In the matter of Order of AHEPA NSW Incorporated [2018] NSWSC 458

Supreme Court of NSW|2018-03-21|Before: Black J

Solicitors: Kreisson (Plaintiff) Levitt Robinson (Second and Third Defendants) File Number(s): 2016/380711

Judgment

By Originating Process filed on 19 December 2016, the Plaintiff, the Order of AHEPA NSW Inc ("AHEPA NSW"), applied for declaratory relief in respect of irregularities that arose out of attempts to change its constitution at general meetings in 2005, 2007, 2010 and 2015. AHEPA NSW is an incorporated association governed by the Associations Incorporation Act 2009 (NSW) ("2009 Act"). The First Defendant, the Commissioner for NSW Fair Trading, has filed a submitting appearance. On 4 April 2017, I made representative orders in the proceedings, appointing the Second and Third Defendants, Ms Louisa Melas and Ms Maria Alexandrou, jointly to represent themselves and all persons who assert that they are or were members of AHEPA NSW and that resolutions passed at general meetings of the Plaintiff in 2005, 2007, 2010 and/ or 2015, or acts done in reliance on those resolutions, were invalid; and appointing AHEPA NSW to represent itself and all persons who assert that they are or were members of the Plaintiff and who were not represented by Ms Melas and Ms Alexandrou. Ms Melas and Ms Alexandrou have taken an active role in the proceedings and in the compromise now reached between interested parties.

Orders that 2005, 2007 and 2010 resolutions and consequential acts are not invalid

AHEPA NSW relies on s 1322(4)(a) of the Corporations Act 2001 (Cth) to support the relief sought in order 1 of the proposed consent orders, to the effect that its 2005, 2007 and 2010 resolutions and consequential acts are not invalid. I will first set out the nature of the resolutions and the irregularities in their passage before turning to the relief that is sought.
By way of background to the relevant amendments, AHEPA NSW was formed by members of the Order of AHEPA in 1993 as an incorporated association under the Associations Incorporation Act 1984 (NSW) ("1984 Act") (Kallimanis [39], Ex P1 tab 7). The Order of AHEPA is a voluntary organisation and has had a presence in NSW since approximately 1934 (Kallimanis [12]). Members of the Order of AHEPA must be members of a Chapter, which have been formed and maintained in NSW since approximately 1953 and are grouped together in entities at State and Territory level called Lodges (Kallimanis [13], [16]; Antonakos [10], [13], [15]-[17]).
AHEPA NSW has been registered under the 2009 Act since it took effect from 1 July 2010 (Sch 4 item 3 of the 2009 Act, Ex P1 tab 7). Schedule 4 item 11(b) of the 2009 Act provides that "anything done under a provision of the 1984 Act for which there is a corresponding provision in this Act… is taken to have been done under the corresponding provision of this Act".
The constitution of AHEPA NSW, as lodged with the then Office of Fair Trading in 2003, is the "Order of AHEPA NSW Incorporated Rules, Revised 2003" ("2003 Rules") (Kallimanis [51], Ex P1, tab 11) and Part II of the 2003 Rules deals with membership of AHEPA NSW. AHEPA NSW has treated cl 3(1) of the 2003 Rules (as purportedly amended over the relevant period) as the basis for determining the identity of its members (Kallimanis [54], [68]-[69], [91]; Antonakos [55], [64]). That clause would presently provide (if all amendments were effective) that: "Any person who has: (a) been a financial member of the unincorporated association on the 30th 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 [AHEPA NSW], 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."
Mr Hollo and Ms Winnett 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". Mr Hollo and Ms Winnett 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.
Part III of the 2003 Rules deals with the committee charged with managing the affairs of AHEPA NSW, known as the "Committee of Management". Clauses 14-15 provide for the members of the Committee of Management to consist of the "Grand President" (being the President of the "Grand Lodge"), who becomes the President of AHEPA NSW, the "District President" (being the President of the "District Lodge"), who becomes the Vice President of AHEPA NSW and ordinary members drawn from the various Chapters.
Turning now to the matters in issue in the proceedings, resolutions amending AHEPA NSW's constitution, and particularly the conditions for membership of AHEPA NSW and the composition of the Committee of Management, were purportedly passed at annual general meetings of AHEPA NSW on 23 November 2005 ("2005 AGM"), 29 November 2007 ("2007 AGM") and 22 January 2010 ("2009 AGM"). AHEPA NSW accepts that the passage of these resolutions, and its conduct subsequent to passing those resolutions, were affected by several irregularities to which I refer below, and submits that those irregularities amount to "contravention[s]" of the 2009 Act or of AHEPA NSW's constitution which may be the subject of orders under ss 1322(4)(a) and (d) of the Corporations Act as applied by the 2009 Act.
At the 2005 AGM, the members of AHEPA NSW purported to pass an amendments to its constitution by special resolution (Kallimanis [62], Ex P1, tab 13) with effect that cl 3(1) be changed to take the form set out in paragraph 8 above, excluding the words in the proviso set out in that paragraph. The affidavit evidence led by AHEPA NSW is to the effect that this amendment was intended to address the Committee of Management's concern that the former clause was not effective, because it required a "3 year waiting period" before a financial member of a Chapter could become a voting member of AHEPA NSW which was thought to be too long (Kallimanis [55]-[59]). A resolution was also purportedly passed at that AGM (Kallimanis [64], Ex P1, tab 13) with the effect that "Part 15 item 4" (which is a reference to cl 15(4) of the constitution) "becomes Part 15 item 4(a)", and that an additional sub-clause be added as "Part 15 item (4b)" in the following terms: "that the vice presidents of the lodges (Grand and District Lodges of NSW) of the unincorporated association to be alternate members for the AHEPA NSW Inc." The evidence led by AHEPA NSW indicates that cl 15(4) of the 2003 Rules previously provided for each ordinary member of the Committee of Management to be represented at meetings by an "alternate" where necessary, but made no similar provision in respect of the Grand President and District President, and that this amendment would permit the Vice Presidents of the Grand and District Lodges to attend such meetings as "alternates" for the Grand President and District President respectively (Kallimanis [64]).
AHEPA NSW accepts that several irregularities may have occurred in respect of the 2005 resolutions. These include a potential non-compliance with s 5(1)(a) of the 1984 Act (taken to have occurred under s 39(1)-(2) of the 2009 Act), by Sch 4 item 11(b) of the 2009 Act) and with cll 3(1), 31 and 36 of the 2003 Rules, where there is no evidence that notice was sent out setting out terms of the resolutions proposed to be passed as special resolutions, and it is unclear whether all of the persons voting on the resolutions were members of AHEPA NSW under the 2003 Rules. These also include non-compliance with s 20 of the 1984 Act (taken to have occurred under ss 10, 12(2)(b) and 14(1) of the 2009 Act, by Sch 4 item 11(b) of the 2009 Act), where notice of alteration of the rules was not lodged with the then office of Fair Trading. AHEPA NSW also accepts that there is a possible irregularity in its conduct between 2005 and 2007, by reason of a non-compliance with both the 2003 Rules and s 20(3) of the 1984 Act (taken to have occurred under s 14(1) of the 2009 Act, by Sch 4 item 11(b) of the 2009 Act), so far as AHEPA NSW acted in that period in accordance with the constitutional provisions as purportedly amended in 2005.
At the 2007 AGM, the members of AHEPA NSW then purported to pass a further amendment to its constitution by special resolution (Kallimanis [79], Ex P1, tab 26) with effect that cl 14(1)(b) of the constitution be changed to read: "Such number of ordinary members as corresponds to the number of Active Chapters of the unincorporated Association." 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]).
AHEPA NSW accepts that several irregularities may have occurred in respect of the 2007 resolution. These include a non-compliance with cl 3(1) of the 2003 Rules, where AHEPA NSW acted on that clause as purportedly amended in 2005, an irregularity with the special resolution purportedly passed at that meeting so far as the notice sent to members (Ex A1 tab 25) did not set out the resolution as ultimately passed at the 2007 AGM, nor state that it was proposed to be passed as a special resolution; and the fact that notice of alteration of rules was not lodged with the then office of Fair Trading. AHEPA NSW also accepts that its conduct between 2007 and 2010 may have involved non-compliance with both the 2003 Rules and s 20(3) of the 1984 Act (taken to have occurred under s 14(1) of the 2009 Act, by Sch 4 item 11(b) of the 2009 Act) because AHEPA NSW acted in that period in accordance with the constitutional provisions as purportedly amended in 2005 and 2007.
At the 2009 AGM, the members of AHEPA NSW purported to pass a further amendment to its constitution by special resolution (Kallimanis [86]-[89], Ex P1, tab 31) with effect that cl 3 of the constitution "is amended by replacing the last paragraph with the following": "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."
Mr Hollo and Ms Winnett 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 hat change by deleting the proviso as originally set out in the 2003 Rules (Ex P1, tab 28), 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 (Kallimanis [83]-[89]), thereby reinstating the proviso in an altered form.
AHEPA NSW accepts that several irregularities may have occurred in respect of the 2010 resolution. These include non-compliance with cl 3(1) of the 2003 Rules, since AHEPA NSW acted on cl 3(1) as purportedly amended in 2005. The notice sent to members for that meeting (Ex P1, tab 30) also did not set out the resolution as ultimately passed at the 2009 AGM, nor state that it was proposed to be passed as a special resolution, and notice of alteration of rules was not lodged with NSW Fair Trading. AHEPA also accepts that there may have been irregularities in acts done since 2010, by reason of non-compliance with the 2003 Rules, the 1984 Act and the 2009 Act, because AHEPA NSW acted in this period on the constitutional provisions as purportedly amended in 2005, 2007 and 2010.
It is common ground that none of the amendments were registered with NSW Fair Trading so that they did not take effect under the 1984 Act or the 2009 Act. Section 20(3) of the 1984 Act provided that an alteration of an incorporated association's rules has effect when the public officer lodges a prescribed notice with the Director-General of the Department of Fair Trading setting out particulars of the alteration, within 1 month after the passing of the special resolution; and s 14(1) of the 2009 Act provides that a change of constitution registered by the Secretary on application under Pt 2 Div 2 takes effect when it is registered and an application for registration of a constitutional change may be refused if the special resolution was approved by the association more than 28 days before the application under s 12(2)(b) of the 2009 Act. The evidence is that this failure resulted from an oversight on the part of its officers, who were not aware of the requirement, or did not realise that they had any responsibility for implementing it, or otherwise simply neglected to take the necessary action. It appears that AHEPA NSW's Committee of Management became aware of this irregularity in early 2016 (Kallimanis [163]-[164]). AHEPA NSW has conducted its affairs on the basis that the applicable constitutional amendments made by the 2005, 2007 and 2010 resolutions had taken effect (Kallimanis [69], [81]-[82], [91], [164]).

Application of s 1322 of the Corporations Act to invalidities in resolutions

Section 1322 of the Corporations Act relevantly provides that: 1322 Irregularities (1) In this section, unless the contrary intention appears: (a) a reference to a proceeding under this Act is a reference to any proceeding whether a legal proceeding or not; and (b) a reference to a procedural irregularity includes a reference to: … (ii) a defect, irregularity or deficiency of notice or time. … (4) Subject to the following provisions of this section but without limiting the generality of any other provision of this Act, the Court may, on application by any interested person, make all or any of the following orders, either unconditionally or subject to such conditions as the Court imposes: (a) an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under this Act or in relation to a corporation is not invalid by reason of any contravention of a provision of this Act or a provision of the constitution of a corporation; … (d) an order extending the period for doing any act, matter or thing or instituting or taking any proceeding under this Act or in relation to a corporation (including an order extending a period where the period concerned ended before the application for the order was made) or abridging the period for doing such an act, matter or thing or instituting or taking such a proceeding; and may make such consequential or ancillary orders as the Court thinks fit. … (6) The Court must not make an order under this section unless it is satisfied: (a) in the case of an order referred to in paragraph (4)(a): (i) that the act, matter or thing, or the proceeding, referred to in that paragraph is essentially of a procedural nature; (ii) that the person or persons concerned in or party to the contravention or failure acted honestly; or (iii) that it is just and equitable that the order be made; and … (c) in every case - that no substantial injustice has been or is likely to be caused to any person.
This section applies to associations governed by the 2009 Act by reason of ss 96 and 97 of the 2009 Act, which provide for the regulations to declare that certain matters are applied corporations legislation matters within Pt 3 of the Corporations (Ancillary Provisions) Act 2001 (NSW). Regulation 18 of the Associations Incorporation Regulation 2016 (NSW), which declares matters relating to associations to be applied corporations legislation matters in relation to ss 1322(1)-(3A) and (4)-(6) of the Corporations Act, subject to certain modifications, relevantly that a reference to "this Act" in s 1322 is to be read as including a reference to the 2009 Act and a reference to a "corporation" is "to be read as a reference to an association". The operation of a predecessor of that regulation, with similar effect, was noted in Ahmed v Chowdhury [2012] NSWSC 1452 at [87]-[93] and Cambodian Buddhist Society of NSW v Meng Eang Thai [2017] NSWSC 1433 ("Cambodian Buddhist Society") at [59]-[60].
Mr Hollo and Ms Winnett draw attention to the remedial purpose of s 1322(4)(a) of the Corporations Act and the broad interpretation that should be given to that section. The case law has recognised that that section is a remedial provision to be applied with liberality, and reflects a broad legislative policy that the law should not inflict unnecessary liability or inconvenience or invalidate transactions because of non-compliance with its requirements, where such non-compliance is the product of honesty or inadvertence and where the Court can avoid its effects without prejudice to third parties or the public interest in compliance with the law, and that the Court will have regard to the purposes of the Corporations Act, the interests of all affected parties and the public interest in exercising its powers under the section: Winpar Holdings Ltd v Goldfields Kalgoorlie Ltd [2001] NSWCA 427; (2001) 166 FLR 144; 40 ACSR 221; Re Wave Capital Ltd [2003] FCA 969; (2003) 47 ACSR 418.
Mr Hollo and Ms Winnett also refer to Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 at [39], where French CJ observed that: "Corporations, in contemporary Australian society, serve the purposes of enterprises, large and small, owned and operated by men and women, some of whom are sophisticated, knowledgeable and well-advised on matters of corporate governance and some, perhaps many, of whom are not. Section 1322(4) and related provisions reflect a long-standing legislative recognition that mistakes will happen in corporate governance and that it is not in the public interest that the validity of decisions made in relation to corporations be unduly vulnerable to innocent errors which may be corrected without substantial injustice to third parties. In accordance with its evident purpose, s 1322(4)(a) is to be construed broadly and applied pragmatically, principally by reference to considerations of substance rather than those of form." Hayne, Crennan and Kiefel JJ also there observed (at 55) that the power given to the Court under that section is not to be hedged about by any implied limitation and Gageler J referred at [60] with apparent approval to the Court of Appeal's observation in that case that the section is "to be construed with all the liberality that its language permits." That view may be reinforced by the possibility that greater informality may affect the administration of associations registered under the 2009 Act: Ahmed v Chowdhury above at [233]. Those principles were also applied in respect of an association incorporated under the 2009 Act in Cambodian Buddhist Society above at [61].
Mr Hollo and Ms Winnett also submit, and I accept, that, consistent with that remedial purpose, the word "contravention" in s 1322(4)(a) of the Corporations Act should be given the broadest available construction and extends to non‑compliance with procedural provisions that are not framed in terms of obligation or prohibition, and exercise of a power that a person does not have: Weinstock v Beck above at [41]-[42] (French CJ), [53]-[56] (Hayne, Crennan and Kiefel JJ), [62]-[63] (Gageler J). Mr Hollo and Ms Winnett also recognise that s 1322(4)(a) does not operate to authorise the making of an order declaring an impugned act, matter or thing to be "valid"; that the Court may determine that such an act is "not invalid" by reason of a contravention of an applicable statutory provision or rule of the relevant body; and "[t]he effect of a declaration under the provision is limited to overcoming invalidity flowing from a particular contravention or contraventions": Weinstock v Beck above at [40] (French CJ), at [65] (Gageler J).
Mr Hollo and Ms Winnett also point out, uncontroversially, that the conditions set out in s 1322(6)(a)(i)-(iii) are not cumulative, and satisfaction of any one of them will meet the requirements of s 1322(6)(a): Gosford Christian School Ltd v Totonjian [2006] NSWSC 725; (2006) 201 FLR 424 at [80]. AHEPA NSW may therefore support its claim for relief on the basis that one of the three conditions in s 1322(6)(a) (that the matter is essentially of a procedural nature, the persons concerned acted honesty, or it is just and equitable that the order be made) is satisfied and that no substantial injustice has been or is likely to be caused to any person (s 1322(6)(c)). Whether there is "substantial injustice" for the purposes of s 1322(6)(c) involves a weighing of the prejudice if the order is made against the prejudice suffered by, relevantly, other members of the association if it is not made: Re Compaction Systems Pty Ltd & the Companies Act [1976] 2 NSWLR 477 at 493; Gangemi v Osborne [2009] VSCA 297. A meeting may be validated under this section, although notice of that meeting was not properly given, if that failure does not cause substantial injustice to any person: Holmes v Life Funds of Australia Ltd [1971] 1 NSWLR 860. The onus is on AHEPA NSW, which seeks to invoke the operation of the section, to establish that no substantial injustice has been or is likely to be caused to any person: Elderslie Finance Corporation Ltd v Australian Securities Commission (1993) 11 ACSR 157 at 160.
Mr Hollo and Ms Winnett submit that the Court should exercise its discretion to grant the relief sought in this order for several reasons. They submit that the purported passage of the 2005, 2007 and 2010 resolutions, and the non-compliance with AHEPA NSW's rules and various statutory provisions as described above, constitute "contraventions" of the 2009 Act and provisions of AHEPA NSW's constitution, and the Court has power under s 1322(4)(a) to declare that the various acts, matters or things described in order 1 of the proposed consent orders are not invalid by reason of those contraventions. They recognise that, in Rana v Survery (No 2) [2012] NSWSC 905 at [38], Pembroke J observed that s 1322 of the Corporations Act "simply does not apply to the 1984 Act" and is "available in circumstances where the 2009 Act applies but not where the 1984 Act applies". They nonetheless submit that the validation mechanism in s 1322(4) is available in respect of the irregularities described above even to the extent that they occurred before the 2009 Act commenced, because his Honour's observation concerned s 1322(2) of the Corporations Act, which requires the existence of a "proceeding under this Act".
First, Mr Hollo and Ms Winnett submit, and I accept, that s 1322(4)(a) of the Corporations Act is in broader terms and the relevant acts, here, at least are in relation to the relevant association, AHEPA NSW. This is sufficient basis to establish jurisdiction under that paragraph, as applied by the 2009 Act. Second, Mr Hollo and Ms Winnett submit that the effect of Sch 4 item 11(b) of the 2009 Act is that anything taking place under the 1984 Act is deemed to have occurred under the corresponding provision of the 2009 Act, and the particular contraventions of the 1984 Act described in the table above can also be validated on this basis. It is not necessary to determine whether that second basis of jurisdiction is also established, where the first basis of jurisdiction is established.
Mr Hollo and Ms Winnett submit that at least one of the three conditions in s 1322(6)(a) is established. They submit, although it is not necessary to decide, that the various irregularities are largely of a procedural nature and within the scope of s 1322(6)(a)(i) of the Corporations Act. They also submit, and I accept, that the various members of AHEPA NSW and of the Committee of Management, involved in convening the relevant meetings, procuring the passage of the various resolutions, failing to comply with the registration requirements, and then erroneously acting as if the purported constitutional amendments had taken effect, acted honestly within the scope of s 1322(6)(a)(ii) of the Corporations Act (Kallimanis [69]-[70], [81]-[82], [91], [163]-[164]; George Lianos [19], [22], [26]; Theodore Lianos [27]-[30], [37]-[39]; Antonakos [52]-[53], [64]. They point out that there is no evidence before the Court that any such person acted dishonestly and I add that no submission was put to that effect. That is sufficient to satisfy the requirements of s 1322(6)(a)(ii), of the Act as applied by the 2009 Act.
Mr Hollo and Ms Winnett also submit, and I accept, that it is just and equitable that these orders be made under s 1322(6)(a)(iii) of the Corporations Act. They point out that AHEPA NSW has, apparently inadvertently acted upon the purported constitutional changes for several years (George Lianos [27]; Theodore Lianos [41]; Antonakos [64]) (although, I interpolate, it appears to have become aware of the issues by early 2016) and has not applied the original cl 3(1) of the 2003 Rules since at least 2005, after it sought to amend that clause in 2005 to address the perceived difficulties in identifying its membership arising from that clause (Kallimanis [57]-[59]). They also point out that the earlier form of that clause may well be incapable of application, so far as it may require the identification of people who have been financial members for three years prior to the "incorporation" of the "unincorporated association" and differs significantly from the manner in which AHEPA NSW has identified its membership for over 12 years. Ms Melas and Ms Alexandrou, who represent any person who might have an interest in these issues other than the persons represented by AHEPA NSW, support the relief sought. These matters seem to me to establish that it is just and equitable to grant the relief sought.
Mr Hollo and Ms Winnett submit, and I also accept, that no substantial injustice has been or is likely to be caused to any person arising out of this relief sought (s 1322(6)(c)). They point out that all the parties with an interest in the dispute agree that the orders should be granted and that relief is part of a consensual resolution of the proceedings.

Order extending time for application to Commissioner for NSW Fair Trading for registration of changes to AHEPA NSW's constitution

Mr Hollo and Ms Winnett recognise that, under the 2009 Act, amendments to an incorporated association's constitution only take effect once they are registered (s 14(1)) and the Commissioner for NSW Fair Trading may refuse an application for registration if the relevant special resolution was approved by the association more than 28 days before the application was made (s 12(2)(b)). The position was materially identical under ss 20(2)-(3) of the 1984 Act. By order 2 of the proposed consent orders, AHEPA NSW seeks an extension of time to enable AHEPA NSW to apply to register the 2005, 2007 and 2010 resolutions with the Commissioner for NSW Fair Trading. They submit, and I accept, that the power in s 1322(4)(d) of the Act may be exercised where the relevant provision does not in terms impose an obligation to take a step within a particular time frame, but instead makes compliance with that timeframe a condition for the validity of some other matter (Re Wave Capital Ltd (2003) 47 ACSR 418 at [30]) and an order of this kind would cause no substantial injustice in the circumstances. I am satisfied that order should be made in the circumstances.

Other orders sought

AHEPA NSW relies on the power to grant consequential or ancillary relief under s 1322(4) to support several other orders that it seeks. Mr Hollo and Ms Winnett submit, and I accept, that s 1322(4) of the Act authorises the Court, inter alia, to make any consequential or ancillary orders that it sees fit and, consistently with the purpose of the provision, the Court also has jurisdiction under s 23 of the Supreme Court Act 1970 (NSW) in this regard. AHEPA NSW and Ms Melas and Ms Alexandrou agree that it is in the best interests of AHEPA NSW and its members for it to apply for registration of the 2005, 2007 and 2010 resolutions and, if that application is successful as regards the 2005 and/ or 2010 amendments to its membership clause, to convene a new special general meeting promptly to consider proposed changes to its Committee of Management. I accept that the Court can make orders to facilitate that process, and I make those orders below. The parties did not press one order which was potentially beyond the scope of the Court's jurisdiction.

Orders

For these reasons, I made the following orders at the conclusion of the hearing on 21 March 2018:
Orders that, pursuant to s 1322(4)(a) of the Corporations Act as applied by ss 96 and 97 of the Associations Incorporation Act 2009 (NSW) (2009 Act) and reg 18 of the Associations Incorporation Regulation 2016 (NSW) (2016 Regulation): (a) The 2005 resolutions are not invalid by reason of any contravention of a provision of the Associations Incorporation Act 1984 (NSW) (1984 Act), the 2009 Act or the Plaintiff's constitution. (b) Acts, matters or things purporting to have been done by the Plaintiff, or by persons acting on the Plaintiff's behalf, between 23 November 2005 and 29 November 2007 are not invalid by reason of any invalidity of the 2005 resolutions, or failure to lodge those resolutions under the 1984 Act, during that period. (c) The 2007 resolution is not invalid by reason of any contravention of the 1984 Act, the 2009 Act or the Plaintiff's constitution. (d) Acts, matters or things purporting to have been done by the Plaintiff, or by persons acting on the Plaintiff's behalf, between 29 November 2007 and 22 January 2010 are not invalid by reason of any invalidity of the 2005 and/ or 2007 resolutions, or failure to lodge those resolutions under the 1984 Act, during that period. (e) The 2010 resolution is not invalid by reason of any contravention of the 1984 Act, the 2009 Act or the Plaintiff's constitution. (f) Acts, matters or things purporting to have been done by the Plaintiff, or by persons acting on the Plaintiff's behalf, in the period 22 January 2010 to date are not invalid by reason of any invalidity of the 2005, 2007 and/ or 2010 resolutions, or failure to lodge or register those resolutions under the 1984 Act or 2009 Act, during that period.
Orders that, pursuant to s 1322(4)(d) of the Corporations Act as applied by ss 96 and 97 of the 2009 Act and reg 18 of the 2016 Regulation, the period for applying to the First Defendant, under ss 10 and 12 and/ or Sch 4 item 11 of the 2009 Act, for registration of the changes of the Plaintiff's constitution as passed by the: (a) 2005 resolutions; (b) 2007 resolutions; and (c) 2010 resolutions, be extended to the period ending 28 days after the date of these orders.
Orders that, within 3 days of the making of these orders, the Plaintiff apply to the First Defendant, under ss 10 and 12 and/ or Sch 4 item 11 of the 2009 Act, for registration of the changes of the Plaintiff's constitution as passed by the 2005, 2007 and 2010 resolutions (Registration Application).
Orders that within 14 days of receipt of the Registration Application, the First Defendant notify the Plaintiff of its decision concerning that application.
Orders that within 14 days of the First Defendant notifying the Plaintiff of its decision to approve and register the 2005 and/or 2010 resolutions, the Plaintiff (through its Committee of Management) send notice of a Special General Meeting (New SGM) by post and email to all of its members under cl 3(1) of the Plaintiff's constitution, which: (a) states the time and place of the New SGM (which is to be held no earlier than 21 days from the date that notice is given under this order, and is otherwise to be held as soon as possible and in the period between 29 April 2018 and 30 June 2018, other than between 3 May 2018 and 20 May 2018 inclusive or between 21 June 2018 and 28 June 2018 inclusive); and (b) states that the following resolutions are intended to be passed as special resolutions: i. That all current members of the Committee of Management be removed, effective from the passing of the special resolution; ii. That six (6) members of the Plaintiff whose names are set out later in this notice be appointed to be members of the Committee of Management, such members being persons: (A) who are not members of the current Committee of Management and were not members of the Committee of Management as at 1 January 2018; and (B) three of whom are members of the 'Grand Lodge'; and (C) the other three of whom have served as a past president of either the 'Grand Lodge' or the 'District Lodge',
Orders that within 14 days of the First Defendant notifying the Plaintiff of its decision to approve and register the 2005 and/or 2010 resolutions, prayers 1(g), 3, 4 and 5 of the Plaintiff's Originating Process be dismissed.
Orders that the Plaintiff is to pay the Second and Third Defendants' reasonably incurred legal costs and expenses of the proceedings (to the extent that those costs and expenses have not already been paid by the Plaintiff) on an indemnity basis, as agreed or assessed (noting that the costs and expenses the subject of Levitt Robinson's invoices dated 28 February 2017 and 3 May 2017 have been agreed and paid by the Plaintiff and are not to be the subject of any assessment).
Orders that orders 3-8 of the orders made by Black J on 4 April 2017 be set aside.
The parties have liberty to apply to the Court on 7 days' notice.
I also noted the terms of an agreement between the parties as to several other matters.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2018

Associations Incorporation Act 1984(NSW)ss 5, 20

(NSW), Associations Incorporation Act 2009(NSW)

Associations Incorporation Regulation 2016(NSW)

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