, as determined by the Constitution and By-laws of that organisation. To paraphrase Darke J in the Family Voice Australia case, from the point of view of the membership of the Order of AHEPA, all that happened in 2017 is that they became members of a new organisation, namely AHEPA Australia Limited, which had the same objects and substantially the same rules as the former unincorporated body. There have been changes to the organisational structure but no changes to the stated aims or objectives or applicable by-laws. That is, a new instrument was adopted for the carrying on of the organisation's charitable purposes.
In order to be a member of a New South Wales-based Chapter of AHEPA Australia Limited, the plaintiffs submitted that Part X of the By-laws of AHEPA Australia Limited set out the procedure and contained 12 steps, which Ms Nagle said usually takes three months or longer to complete, being: 1. First, a member "in good standing" (clause 1) recommends a person for membership by submitting an application in writing in the prescribed form to the Secretary of their Chapter, including the names and addresses of three referees (clause 2). 2. Second, the Secretary presents and reads the application to the Chapter at its next meeting (clause 3). 3. Third, at the meeting where the application is read, the Chapter refers the application to a committee for interview (clause 3). 4. Fourth, the interview committee interviews and "instructs" the applicant (clauses 3 and 4). 5. Fifth, the interview committee reports its findings to the Chapter in the prescribed form (clause 3). 6. Sixth, on receipt of the interview committee's report: (i) If the report is favourable, the application is referred to the Chapter for approval (clause 3) and the name and address of each applicant and the proposer is circulated to the members along with notice that a ballot will be taken (clause 5). (ii) If it is unfavourable, there is an appeal process (clause 7). 1. Seventh, the application is referred to "the appropriate State/District Lodge" for registration (noting that registration does not take place until after initiation) (clauses 3 and 6(b)). 2. Eighth, balloting for acceptance or rejection of the application is conducted "at a regularly convened meeting" of the Chapter (clause 6(a)). 3. Ninth, if the application is accepted in the ballot, the secretary designates a time and place for initiation into the Order (clause 10(a)). 4. Tenth, prior to initiation, the applicant pays initiation fees (clause 10(c)). 5. Eleventh, initiation occurs (clause 10(a)). According to Ms Nagle, this is scripted and the applicant is required to recite the "Decalogue" in the presence of members including a solemn affirmation to "always be loyal and steadfast to the Order of Ahepa" and to "obey the Constitution and traditions of the Order of Ahepa". 6. Twelfth, the applicant is registered by the State/District Lodge, and the application form is then returned to the Lodge for archiving (clause 3 and 6(b)).
The plaintiffs submitted that it is clear from the By-Laws that attending an initiation ceremony is a precondition to membership of the Order of AHEPA. Part X, clause 11 of the By-Laws which states that if an applicant for membership fails to attend for initiation when notified by the secretary and fails to give a reason for non-attendance, the application will be deemed to be rejected as from the date set for initiation, unless the Chapter is of the opinion that the failure to attend was due to an unavoidable circumstance. Part X, clause 3 of the By-Laws states that the new applicant's application is referred to the Lodge (being the state-level "Grand Lodge" or "District Lodge"), for registration after initiation. Accordingly, the By-Laws do not permit registration of an application for membership until after the prospective member has attended initiation.
The plaintiffs submitted that, under both limbs of clause 3(1) of the 2018 Rules of AHEPA NSW, an applicant cannot become a member of AHEPA NSW until an initiation of the member has been conducted: 1. As to sub-clause 3(1)(a), it is a prerequisite for membership that a person was a financial member of a Chapter of the Order of AHEPA on 30 June of the last financial year. A person who has not attended an initiation ceremony is not a registered member of the Order of AHEPA. 2. As to sub-clause 3(1)(b), a prerequisite of membership to AHEPA NSW is that an applicant for membership "agrees to be bound by the code of ethics and rules of the unincorporated association". The agreement to be bound is given by the applicant through the recitation of the Decalogue during the course of their initiation. It follows, it was submitted, that the persons who, pursuant to sub-clause 3(1) of the rules of AHEPA NSW, are entitled to be members of the association and to participate in elections or resolutions, are those who, prior to 30 June of the last financial year, were admitted as financial members of the unincorporated association in accordance with Part X of the By-Laws promulgated by the, National Convention of AHEPA Australia Limited.
AHEPA NSW submitted that, with the incorporation of the association in 1993 and the subsequent passage of time, there no longer exists any meaningful work for rule 3(1) to perform. But this does not mean that its proper interpretation has changed from its predecessor in the 1993 Rules. The suggestion that the rules or by-laws of an external association, whether it be incorporated or not, operate to limit or curtail the membership regime defined in sub-rule 3(2) and rule 4 is inconsistent with rule 48, which expressly excludes the ability of any other purported constitutional rules to take precedence over the actual registered rules of the Association.
AHEPA NSW drew a distinction between the use of the word "entitled" in sub-rule 3(1), which suggested that a person who fell within that rule would not receive automatic membership but would still need to be entered in the Register of Members, with the use of the word "qualified" in sub-rule 3(2). The process of qualification set out in sub-rule 3(2)(b) requires nomination for membership and approval. Such a person, even if nominated and approved, does not become a member until their name is entered upon the Register in accordance with sub-rule 4(4).
AHEPA NSW noted rule 3 was originally enacted as rules 1 and 2. They were stand-alone rule rather than sub-rules. There was no structural indication that they were to be read together, or that rule 2 was subservient to rule 1. Further, it was submitted there was no practical reason why the proviso to rule 3(1) ought to apply to rule 3(2). If the association determines to permit additional persons to become members, there is no sensible reason why voting entitlements must be deferred until the following financial year, as the incoming member has already been nominated for membership and approved by the committee of management.

[21]

Construction of constitutions

In Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; [2006] FCAFC 144, Weinberg, Kenny and Lander JJ considered the construction of corporate constitutions in light of the High Court's judgments in Pacific Carriers Ltd v BNP Paribas (2004) 2118 CLR 451; [2004] HCA 35, Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 in respect of construing commercial contracts by taking surrounding circumstances into account (see, more recently, Newey v Westpac Banking Corporation [2014] NSWCA 319, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 and Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295). In separate judgments, their Honours expressed like views. Whilst it can no longer be said that surrounding circumstances can never be taken into account in construing constitutions (Weinberg J at [55]), or that terms cannot be implied (Lander J at [243]), the case for restraint when construing a constitution is powerful: Weinberg J at [56], Kenny J at [124], Lander J at [239], [243]. The rules of construction that apply to contracts should be applied with caution to constitutions, as a company's constitution is a contract of an unusual kind: it can be altered without the agreement of all of the contracting parties; it cannot be rectified even if it does not accord with the concurrent intention of the signing parties; the contracting parties vary from time to time as the members come and go, the constitution binding the members for the time being; and the constitution has a public dimension with statutory force and by its nature is more likely to be read and relied upon by third parties: Weinberg J at [57]-[58], Kenny J at [123], Lander J at [225]-[226]. These principles have been applied by Robb J in Johnston v The Greens NSW [2019] NSWSC 215 and Brereton J in In the matter of New South Wales Leagues' Club Ltd [2014] NSWSC 1610.
As to how the meaning of terms in a corporate constitution may change over time, Branson J considered this in Re Ferguson (1995) 58 FCR 106; sub nom. Re Giga Investments Pty Ltd (in admin) (1995) 17 ACSR 472 when construing whether the requirement to "meet together" extended to participation by telephone. At FCR 111, ACSR 476: ... Orthodox rules of construction would require that the words of the articles of association be given the meaning which they had as at the date of their adoption. If this is a recent date no difference between that meaning and the current meaning of such words is likely. If the articles of association were adopted many years ago the position might be different. However, without departing from the orthodox rules of construction, courts are, in my view, entitled to recognise that articles of association are instruments of company governance intended to endure and to be capable of operating with flexibility in changing circumstance (cf the approach of the High Court to the interpretation of the Constitution as reflected in eg Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29 at 81; Lansell v Lansell (1964) 110 CLR 353; R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Inc) (1979) 143 CLR 190; 23 ALR 439).
Re Giga Investments was noted with approval by Lander J in Lion Nathan Australia v Coopers Brewery at [244] and Brereton J in In the matter of New South Wales Leagues' Club Ltd at [9]: … Corporate constitutions must be afforded a measure of flexibility, as they are enduring documents which may have to apply in circumstances rather different from those that obtained when they were first adopted.
However, the authors of Ford's Principles of Corporations Law (LexisNexis, looseleaf) note at [6.080]: Progressive interpretation is only appropriate where it can be reasonably supposed from reading the constitution that the drafters using an expression contemplated that it would extend to such subject matter as should from time to time be described by the expression: cf R v Brislan (1935) 54 CLR 262; R v Judges of the Federal Court of Australia; Ex parte WA National Football League (Inc) (1979) 143 CLR 190; 23 ALR 439; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560; 56 ACSR 263; [2005] FCA 1812 at [77] (appeal dismissed Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1; 236 ALR 561; 59 ACSR 444; 24 ACLC 1436; [2006] FCAFC 144 at [111] and [244]).
As to the relevance of established practices, the plaintiffs relied on Lewis v Heffer [1978] 1 WLR 1061, where the Court of Appeal considered the rules of two unincorporated associations, the national Labour Party and the local constituency party, in circumstances where the National Executive Committee of the Labour Party suspended members of a local constituency party. There was strong evidence that the National Executive Committee had exercised a power over local constituency parties in this way over the years. Lord Denning MR noted at 1072, "In a body like this, rules are constantly being added to, and supplemented by, practice or usage: and, once accepted, become as effective as if actually written". Per Ormrod LJ at 1076: Where there is an established and well known and unquestioned practice in use in the association it is some evidence, and indeed it may be strong evidence, that this practice too is part of the terms and conditions which were accepted by persons joining the association. … If one adopted the contrary view, it must require an extraordinarily strong and clear case to justify the court in holding a well-established practice like this to be unconstitutional or ultra vires, more particularly where the organisation concerned is a voluntary, unincorporated and essentially informal body. The judgments of both Lord Denning MR and Ormrod LJ emphasise the qualities of unincorporated associations and their remarks may have less ready application to construing the constitutions or rules of incorporated associations. In this country, it seems to me that I should be guided by the principles articulated in Lion Nathan Australia v Coopers Brewery.

[22]

Construction of membership rules

In the revised set of rules in 2018 incorporating the orders made in AHEPA No 1, Rule 1, "INTERPRETATION" provided: (1) The name of the Association shall be "ORDER OF AHEPA NSW INCORPORATED" (referred to in these rules as "the Association"). (2) In these rules, except in so far as the context of subject matter otherwise indicates or requires … (f) "unincorporated association" means AHEPA NSW also known as the Order of AHEPA NSW. Having regard to the history of AHEPA and of the incorporation of AHEPA NSW, I think this is a reference to the unincorporated association of The Order of AHEPA in the State of New South Wales referred to the 1981 trust deed and Part XIV of the 1990 Constitution of The Order of AHEPA Australasia. This definition appears to have been largely overlooked in subsequent amendments to, and application of, the rules.
In its original sense, "unincorporated association" in rule 3(1)(a) was a reference to The Order of AHEPA in the State of New South Wales as it existed pre-incorporation in 1993. As that term had come to be used in rule 3(1)(a), as a result of the loss of the 1993 Rules for a period of time, the development of a practice of assembling the Register of Members each year based upon the lists of financial members submitted by the Chapters to the State Convention, the recasting of the Rules in 2003 to record this practice, and further amendments in 2005 and 2010, "unincorporated association" had come to mean the Chapters. Whether one refers to the Chapters as the Chapters of The Order of AHEPA Australasia or Chapters of AHEPA NSW is an exercise in semantics: the Chapters were unincorporated associations in their own right (or, sometimes, incorporated entities) who were affiliated with other unincorporated (or incorporated) entities in the framework provided by the Constitution of The Order of AHEPA Australasia. But it is those Chapters to which rule 3(1)(a) now referred. Rule 3(1)(b) was essentially a vestigial limb, reminiscent of the incorporation of AHEPA NSW in 1993 when "unincorporated association" meant something else.
The proviso inserted at the conclusion of sub-rule 3(1) operates only with respect to the text immediately preceding it. It does not apply to sub-rule 3(2). As Latham CJ stated in Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 274-5: As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is "dependent on the main enactment" and not an "independent enacting clause": Cf. R v Dibdin [1910] P 51 at 125. The Chief Justice noted that, depending on the drafting in the particular case, it may be that the proviso is in substance an independent and substantive enactment, adding to and not merely qualifying that which goes before: at 275. As explained at [44], when the proviso was enacted in 1993, it was a proviso to the then rule 1. Rule 3(2) - then rule 2 - was a separate, stand-alone rule. There was no reason then, and is no reason now, to apply to proviso other than to rule 3(1).
The members coming to AHEPA NSW through rule 3(1) are "entitled" to be members of AHEPA NSW. That is, if a person has been a financial member of a Chapter on 30 June of the last financial year, then that person is entitled to be a member of AHEPA NSW without further ado, and to vote, but for a finite period of time, being until the register of members is updated after the end of the next financial year. AHEPA NSW does not need to, and indeed is not permitted to, exercise its own corporate mind through a general meeting or the committee of management and decide not to add such a person as a member or not allow them to vote if they meet this criteria.
Rule 3(2)(b) remained a second pathway for new members, albeit diminished by the ham-fisted amendments to the rules of AHEPA NSW in 2003 which eliminated a pathway for such members through rule 3(1)(b). Applicants for membership through the process of nomination under rule 4(1) and approval of the committee of management of AHEPA NSW are "qualified" for membership rather than "entitled". "Entitled" suggests that someone has a present right to be a member, whilst "qualified" suggests that someone has fulfilled the prerequisites to becoming a member but does not necessarily have the right, without more, to become a member. This subtle difference in terminology may reflect the fact that, through the second pathway, AHEPA NSW is making the decisions and taking the actions necessary to make such an applicant a member rather than following the dictates of the Chapters. However, I am reluctant to read too much into subtleties of language in a document which has been crudely amended over time without consequential amendments to ensure that the document remained consistent.
Rule 4, "NOMINATION FOR MEMBERSHIP" provided: (1) A nomination of a person for membership of the Association, (a) shall be made in writing by the secretary of the unit of the unincorporated association nominating the person for membership of the Association; and (b) shall be lodged with the Secretary of the Association. (2) As soon as practicable after receiving a nomination for membership, the Secretary shall refer the nomination to the committee for endorsement by the committee. (3) The Secretary shall notify the nominee and request the nominee to pay within the period of 28 days after receipt by the nominee of the notification the sum payable under rule 9(1) by a member as entrance fee. (4) The Secretary shall, on payment by the nominee of the amount referred to in clause (3) within the period referred to in that clause, enter the nominee's name in the register of members and, upon the name being so entered, the nominee becomes a member of the Association.
The "secretary of the unit of the unincorporated association nominating the person for membership" is a reference to the Secretary of a Chapter. Whilst, under clause 7 of the 1990 Constitution of the Order of AHEPA Australasia, that could have been any unit of The Order of AHEPA including the Grand Lodge or National Convention, as best I understand the 2017 Constitution of AHEPA Australia Ltd, units are Chapters only. The "Secretary of the Association" is the Secretary of AHEPA NSW elected in accordance with rule 15 being, relevantly, Dr Diamandis. Thus, the second pathway of membership is as follows: 1. Nomination of person in writing by the Secretary of a Chapter, sent to the Secretary of AHEPA NSW, who sends it to committee of management for endorsement. 2. Committee of management approves the application. 3. Applicant pays $1 to AHEPA NSW within 28 days of request. 4. On payment of $1 within 28 days, the Secretary of AHEPA enters the applicant's name into the Register of Members and the nominee is thus a member of AHEPA NSW.
Members joining AHEPA NSW directly through the second pathway did not have a temporal limit on their membership, that is, it did not fall to be determined again by a Chapter at the end of the next financial year. The differences between these pathways is simply the result of a series of amendments over time to one pathway but not the other. It is not incumbent upon me, in construing the rules, to ensure that the pathways were comparable or fair, but simply to say what the document means as it is stated.
Rule 4(1)(a) says nothing about the nominee having been initiated as a member of the Chapter, although it is reasonable to think that the Secretary would not nominate someone to be a member of AHEPA NSW unless they were also content for that person to be a member of the Chapter. As to how someone becomes a member of a Chapter, a "ritual of ceremonies" for the Order of AHEPA, Grand Lodge of NSW, published in 2017 but first circulated by the Grand Lodge Ritual Committee in 2001 contains detailed instructions for an initiation (nine pages), including semi-darkness, lit candles, the Bible, statuary, and an apparently elaborate and lengthy ceremony. Ms Nagle says this process was used in each of the Chapters with which she has been affiliated or a member and ceremony takes at least an hour although accepted that "quite often members … don't follow word for word, but, yes, more or less". Dr Diamandis, having been a member of a Chapter for many years, says that the usual procedure nowadays is that the Chapter Secretary mentions to the members that an application or nomination form has been received and records it in the minutes. If it was necessary to determine the matter, I would prefer the evidence of Dr Diamandis as inherently more likely; either way, the 2003 Rules say nothing about adherence to such rituals at the Chapter level before its nomination of a member of AHEPA NSW is valid.
Rule 5, "CESSATION OF MEMBERSHIP" provided: (1) A person ceases to be a member of the Association if the person: (a) dies; (b) resigns that membership; or (c) is expelled from the Association (d) is an unfinancial member of the unincorporated association for a consecutive period of two (2) fiscal years. The reference to "unincorporated association" in rule 5(1)(d) seems also to refer to the Chapter. It is one of the ways in which a member of AHEPA NSW will cease to be a member. It makes sense, in a way: if someone becomes a member of AHEPA NSW through the first pathway - as a financial member of a Chapter - they should cease to be a member of AHEPA NSW if they cease to be a financial member of the Chapter. It does not necessarily impinge on someone who becomes a member of AHEPA NSW directly through the second pathway. But searching for perfect consistency in an imperfect document is an elusive task and, in the result, a construction which gives a common sense, efficacious construction is the only relevant goal.
It follows that the applicants for membership, whose nominations were submitted on 9 October 2018 to Dr Diamandis, endorsed by the committee of membership on 11 October 2018 and entered on the register of members a few days later, became members of AHEPA NSW in accordance with rule 3(2)(b) on entry into the register.
One feature of these events, however, is potentially significant. The membership fees of the nominees from two of the Chapters were paid before entry into the Register of Members. Cheques for the membership fees of the nominees from the other two Chapters were not deposited until after the names had been added to the register: Chapter Ippokratis No. 21's fees were deposited on 20 October 2018 and Chapter Diogenes No. 8's fees were deposited on 21 November 2018. Dr Diamandis said that the treasurers of the Chapters paid the sum required by giving him a cheque for the Chapter's nominees, and that the receipts relating to the deposit of the cheque payments were tabled at the meeting on 11 October 2018. Certainly, the minutes of meeting record that two deposit slips were tabled, but obviously enough, the remaining deposit slips could not have been tabled because the cheques weren't deposited until after the meeting. The dates when the cheques were deposited by AHEPA NSW do not tell me when the nominees paid their fees of $1.10 each to the Chapter. It was not put to Dr Diamandis that, in fact, he didn't receive the membership fees until after the names of the members were entered in the register, and thus I will proceed on the basis that the fees were paid before their names were entered.

[23]

A new constitution for AHEPA NSW

On 18 October 2018, the committee of management of AHEPA NSW held a special meeting. AHEPA NSW's solicitor attended and presented a draft Constitution and By-laws. 1. The amendments to the 2003 Rules, now re-named a Constitution (probably to encapsulate the change in legislative language in 2009), were wholesale and represented the first substantive re-write of the document since 1993. 2. The by-laws was a new document, the contents of which appear to have been drawn from the 2010 version of the Constitution and By-Laws of The Order of AHEPA Australasia. After a presentation by the solicitor, the committee of management recommended the adoption of the Constitution and By-laws. A date for the special general meeting was set for 13 November 2018. The minutes also referred to the fact that the Council was pressing to close the lease and tender documents by Christmas and that the National Convention would take place on 2 December 2018. It was hoped to approve the change of constitution by then.
On 22 October 2018, notice of a special general meeting at 7.30pm on 13 November 2018 was issued by AHEPA NSW to its members, being those on the Register of Members updated by Dr Diamandis to include the new members accepted at the committee of management meeting on 11 October 2018, the total membership thus being 492. The notice proposed a resolution that the Constitution be adopted in lieu of the current Rules, and attached the Constitution in clean and marked-up form as well as the proposed By-laws.
The notice and its attachments was sent to members according to the contact details recorded in the Register of Members. Where members had provided an email address, then an email was sent to them, being 229 members. The remaining members were posted the notice and accompanying documents. Some 40 members were sent the documents by both post and email. On 22 October 2018 at lunchtime, President Kallimanis and Treasurer Premetis posted the envelopes at the post office. The emails were sent late in the evening on 22 October 2018. Only two or three posted items were 'returned to sender', although the member to whom one of these items had been sent attended the meeting anyway.
On 23 October 2018, an advertisement in respect of the meeting was published in Greek newspapers O Kosmos and The Greek Herald and was also published on the website of AHEPA NSW.
Rule 40 of the Rules provided: SERVICE OF NOTICES (1) For the purpose of these rules a notice may be served by or on behalf of the Association upon any member either personally or by sending it by post to the member at the member's address shown in the register of members. (2) Where the document is sent to a person by properly addressing prepaying and posting to the person a letter containing the document shall unless the contrary is proved be deemed for the purposes of these rules to have been served on the person at the time at which the letter would have been delivered in the ordinary course of post. The rule does not refer to service of notices by email but doesn't suggest that service may only be effected by post. As I understand the evidence, none of the members object to being served by email per se and no-one to whom an email was sent says they didn't receive it. So those served by email appear to have been given 21 days' notice of the special general meeting.
The postal articles are deemed to be received on the day they would arrive in the ordinary course of post: rule 40(2). Section 160(1) of the Evidence Act 1995 (NSW) provides: It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted. Absent evidence to the contrary, the posted items are presumed to have been received on 31 October 2018, being less than 21 days before the meeting on 13 November 2018. As to receipt by post, Mr Antonakos said he received the notice by post and email, and on 22 October 2018, but I think the date reference is likely to the email only. Mr Kallimanis said he received the post on 23 or 24 October 2018. On 30 October 2018, Ms Nagle emailed Dr Diamandis saying that she had not received notice of the meeting. Dr Diamandis replied that he had checked the Register of Members, confirmed that her name appeared on the register and that she had been sent the notice of meeting and accompanying material. Dr Diamandis also provided her with a link to access all documents relevant to the meeting online. Ms Nagle replied that she had not received the package and, as she had not received his email until 1 November 2018, she had not been provided with the requisite notice of the meeting.
It seems to me that the presumption of service of postal items was not displaced by evidence, and thus the members to whom notice was sent by post only did not have 21 days' notice of the meeting. However, the plaintiffs did not take this point, but challenged whether particular members had been notified of the meeting (the complaint being made on 30 October 2018 and thus in ample time for the people concerned to make arrangements to attend the meeting if they so wished). Section 1322(1)(b)(ii) of the Corporations Act provides that "a reference to a procedural irregularity includes a reference to a defect, irregularity or deficiency of notice or time." Sub-sections 1322(2) and (3) have the result that the meeting is not invalidated unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied, and the Court declares the meeting to be void. These provisions are applied to associations by the 2009 Act: section 96 and section 97 provide that the Regulations may declare any matter to be an applied Corporations legislation matter, and to modify those provisions in their application to associations, and regulation 18 of the Associations Incorporation Regulation 2016 (NSW) declares any matter relating to associations to be such a matter in relation to section 1322 of the Corporations Act, except for subsection (3B). See also the Corporations (Ancillary Provisions) Act 2001 (NSW); section 5F of the Corporations Act and section 95 of the 2009 Act. No application was made by the plaintiffs to invalidate the meeting on this score, as would be required to avoid the automatic validating effect of subsections (2) and (3).
On 30 October 2018, the solicitors for the plaintiffs in the second proceedings wrote to AHEPA NSW's solicitors querying whether members of the disputed Chapters Arete No. 3, Antigone No. 8 and Apollon No. 16 would be allowed to vote on 13 November 2018 and conveying an offer by their clients to pay for the meeting to be professionally filmed. The solicitors also sought a list of all people who would be permitted to vote at the meeting to whom notice of the meeting had been given and sought confirmation as to how notice had been given. On 2 November 2018, AHEPA NSW's solicitors replied. Whilst declining to have the meeting recorded, the solicitors advised: The Register of Members lists names and addresses of everyone known to be a financial member of a Chapter on 30 June 2018. That information is provided by the Secretaries of the respective Chapters. … All members are welcome to participate in th[e] meeting. Our client has never asserted any financial member is not entitled to vote. Nor has our client prevented any member from exercising any other right attaching to membership. The letter was somewhat misleading in that the Register of Members had been supplemented by members whose nominations had been approved by the committee of management on 11 October 2018. Further, the letter did not sit well with AHEPA NSW's letters of 23 July 2018.
On 5 November 2018, the plaintiffs' solicitors in the second proceedings responded, providing names of 17 members who it was said had not received notice of the meeting. Further: … [W]e find it impossible to reconcile your client's position in its letters dated 23 July 2018 … that members of the Disputed Chapters were "not eligible for membership of the Order of AHEPA" with the assertion in your letter of 2 November 2018 that "[AHEPA NSW Inc] has never asserted any financial member is not entitled to vote. Nor has our client prevented any member from exercising any other right attaching to membership". A copy of the Register of Members was requested. The solicitors also proposed that the meeting be delayed to ensure that the notice requirements were complied with.
On 12 November 2018, the National Convention of AHEPA Australia took place at which its Constitution was amended to clarify membership, composition of the National Convention and its relationship with State and Territory Councils. The definition of the purpose of AHEPA was amended, to add that the purpose of AHEPA is "to unite and represent all State/Territory AHEPA Associations in Australia…" The membership rule was replaced with: Membership of AHEPA AUSTRALIA LTD shall consist of the following: a) One Incorporated AHEPA State/Territory Council operating in each State/Territory of Australia. b) Any other AHEPA UNITS/Chapters incorporated or unincorporated Associations in a State or Territory, which are under the jurisdiction and control of the State/Territory AHEPA Incorporated Association. c) The State/Territory Council and all the AHEPA Units under its jurisdiction must subscribe and operate under the Constitution and By-Laws of AHEPA Australia LTD as adopted at a National Convention of all member States/Territories and or as amended by the National Convention from time to time. d) The State/Territory Council and all the AHEPA Units under its jurisdiction must subscribe and operate under the Constitution and By-Laws of AHEPA AUSTRALIA LTD as adopted at a National Convention … followed by a list of individual members, being past and serving presidents of state and national councils. The Additional Rules for New South Wales and Victoria were removed (but not for Queensland)
On 12 November 2018, the day before the special general meeting, the solicitors for the plaintiffs in the second proceedings wrote to AHEPA NSW's solicitors again, pressing for a copy of the Register of Members and requesting inspection of the current Register of Members pursuant to rule 39 of the Rules together with the minutes of all Chapters under the control of the Grand Lodge of New South Wales from 30 June 2017 to 30 June 2018, to be made available from 5.00 pm to 7.30 pm on 13 November 2018, that is, immediately before the meeting. Presumably, the solicitors wished to check the register against the minutes of the Chapters. Apparently, it was thought that AHEPA NSW would have minutes of the Chapters in its possession because Mr Kagelaris was thought to keep them on his computer. An examination of the minutes, if indeed AHEPA NSW had them, would not have revealed the members added to the register on 11 October 2018.
On 13 November 2018, AHEPA NSW's solicitors replied that the Register of Members was available for inspection by any member in accordance with the rules and statutory requirements. It is unclear why a request for inspection of the Register has been left to this point in time. A copy of the Register will be available for inspection by all member at tonight's meeting, but it is unreasonable for special arrangements to be made for your proposed time period. … …Given the position that you and your clients have foreshadowed, the persons named in your letter dated 5 November 2018 will be allowed to join the meeting as well as the members enrolled in the Register. But that is not an acceptance that those persons are members. That contention is likely to be the subject of dispute. Any ballot cast by those disputed persons will be preserved, so that there is a basis for identifying whether their vote was or was not relevant to the meeting's outcome. Dr Diamandis says he was unavailable at the time requested to inspect the register. That may well have been the case, but AHEPA NSW clearly did not want the plaintiffs to see the register in advance of the meeting and thereby become aware of the second pathway.

[24]

Meeting on 13 November 2018

As described by Dr Diamandis, Mr Premetis and Mr Kallimanis, the meeting on 13 November 2018 was carefully organised, well attended and meticulously run. Of 492 members, 381 attended. According to Mr Antonakos, this was the highest attendance that he can recall of any general meeting since 1993. Rather than members signing themselves in on arrival, Mr Premetis, assisted by two other members, identified and marked members off the Register of Members. Whilst the plaintiffs' witnesses were concerned about the departure from usual meeting practice, it seems to me that AHEPA NSW recognised that this meeting needed to be conducted in a more meticulous manner than usual given the subject-matter and likely controversy attending any outcome. Dr Diamandis gave members whose names were on the Register of Members a blue ballot paper. Dr Diamandis handed out 371 blue ballot papers.
A list of disputed members was also at the meeting, listing 12 members, to which four additional names were added in handwriting at the meeting, and 10 of whom attended. The list was drawn from a list in circulation between the solicitors in the second proceedings, and comprised people about whom AHEPA NSW said it had not received sufficient information to verify whether they had become financial members of a Chapter between 30 April 2018 and 30 June 2018. The names of those people had not yet been entered in the Register of Members and thus they were not then members. If the member was not in the Register of Members but on the list of disputed members, then Mr Premetis ticked their name off the list of disputed members. Dr Diamandis gave these members a pink ballot paper. Dr Diamandis handed out 10 pink ballot papers. Dr Diamandis explained that the purpose of the pink ballot papers was so that the votes cast by the people whose membership at the time was disputed could be distinguished by the other votes should it be necessary to do so.
According to Dr Diamandis, one person was refused entry as she had not paid the membership fee to become a member and was not eligible to attend or vote. The membership fee was subsequently received from the Chapter in January 2019.
Michael Londos complains that, although a financial member of Chapter Heracles No. 12, he did not receive notice of meeting and, when he attended the meeting hall, he was refused entry by Dr Diamandis, Mr Premetis and Mr Kallimanis. He would have voted against the resolutions. When the Register of Members was finalised before issuing the notice of the meeting, the most recent list of financial members of Chapter Heracles No. 12 which Dr Diamandis had was for the year ended 30 June 2017, which Ms Nagle had provided in March 2018. Mr Londos' name was not on the list. Although Mr Londos' name was included on the list of financial members of Chapter Heracles No. 12 for the year ended 30 June 2018, that list was not sent to AHEPA NSW until the early hours of the morning of 23 October 2018, after the notice of meeting had been issued. But even when Dr Diamandis received the 2018 list, he did not necessarily accept that Mr Londos was in fact a financial member of Chapter Heracles No. 12: … I have no documentation from Mr Londos or from Chapter Heracles that this gentlemen is a member. … I have been a member of Chapter Heracles for 26 years. I know who is a member and who is not. … I'm secretary of the Order of AHEPA NSW Incorporated. Therefore I have access to the membership lists going back a number of years. Mr Londos' name does not appear on any list before this document.
There are no minutes of meeting of Chapter Heracles No. 12 in evidence and so I cannot determine whether Mr Londos became a member of that Chapter following the initiation process described by Ms Nagle, or at all. Dr Diamandis' stringent approach to Mr Londos' right to vote was perhaps at odds with that taken to the admission of new members via the second pathway. Having become aware that Mr Londos was entitled to vote by reason of having been identified as a financial member of Chapter Heracles No. 12 for the year ended 30 June 2018, Dr Diamandis should have sent him a notice of meeting and given him a ballot paper.
After reading the proposed resolution, members spoke for and against the motion. Mr Lianos spoke against the motion as did Ms Nagle. The procedure adopted at the meeting was slightly different from usual as the vote was not taken on a show of hands but by ballot. Ballot papers were provided and placed in ballot boxes. Counting commenced at 9.10 pm. Mr Premetis counted the votes assisted by two others. Mrs Alexandrou and another were scrutineers. The votes were counted twice. In favour of the resolution were 290. Against the resolution were 78 votes with one blank ballot paper. With 78.6% of the votes cast, the motion was carried. Of disputed members' votes, one voted in favour of the motion and seven against. Including the disputed members' votes, the motion was carried by 77.2% of the votes cast.
The ballots have been re-counted by the plaintiffs' solicitor, Ms Andrews. There were 367 ballot papers (358 were blue and 9 were pink). Counting blue ballots only, there were 76.02% in favour of the resolution and, counting pink ballots as well, there were 76.29% votes in favour of the resolution. However, Ms Andrews included abstentions in her tally, and the rules required 75% of votes cast: rule 31; section 39(1), 2009 Act.

[25]

Section 1322 of Corporations Act

As outlined at [153] above, section 1322 of the Corporations Act applies to incorporated associations in NSW. Pursuant to section 1322(2) of the Corporations Act, a "procedural irregularity" does not invalidate a relevant proceedings "unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court and by order declares the proceedings to be invalid." On the other hand, where the irregularity is "substantive" and not merely "procedural", the proceeding will be presumed to be invalid; although the Court has the power to make a validating order under its inherent jurisdiction or under section 1322(4)(a): Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 55 ACSR 185 [2005] NSWSC 1005 at [97] (Palmer J). The injustice or prejudice must not only be "substantial", but also real and not merely theoretical: Bull v Australian Quarter Horse Association [2014] NSWSC 1665 at [314] per Hallen J; Atlas Holdings Pty Ltd (as trustee for the Atlas Trust) v Allied Resource Partners Pty Ltd (2017) 122 ACSR 345; [2017] FCA 923 at [31]-[32] per Lee J.
The plaintiffs' submissions were largely directed to AHEPA NSW admitting ineligible votes at the general meeting - those added by the second pathway - being a "substantive" irregularity which would not warrant a validation order as substantial injustice was caused as the admission of those votes made a difference to the result of the meeting: Cordiant at [108]; Cambodian Buddhist Society of NSW v Thai [2017] NSWSC 1433 at [82]-[83], [124]. However, I have found that the members endorsed by the committee of management on 11 October 2018 and added to the register soon afterwards were members of AHEPA NSW, and thus their votes were valid. There was no irregularity on this score which requires a validation order.
The plaintiffs pointed to two further problems with the meeting: Mr Londos was excluded from voting; and the people on the list of disputed members who did not attend the meeting had not received notice of it. It is possible that, if they had been notified, they may have attended and voted against the resolutions. As mentioned, the list of disputed members had 16 names, of which 10 attended and voted: eight voted against the resolutions, one voted in favour, and one abstained. On the conclusion of the second proceedings, to which I will refer shortly: 1. of the 6 who did not attend the meeting, it was later agreed that 4 were members of AHEPA; and 2. of the 10 who did attend the meeting, it was later agreed that 2 were not members of AHEPA.
How does one unscramble this omelette? I think one ought to consider the potential result in the most conservative manner favourable to the plaintiffs. Thus, I have adopted Ms Andrews' tally, which does not accord exactly with the count at the meeting. I assume that Mr Londos, as he said, would have voted against the resolutions. I assume that, notwithstanding that the second proceedings were resolved on 10 December 2018 and then only by a declaration that the disputed members were members as at that date, that the members were accepted by AHEPA NSW as members when the notice of meeting was issued on 22 October 2018. I will assume that if the 6 who did not attend or, more specifically, the four of their number who were entitled to vote, had received notice then they would have attended and voted against the resolutions. I will assume that the two disputed members who attended and voted, but shouldn't have, accounted for the 'yes' vote and the abstention. If one adds 13 'no' votes (including the eight pink ballots actually cast) and removes one 'yes' pink ballot from the total votes cast as counted by Ms Andrews, the result is 370 votes cast of which 279 voted yes and 91 voted no, that is 75.4% in favour of the resolutions.
The question is whether an order should be made under section 1322 to cure any irregularity in respect of Mr Londos or the disputed members who did not attend the meeting and, potentially, could otherwise have voted against the resolutions. The irregularities were substantive, in that AHEPA NSW thereby deprived members of a right to vote by not recognising their entitlement to do so under its Rules. As to whether the persons party to the contravention acted honestly, it seems to me that AHEPA NSW had retained solicitors in respect of the second proceedings and counsel in respect of the membership rules and, it would appear, was acting consistently with their advice. Steps were taken to preserve the votes of disputed members pending the resolution of that issue. Overall, I consider that section 1332(6)(a)(ii) is satisfied. As these irregularities would have made no difference to the result of the meeting, making all assumptions in favour of the plaintiffs, then I consider it appropriate to make an order under section 1332(4) as I am satisfied that no substantial injustice has been or is likely to be caused to any person.

[26]

Registration of new constitution

The constitution adopted at the meeting was promptly lodged with NSW Fair Trading by Dr Diamandis.
On 16 November 2018, the second proceedings were listed before Black J for hearing of the plaintiffs' application to be appointed as representatives of all members of Chapters Arete No. 3, Antigone No. 8 and Apollon No. 16 and for AHEPA NSW to pay their costs of appearing as representatives. Counsel for AHEPA NSW abandoned reliance on the position put in its letter of 23 July 2018, accepted that the plaintiffs were entitled to vote at general meeting and were members of AHEPA NSW but was unable to assist the Court as to how many other members of the three Chapters were also on the Register of Members. His Honour considered AHEPA NSW's position to be "incoherent", leaving all members of the three Chapters in considerable uncertainty as to their position.
His Honour was satisfied that a representative order should be made, permitting Mrs Alexandrou and Ms Bouris to be representatives of all members of the three Chapters. However, his Honour was not satisfied that AHEPA NSW should indemnify the plaintiffs for their costs of doing so. Further, in order to clarify which members of the three Chapters were accepted as being members of AHEPA NSW, his Honour made the following orders: 1. Within seven days, [AHEPA NSW] advise the Plaintiffs of: (a) which persons in the represented class [AHEPA NSW] accepts are members of [AHEPA NSW], having the same membership rights as all other members of [AHEPA NSW]; and (b) which persons in the represented class [AHEPA NSW] does not accept have such membership rights and why.
By now, the Council was becoming impatient. Council expressed concerns over the capacity to meet the commitments made in AHEPA NSW's tender, in particular, the lack of a full design specification. On 16 November 2018, the Council requested an update on the design for Stage 1 by 19 November 2018 so that an update could be provided to the Council in advance of its December meeting. On 19 November 2018, Mr Fandakis advised the Council that it had become necessary to call a special general meeting to adopt a new constitution and obtain a fresh endorsement by the members at a general meeting to allow AHEPA NSW to continue its commitment to the Council regarding Bexley Bowling Club. Although a new constitution had been adopted and registered, the committee of management still needed to convene a general meeting to put a motion that the members re-endorse the agreement with Council regarding Bexley Bowling Club. As soon as the new constitution was registered, AHEPA NSW would give the required 14 days' notice to members for a general meeting: "based on the results of the previous vote for the constitution there will be no problem in passing the motion for Bexley Bowling Club". The initial proposed internal configuration of the Stage 1 building would also be presented to the members at the meeting and it was anticipated that AHEPA NSW would be in a position to proceed with the Council on 20 December 2018.
On 22 November 2018, AHEPA NSW's solicitors wrote to the solicitors for the plaintiffs in the second proceedings accepting that each of the persons in the represented group were entitled to membership and that their names already appeared in the Register of Members. AHEPA NSW accepted that all of those persons had the same membership rights as every other member of AHEPA NSW.
On 29 November 2018, NSW Commissioner for Fair Trading emailed AHEPA NSW indicating that several representations had been received about the management of AHEPA NSW and the validity of the meeting on 13 November 2018. Notice of 21 days was said not to have been provided in some instances or at all. It had also been asserted that some of the committee's actions were not consistent with their statutory responsibilities and that internal disputes were impacting on the operation and corporate governance of the association. On 5 December 2018, NSW Commissioner for Fair Trading sought confirmation that notice of the proposed special resolution had been provided to members and that the process undertaken in respect of passing the special resolution to adopt the new constitution complied with the Act, the current constitution and the law generally. AHEPA NSW's solicitor provided the assurances sought.
On 10 December 2018, the second proceedings were resolved by the entry of consent orders. The Court declared that each of the plaintiffs and the persons who they represented were members of AHEPA NSW and entitled to have their names recorded on the Register of Members. Dr Diamandis said that, after these orders were made, these members were included in the Register of Member, being the members to whom pink ballot papers had been issued if they had attended the special general meeting.
On 17 December 2018, Council followed up Mr Fandakis as to the registration of a new constitution and the new members' endorsement of the proposal for Bexley Bowling Club. A meeting was requested to obtain an understanding of AHEPA NSW's adherence to the time frames in relation to proving AHEPA NSW's financial capability to carry out the works, providing design detailed documentation and a firm date for lodgement of a development application. A meeting was arranged for 20 December 2018.
On 18 December 2018, the new Constitution and By-laws were registered by NSW Commissioner for Fair Trading. By reason of my earlier conclusions as to the validity of the resolutions passed on 13 November 2018, it follows that the registration was valid and correct.
On 20 December 2018, AHEPA NSW and the Council met. After the meeting, Council confirmed key dates to be adhered to: detailed floor layout plans, project management methodology, project scope and team by 21 January 2019 to be discussed at a meeting on 22 January 2019; detailed funding model by 28 January 2019 to be discussed on 29 January 2019; and all required documentation to lodge the development application by 30 April 2019. The Council concluded: Please note that due to the nature of time lapsed well beyond what was initially envisaged, if the above dates are not adhered to we may reconsider our offer to AHEPA for potential works licence to undertake development works at the subject site, 72 Laycock St Bexley North, and subsequent lease of the site. We are more than happy to assist where required and provide any guidance as requested, however we need to be in a position to demonstrate considerable effort has been made by AHEPA to progress this project when the matter is put before council in early Feb 2019.

[28]

Third proceedings

On 22 January 2019, solicitors for the plaintiffs in these proceedings wrote to the Secretary of AHEPA NSW objecting to the resolution being put to the annual general meeting as the information provided to members was said to be manifestly deficient. Complaint was made that the members had never been provided with documents with, so far as I can tell, did not then exist, being a proposed development application, proposed lease, quantitative survey in respect of the cost of the project, finance plans or professional advice. It seems to me that the committee of management had been distracted by its efforts to achieve a mandate for the proposal and install a workable decision-making structure going forward from attending to the substantive tasks in progressing the development. The solicitors suggested, on a basis that is not clear to me, that AHEPA NSW was engaged in an "apparently deliberate attempt to conceal all particulars" concerning the project sufficient to amount to a breach of section 30A of the Associations Incorporation Act 2009 as well as fiduciary duties owed to members of the association. In addition, the solicitors suggested that a large number of the votes cast at the 13 November 2018 special general meeting were by members not entitled to vote and thus the new constitution had not been passed. A copy of the Register of Members was sought or, failing that, inspection of it. The plaintiffs said they would approach the Duty Judge to seek injunctive relief unless AHEPA NSW agreed not to put the proposed resolution to the meeting on 28 January 2019 and to provide the Register of Members and supporting documents in respect of each recent member.
On 24 January 2019, these proceedings were commenced before the Duty Judge, Lindsay J. Affidavits in support were filed by Ms Nagle, Mrs Alexandrou, Mr Lianos and Mr Antonakos. On 25 January 2019, by consent, Lindsay J ordered an interlocutory injunction preventing AHEPA NSW from proposing or permitting voting on motions in respect of the Bexley Bowling Club at the meeting on 28 January 2019. The meeting took place but the resolution was not discussed.
On 1 February 2019, AHEPA NSW provided a preliminary funding scenario to the Council. It comprised a list of possible options subject to approval of AHEPA NSW's members including borrowing against the equity of AHEPA NSW's properties at Rockdale or Surry Hills, negotiating a joint venture or selling AHEPA NSW's properties in Rockdale and borrowing part of the cost. Preliminary discussions were said to be underway with other parties and once a suitable scenario was reached, they would request members' approval. I suspect the information submitted to Council was far less detailed than what was sought but, in the circumstances, there was little AHEPA NSW could do given its inability to discuss the matter at a meeting of members.
On 7 February 2019, AHEPA NSW attended a further meeting with the Council. Following the meeting, Council sent an email requesting a current market valuation of the properties AHEPA NSW wished to borrow against to fund the project, audited financial statements, a statement of loan balances for loans against any properties owned by AHEPA NSW and a summary of what was expected from a meeting scheduled for 27 February 2019 and the upcoming hearing in the third proceedings. Whilst the Council officer noted that the delays to date had been caused by AHEPA NSW's internal disagreements and subsequent inability to resolve to proceed with the project, It is important that we eliminate any excess delays beyond this point as it may start to compromise Council's confidence in the project proceedings.
On 11 February 2019, AHEPA NSW issued a notice of general meeting to take place on 28 February 2019 proposing the following motions: 1) That this meeting notes the contents of the Information Memorandum, as attached; 2) That the Committee of Management be authorised to proceed with negotiations with Bayside Council regarding the project at 72 Laycock Street Bexley North (Bexley North Bowling Club); and 3) that the Committee of Management be authorised to obtain funds not exceeding seven million dollars (AUD$7M) for the construction and completion of Stage 1 of the project. Attached to the notice was a three-page information memorandum describing the deficiencies in AHEPA NSW's current premises, the history of AHEPA NSW's efforts to obtain better premises, the progress of the tender to the Council and the current proposal for Bexley Bowling Club. The information memorandum noted that the Council required a complete development application to be lodged no later than 30 April 2019 and the next step was to engage planning, architectural, engineering and specialty consultants to prepare it. At the same time, Council would prepare the lease documents to be reviewed by AHEPA NSW's solicitors.
Mr Fandakis said that the latest preliminary floor layouts had been made available for inspection at the AHEPA headquarters, Monday to Friday, from 3.00 to 8.00 pm, from 13 February 2019 onwards. Mr Fandakis said: Whenever there was a meeting for the members, the documentation that was applicable to that meeting was placed - was physically tabled next to the attendance book and every member that attended the meeting had an opportunity to inspect whatever documentation was pertinent to the meeting …

[29]

Endorsement of secretary and treasurer of AHEPA NSW

On 18 February 2019, a meeting of the committee of management endorsed Mr Diamandis as Secretary and Mr Premetis as Treasurer of AHEPA NSW. The plaintiffs submit that under rule 15, the Secretary and Treasurer are to be elected by the committee of management by ballot rather than "endorsed" as they appear to have been. Further, as Dr Diamandis has never been a member of The Order of AHEPA Australasia, the plaintiffs submit he is not eligible to be appointed as secretary of AHEPA NSW.
By reason of my earlier conclusions as to the validity of the resolutions passed on 13 November 2018, it follows that the procedures for appointment of a treasurer and secretary under the new constitution were the ones to be followed. Whilst the former rules provided for the committee of management to elect its office-bearers, apart from the president and vice-president, from its members, the new constitution provided that the President, Vice-President, Treasurer and Secretary of the Grand Lodge hold the same roles in AHEPA NSW ex officio. Consistently with this, office-bearers in the committee of management were "endorsed" rather than elected. Whilst AHEPA NSW did not put on clear evidence that Mr Premetis and Dr Diamandis were, after the State Convention held on 2 December 2018, the Treasurer and Secretary respectively of the Grand Lodge of New South Wales, I infer it from the minutes of meeting of AHEPA NSW thereafter. They were thus correctly endorsed as the Treasurer and Secretary of AHEPA NSW on 18 February 2019.
On 20 February 2019, the plaintiffs' application for an interlocutory injunction to prevent the meeting on 28 February 2019 was determined, largely by consent, on terms to enable AHEPA NSW to obtain the funding needed to meet Council's requirements to lodge a development application and thus keep the commercial opportunity at Bexley Bowling Club alive until these proceedings were finally determined. AHEPA NSW gave an undertaking that, if the third resolution was passed at the meeting then AHEPA NSW would only expend up to $375,000 for the purpose of preparing reports to lodge a development application with the Council for Stage 1 of the development at Bexley Bowling Club, such funds to be raised from an authorised deposit-taking institution and secured by a mortgage against the Surry Hills property.

[30]

Meeting on 28 February 2019

On 28 February 2019, a special general meeting was held. The minutes of meeting suggest it was a tumultuous affair. Anthony Alexandrou, a member of Chapter Prometheus No. 6 and husband of Mrs Alexandrou, received the notice of meeting and information memorandum in the post on 15 February 2019. On arriving at the meeting, his name was marked off a list of members by Mr Premetis and on a laptop by Dr Diamandis and given a ballot paper. The meeting was chaired by the new President of AHEPA NSW, Bill Skandalakis. Two members spoke in favour of the motion and two against, being Mr Lianos and Mr Alexandrou. Mr Premetis and Mr Alexandrou counted the votes with scrutineers.
The resolutions passed with 72.48% of the votes cast: 189 members voted, 137 in favour and 52 against. It is not known which of the members who voted in favour of the resolutions were amongst those endorsed by the committee of management on 11 October 2018 nor, for the reasons given, does it matter. Under the former constitution, 21 days' notice would have been required for this meeting, along with75% of the vote. AHEPA NSW accepts that, if the Court concludes that the adoption of the new constitution in November 2018 was invalid, then the resolutions passed at this meeting were rendered invalid. By reason of my earlier conclusions as to the validity of the resolutions passed on 13 November 2018, it follows that these resolutions were validly passed.
The plaintiffs object to the third resolution on the basis that the committee of management substantially failed to make full and fair disclosure of all facts and material to enable members to determine whether to vote on the resolution. The information memorandum did no more than set out the nature of the project in broad terms. The committee failed to inform the members of the manner in which funding was proposed to be obtained, the extent to which it was proposed that any assets would be sold or encumbered and the terms on which this was proposed to occur, the estimated costs and duration of the project or the estimated financial impact of the project on the association based on an independently prepared feasibility study. The plaintiffs submit that the members of the committee of management breached their fiduciary duties.
Accepting that the members of the committee of management owed fiduciary duties to the members of the association (Lai v Tiao (No 2) [2009] WASC 22 at [577]; Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc v Group Training Association Queensland & Northern Territory Inc [2015] 1 Qd R 542; [2013] QCA 358 at [39]; Stratford Racing Club Inc v Adlam [2008] NZAR 329; [2008] NZCA 92 at [58]; Haselhurst v Wright (1991) 4 ACSR 527; (1991) 9 ACLC 728; Allen v Townsend (1977) 16 ALR 301; (1977) 31 FLR 431) and that this encompassed a duty of disclosure (Fraser v NRMA Holdings (1995) 55 FCR 452 at 466; (1995) 127 ALR 543 at 554, per curiam) there are two problems with the plaintiffs' complaint. The first is that the documents which the plaintiffs say should have been provided did not, so far as I can see, exist. It was not misleading to withhold documents which did not exist unless, perhaps, it was suggested by the committee that the documents existed. As Austin J noted in ENT Pty Ltd v Sunraysia Television Ltd (2007) 61 ACSR 626; [2007] NSWSC 270 at [21]: The Full Federal Court's decision in Fraser v NRMA Holdings Ltd is authority for the proposition (stated at 466) that "a proper discharge of the duty may require that the directors take reasonable steps to ascertain relevant information for communication to members if that information is not known to the board". That, in turn, is qualified by the proposition that in considering whether the directors should seek out additional information, it is relevant to take into account the time and cost of acquiring and preparing such information, and the delay involved in doing so (Cleary v Australian Co-operative Foods Ltd (Nos 2 and 3) [1999] NSWSC 991; (1999) 32 ACSR 701, 719). …
The question of time and cost that his Honour raises goes to the second problem: that the reason why the documents, studies and analysis did not exist was because, as I understand it, the committee of management could not raise the funds to pay the consultants to prepare the reports, do the studies and undertake the analysis or take any significant step in respect of the development without a special resolution. It is difficult to maintain that the committee did not take "reasonable steps" in the circumstances. In fact, they did take steps to obtain the necessary information to inform the project by removing this impediment: hence the attempt, successful as it turned out, to revise the constitution and enable the committee of management to progress the development with a simple majority of its members.

[31]

Orders

For these reasons, I make the following orders: 1. Order pursuant to section 1322(4)(a) of the Corporations Act 2001 (Cth), as applied by sections 96 and 97 of the Associations Incorporation Act 2009 (NSW) and regulation 18 of the Associations Incorporation Regulation 2016 (NSW): 1. that the conduct of the special general meeting of the first defendant held on 13 November 2018 (the November SGM) is not invalid by reason of any contravention of any provision of the Corporations Act, the Associations Incorporation Act or the Association's constitution. 2. that the resolutions passed at the November SGM to amend the Association's constitution and/or adopt a new constitution is not invalid by reason of any contravention of any provision of the Corporations Act, Associations Incorporation Act or the Association's constitution; 3. that the lodging of the amended constitution with the second defendant for registration is not invalid by reason of any contravention of a provision of the Corporations Act, Associations Incorporation Act or the Association's constitution; and 4. that the endorsement of persons to the office of Secretary and Treasurer of the Association at a meeting of the Committee of Management of the Association on 18 February 2019 are not invalid by reason of any contravention of a provision of the Corporations Act, Associations Incorporation Act or the Association's constitution; 5. that any acts, matters or things purporting to have been done by the Association, or by persons acting on the Association's behalf, in the period from 13 November 2018 to date are not invalid by reason of any contravention of a provision of the Corporations Act, Associations Incorporation Act or the Association's constitution. 1. Dismiss the Amended Originating Process filed on 8 March 2019. 2. Order the plaintiffs to pay the defendants' costs of the proceedings. 3. Discharge Order 1 made by Lindsay J on 25 January 2019 and release the first defendant from the undertaking noted in Order 2 on 25 January 2019. 4. Release the first defendant from the undertaking noted in Order 1(a) made by Rees J on 20 February 2019. 5. Grant liberty to the parties within 14 days to notify any correction or amendment sought to be made to these orders or any variation sought to Order 3.