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Singh v Brisbane Sikh Temple (Gurdwara) Inc[2022] QSC 151

Singh v Brisbane Sikh Temple (Gurdwara) Inc[2022] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2022] QSC 151

PARTIES:

GURMEET SINGH

(first applicant)

SATINDER PAL SINGH

(second applicant)

HARMINDER SINGH

(third applicant)

v

BRISBANE SIKH TEMPLE (GURDWARA) INC

(respondent)

FILE NO/S:

BS 10910 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application to appoint receiver

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2022

JUDGE:

Applegarth J

ORDER:

The application to appoint a receiver made in paragraph 2 of the application filed on 17 March 2022 is dismissed.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – INCORPORATED ASSOCIATIONS – MEMBERS – where the decision of the respondent’s management committee to reject 2,151 applications for membership was found to be void and of no effect – where the respondent’s management committee was directed to consider the rejected applications for membership in accordance with the respondent’s Constitution and according to law – where the respondent’s management committee reconsidered the rejected applications for membership – where the applicants alleged a number of defects in the reconsideration process – whether the Court should appoint a receiver to the respondent for the purposes of undertaking a further reconsideration process, convening a general meeting to vote on the election of the respondent’s management committee, and making decisions about the process and procedures to be adopted for the general meeting – whether such an appointment which will cost the respondent in excess of $200,000 is just and convenient – whether such an appointment is necessary when applicants for membership can appeal the rejection of their applications to a general meeting

Associations Incorporation Act 1981 (Qld), s 72, s 73

Civil Proceedings Act 2011 (Qld), s 12

Uniform Civil Procedure Rules 1999 (Qld)

Fordyce v Ryan [2017] 2 Qd R 240; [2016] QSC 307, cited

Lamers v Arvind Pty Ltd [No 2] [2019] WASC 491, cited

McLean v McKinlay [2004] WASC 2, cited

National Australian Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386, cited

Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408, cited

Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2021] QSC 290, cited

Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2022] QSC 17, cited

COUNSEL:

L Copley for the applicants

G Coveney and R Tooth for the respondent

SOLICITORS:

Agnew Litigation & HR Pty Ltd for the applicants

Enyo Lawyers for the respondent

  1. [1]
    The respondent is incorporated under the Associations Incorporation Act 1981 (Qld).  The applicants are members of the respondent.
  2. [2]
    Disputes have arisen over the rejection by the respondent’s management committee of applications for membership of the respondent.  On 24 September 2021 Jackson J restrained the holding of an annual general meeting arising from decisions made by the management committee on 30 August 2021 to reject a large number of applications for membership.[1]
  3. [3]
    On 25 February 2022 Kelly J declared that the management committee’s decision dated 30 August 2021 to reject 2,151 applications for membership to be void and of no effect.[2]  His Honour directed the management committee to consider the rejected applications in accordance with the respondent’s Constitution and according to law.
  4. [4]
    In the first few weeks of March 2022 the parties were not able to agree a mechanism for the rejected applications to be assessed, so the applicants filed an application.  The respondent filed a cross application.
  5. [5]
    On 4 April 2022 Jackson J made consent orders which required the management committee to use its best endeavours and take all reasonable steps to cause the respondent to comply with the orders made by Kelly J on 25 February 2022.  The consent orders created a timetable for:
    1. (a)
      the management committee to reconsider in accordance with the Constitution and according to law the 2,151 applications previously rejected by it on 30 August 2021;
    2. (b)
      the management committee to hold a meeting which would formally vote to accept or reject the reconsidered rejected applications; and
    3. (c)
      the respondent to take reasonable steps to notify each successful applicant that their application had been accepted and to notify each unsuccessful applicant that their application had been rejected.
  6. [6]
    The consent orders also provided a process for each accepted applicant to pay the $100 application fee if the fee had not already been paid.  If the accepted applicant did not pay the membership application fee within the specified time the respondent was able to reject the accepted applicant’s membership application.
  7. [7]
    The consent orders further provided for the timing of nominations from eligible members who wished to nominate for the management committee and for the convening of a general meeting of the members of the respondent within 30 days of the close of nominations. 

The reconsideration process

  1. [8]
    A large volume of affidavit material was read before me about the reconsideration process.  The applicants allege various irregularities in the process.  The respondent rejects these allegations.  It is sufficient for present purposes to outline the outcome of the reconsideration process and the substance of the complaints.  More than 700 applicants were approved for membership as ordinary members and already had paid the membership fee.  A further 565 applicants were initially approved for membership, but, according to the respondent, failed to pay the membership fee following a request to do so and had their applications rejected at management committee meetings in May 2022.
  2. [9]
    Next, 880 applications were rejected as having failed to comply with requirements of clauses 5 and 6 of the Constitution.  The management committee’s reasons included the following:
    1. (a)
      the application did not contain the full information prescribed by the membership form;
    2. (b)
      the membership form was either unsigned or the signature did not appear to match the signature on the accompanying statutory declaration; or
    3. (c)
      no statutory declaration was provided as part of the application.
  3. [10]
    The applicants allege that the management committee failed to notify a large number of the rejected applicants as to whether their application was accepted or rejected and failed to properly direct about payment.  The applicants also dispute that the 880 applicants who were rejected had failed to provide the required information, signature or statutory declaration, as alleged by the respondent.  The applicants’ affidavit material includes information obtained from a survey of applicants for membership as well as direct evidence about the submission of the required application for membership and supporting statutory declaration.  In response, the secretary of the respondent explains the basis upon which the applications were assessed and reiterates that, contrary to the applicants’ evidence, statutory declaration forms were not lodged with the relevant applications.
  4. [11]
    It is unnecessary to elaborate about these factual disputes.  I am not invited to make, and I am not in a position to make, findings about whether, for example, the required statutory declaration was submitted, as required, and was lost at some stage in the complicated process of determining so many applications. 
  5. [12]
    Similarly, I am not invited to resolve, and I am not in a position to resolve, why 565 applicants, whose applications were initially approved for membership, failed to pay.  Possibilities abound.  An address appearing on the application form may be out of date.  Communications may have been sent to the wrong address or email address.  Some applicants may have lost interest in becoming members and may not want to pay $100 to an organisation which spends a large amount of its income on lawyers.

The application to appoint a receiver

  1. [13]
    Rather than seek a final hearing at which findings are made about the alleged irregularities, the applicants seek an order for the appointment of a receiver to the respondent to:
    1. (a)
      reconsider the rejected applications, approve or reject them in accordance with the respondent’s Constitution and according to law, and settle the register of members;
    2. (b)
      convene a general meeting to vote on the election of the management committee; and
    3. (c)
      make all decisions about the process and procedures to be adopted for the general meeting.
  2. [14]
    The receiver would have all the rights and powers of the respondent to manage its assets.  Under the proposed order, the reasonable costs and expenses incurred by the receiver and the receiver’s reasonable remuneration would be paid from the assets of the respondent.
  3. [15]
    The applicants submit that the appointment of a receiver is “just and convenient” to settle the membership and to convene a general meeting so that an election, which is now 13 months overdue, can be held.  They submit that is just and convenient for a receiver to be appointed for the stated purposes so that the applications for memberships can be properly considered and those entitled to be a member can vote on who should comprise the management committee.  According to the applicants, the membership of the respondent has been unsettled for too long and the only method to ensure that the management committee is properly representative is for an independent person to be appointed to assess the membership applications, convene a meeting and then hand control to an elected management committee.
  4. [16]
    The applicants accept that the appointment of a receiver is a remedy to be exercised with the utmost care and caution, but submit that there is no other appropriate remedy in the circumstances.
  5. [17]
    The respondent contests these matters and points to the fact that no application has been brought to have the decisions made as a result of the reconsideration process declared void.  Next, it submits that it is not appropriate to make final findings on disputed questions of fact on an interlocutory application of this type.
  6. [18]
    The respondent submits that the applicants are attempting to bypass the need to bring proceedings to declare the relevant decisions void.  Claims that the management committee is acting contrary to the Constitution are disputed and it would be inappropriate to effectively determine those matters by appointing a receiver on an interlocutory application.  It is insufficient simply to raise a dispute about the reconsideration process.  The appointment of a receiver, according to the respondent, would, in substance, give judgment on an interlocutory basis without first even seeking relief in the form of a declaration that the management committee’s decisions following the reconsideration process are void.
  7. [19]
    The respondent submits that there is no necessity for the appointment.  This is not a case in which there is a dispute over property or a risk of property being dissipated.
  8. [20]
    Another ground in opposing the appointment of a receiver is that aggrieved applicants for membership have the right to appeal the management committee’s decision to a general meeting.  The Constitution provides for such an appeal within two months and no rejected applicant for membership has lodged an appeal.  On this basis, the respondent submits that a receiver should not be appointed because there is an alternative remedy available to the affected persons.

The exercise of the power to appoint a receiver

  1. [21]
    Before the jurisdiction to appoint a receiver is exercised, the Court must be satisfied that the case in favour of appointment is strong.[3]
  2. [22]
    The appointment of a receiver is a drastic remedy to be exercised with care and great caution.[4]
  3. [23]
    Consistent with this approach, it has been said that “no court will make such an order unless convinced of its necessity”.[5]
  4. [24]
    This requires consideration of the adequacy and effectiveness of other remedies.  The exercise of the jurisdiction to appoint a receiver rests upon the principle that no other remedy exists or is appropriate to protect the relevant right or interest.  In such a case, the Court should intervene by the special remedy of a receiver.[6]
  5. [25]
    The application filed on 17 March 2022 sought the appointment of a receiver pursuant to sections 72 and 73 of the Associations Incorporation Act 1981 (Qld).  Reference was made in the applicants’ submissions to the Court’s power to appoint a receiver either under its inherent jurisdiction or under section 12 of Civil Proceedings Act 2011 (Qld).  Section 12 provides that this Court “may, at any stage of a proceeding, make an interlocutory order appointing a receiver if it considers it just or convenient”.  The statutory power is recognised as interlocutory and not final in character.[7] 
  6. [26]
    A receiver is appointed for a purpose.  Often it is to protect property that is in dispute or to facilitate the sale of property for a particular purpose or for the winding up of a partnership.[8]  The learned authors of Meagher, Gummow and Lehane’s Equity Doctrines and Remedies observe that the appointment of a receiver by the Court “is necessarily an interim measure”.[9]  
  7. [27]
    This is not a case in which a receiver is to be appointed to take control of property that is in dispute or to realise assets or to carry on a business.  The appointment of a receiver is sought so that the membership list can be settled, and an election can be held for the management committee on the basis of decisions made by the receiver in relation to applications that were rejected by the management committee in August 2021.  The receiver, rather than the management committee, would decide to accept or reject the applications in accordance with the respondent’s Constitution and according to law.
  8. [28]
    It is difficult to conceive of such an appointment as an interlocutory order.  It is unlike a case in which a receiver is appointed pending the resolution of a dispute concerning the constitution of a partnership or which groups are the properly constituted management committee of an organisation.  There is no substantive proceeding by which the applicants seek to set aside decisions made by the management committee as a result of the reconsideration process ordered by Jackson J on 4 April 2022.  For example, the applicants do not apply for final orders to the effect that such decisions are void and of no effect on one of limited grounds that such a decision is open to challenge, as identified by Kelly J in the judgment delivered on 25 February 2022.
  9. [29]
    The applicants point to cases in which a receiver has been appointed for the primary purpose of resolving a dispute within an organisation, and, at the same time, preserving the organisation’s property.  Reliance is placed upon the following passages in the decision in McLean v McKinlay[10]:

“The appointment of a receiver is necessarily an interim measure. In short, the object of the appointment of a receiver is to protect something which may turn out to belong to another: Clydesdale v McManus (1934) 36 WALR 89 per Northmore CJ, at 90. As the authors of Meagher, Gummow & Lehane observed at 923:

‘… one may talk loosely of a receiver of a company, but unless that means receiver of the property (or some of it) of a company the phrase is not only loose but meaningless.’

However, the protection of property, although a necessary part of the remedy, need not be the primary motivation for the appointment of a receiver. The case of Duffy v Super Centre Development Corp Ltd [1967] 1 NSWR 382 is an example of the appointment of a receiver/manager for the primary purpose of resolving a dispute within an organisation, whilst at the same time preserving the organisation’s property.

The case, which was an action by minority shareholders for a court-appointed receiver under the Companies Act 1961, illustrates the convenience of the remedy pending the resolution of disputes between shareholders. As Street J observed at 383:

The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company’s assets.”

  1. [30]
    The applicants also rely upon the following passage in Sengthong v Lao Buddhist Society of NSW Incorporated[11]:

“I am satisfied that there is ample jurisdiction for the Court to appoint a receiver of the property of the first defendant with directions designed to facilitate the determination of any disputes about membership of the association, and the conduct of a court-supervised election of a new management committee by the receiver via a report to the Court, upon the adoption of which the Court may entertain questions about whether any orders under s 1322 of the Corporations Act 2001 Cth (adopted and modified by section 96 of the Associations Incorporation Act 2009 and cl 18 of the Associations Incorporation Regulation 2016 NSW) are necessary or desirable. Cf, Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc. [2015] NSWSC 638 at [82] et seq per Black J; Rana v Survery (No 2) [2012] NSWSC 905 at [38] per Pembroke J (affirmed as Rana v Survery [2013] NSWCA 234); Weinstock v Beck (2013) 251 CLR 396 at [10] and [39][40].”

  1. [31]
    The respondent did not invite me to not follow that decision.  Instead, it was said to be distinguishable on the facts.  Sengthong involved an application to wind up an association.  An issue arose about the making of orders affecting the management of the association if a winding up order was not made.  The parties accepted that the Court could make orders designed to regularise the management of the affairs of the association by the conduct of an election by a court-appointed receiver and manager.   
  2. [32]
    I accept that the Court has a jurisdiction to appoint a receiver in an appropriate case to manage the affairs of a dispute-ridden organisation on an interim basis as well as to protect the organisation’s assets.

Application of these principles

  1. [33]
    In Sengthong, there was a dispute between two factions about which “management committee” was entitled to manage the organisation and its assets.  A receiver was appointed for the purpose of conducting an election.  This is not such a case.
  2. [34]
    An intractable dispute of that kind about which of two groups is entitled to act as the organisation’s management committee and to care for the organisation’s assets may necessitate the appointment of a receiver for the specific purpose of exercising the powers of a management committee pending the resolution of that dispute in circumstances in which there is no appropriate alternative to the appointment of a receiver.  In such a case, the resolution of the dispute may depend upon a final hearing at which the Court decides disputed facts and determines which group was validly appointed as the management committee.
  3. [35]
    It is possible to imagine cases in which a receiver will be appointed to perform certain functions that are entrusted by the organisation’s Constitution to a management committee, including the conduct of a court-supervised election of a new management committee.  
  4. [36]
    Consistent with the relevant principles, the appointment of a receiver in such a case will only be made with great caution, after the Court is convinced of its necessity.
  5. [37]
    An interlocutory order pursuant to section 12 of Civil Proceedings Act 2011 (Qld) will only be made in such a case if the Court concludes that it is just or convenient.  The Court will not be convinced of the necessity of such an appointment pending the final hearing of the matter if there is a more appropriate remedy than to appoint a receiver for the purpose of carrying out certain specified functions of the management committee. 
  6. [38]
    The applicants’ material raises serious questions about the correctness of various decisions that were made by the management committee in purported compliance with the 4 April orders.  The applicants do not know, for example, how many applications were rejected on the basis that the application did not contain the full information prescribed by the membership form.  For all they know, the omitted information may have been inconsequential, such as a postcode.  The number of applications that were rejected on the ground that the signature did not appear to match the signature on the statutory declaration is unknown.  The management committee may have made mistakes in concluding that the signatures were different.
  7. [39]
    The number of applicants for membership who insist that they did in fact provide a statutory declaration as part of the application but were found by the management committee to have not done so is unknown.  I have not been asked to resolve disputed questions of fact, such as whether certain applicants did in fact provide a statutory declaration which, despite the respondent’s evidence about its processes, went missing.  It is sufficient for me to record that there appear to be genuine concerns on the part of the applicants and many unsuccessful applicants for membership. 
  8. [40]
    The respondent has replied by affidavit to the contents of the numerous affidavits filed by the applicants.  In a few instances, the secretary of the respondent has recognised that there was an omission and has recommended to the management committee that an application be accepted.  I have not been invited to resolve presently unresolved disputes about the attempt by the management committee to exercise reasonable care and its best endeavours to comply with the orders made by Kelly J on 25 February 2022 and the consent orders made by Jackson J on 4 April 2022.  The applicants’ material raises serious questions in that regard.  There is no proceeding in which they are to be determined at a final hearing.
  9. [41]
    The distinct possibility that the management committee made mistaken judgments on matters such as matching signatures is not sufficient to compel the appointment of a receiver.  One reason is that the Constitution of the respondent entrusts these decisions to the management committee.  Another is that any such erroneous decisions are not alleged in this proceeding to have been made in bad faith, for an improper purpose (such as to exclude applicants who are perceived to be opposed to the management committee), or on a ground which would result after a trial of the facts in a declaration that the relevant decisions are void and of no effect.
  10. [42]
    In summary, this is not a proceeding in which the applicants seek a declaration that the reconsideration decisions are void and of no effect.  The applicants have not brought an application to remedy non-compliance with the 4 April 2022 orders.  Instead, the present application simply seeks to take responsibility for reconsidering rejected applications out of the hands of the management committee and place it in the hands of a receiver.
  11. [43]
    In circumstances in which serious questions have been raised about the management committee’s compliance with the 4 April orders, the course of entrusting the reconsideration process to an independent person in the form of a receiver may appear attractive to some.  That process, however, would be an expensive one.  The insolvency practitioner who has consented to undertake the reconsideration process is expected to incur costs of between $200,000 and $250,000.  The reasonable costs and expenses incurred by the receiver and the receiver’s reasonable remuneration would be paid from the assets of the respondent under the proposed order. 
  12. [44]
    The appointment of a receiver might result in the receiver making different and better decisions.  Such an outcome might be due to persons with the time and expertise of the receiver’s professional staff doing a better job than members of the management committee doing so under significant time pressures and with fewer skills.  That different outcome would come at great cost to the respondent.  The respondent has already incurred substantial legal costs in this and an unrelated matter.  Its resources are better devoted to advancing its objects as set out in its Constitution than on employing an accountancy firm to undertake the reconsideration process.
  13. [45]
    I am not satisfied that is just or convenient for the respondent organisation to bear the significant costs associated with the appointment of a receiver even in circumstances in which an undertaking is offered.
  14. [46]
    Even if I were persuaded that such significant costs should be borne by the respondent in the first instance in order to achieve a better, more professional and more independent reconsideration process, the receiver’s different decisions would not necessarily or practically resolve the issue of whether the management committee’s reconsideration decisions were invalid.  It would not demonstrate that the decisions were made in bad faith or for some other reason that would invalidate them.  
  15. [47]
    I am not satisfied that is just and convenient in the circumstances to take responsibility for conducting the reconsideration process out of the hands of the management committee and place it in the hands of the receiver.  I am not persuaded that it is appropriate to do so in circumstances in which the applicants have not sought, let alone obtained, orders setting aside the decisions made by the management committee in the course of the reconsideration process.  To appoint a receiver to undertake the reconsideration process and thereby take the reconsideration process out of the hands of the management committee, being the body entrusted by the Constitution to consider applications for membership, would be a drastic step. 
  16. [48]
    The Constitution of the association provides in clause 5 the qualifications for membership.  Clause 5 enables a person who qualifies to apply to the association and to do so in a form that is prescribed by the management committee.  Clause 6 provides that the decision of the management committee “shall be final in any matter relating to membership”.
  17. [49]
    To appoint a receiver to decide a matter that clause 6 entrusts to the management committee would lead to an outcome that might be achieved in the event there were a substantive proceeding that resulted in the management committee’s decisions being set aside as invalid and consequential orders for a receiver, rather than the management committee, to determine the applications for membership in accordance with the Constitution and according to law.  It is possible to imagine such an outcome if, after a final hearing, the Court were persuaded that the task could not be entrusted to the management committee for some reason such as bias or incompetence, and it was necessary to appoint a receiver to undertake the task.  One is not at such a point in this matter.  No declaration or orders have been made that would require the Court to consider at that point whether the applications should be considered again by the management committee or considered by some other independent party.              
  18. [50]
    Next, this is not a case of an organisation where, for example, there are two bodies each claiming to be the validly appointed management committee, and it is necessary to appoint a receiver to control the property of the organisation and to preserve it pending resolution of that dispute.  The organisation’s assets may have been depleted by legal costs and cost orders, however, this is not a case in which there is a threat to the organisation’s assets and there is a necessity to appoint a receiver to protect property or to wind up the organisation.     
  19. [51]
    As noted, this is not a case in which an interlocutory application for the appointment of a receiver has been sought pending the final determination of a proceeding.
  20. [52]
    Procedurally speaking, the current issue involves the working out of orders made by Kelly J on 25 February 2022.  After declaring that the management committee’s decisions of 30 August 2021 were void and of no effect, Kelly J directed the management committee to consider the rejected applications “in accordance with the Constitution and according to law”.  When a process for that to occur could not be worked out between the parties an application was brought by the applicants.  It sought in paragraph 2 the appointment of a receiver.  Paragraph 5 of the application sought, in the alternative, for the management committee to undertake a reconsideration process.  It was this alternative reconsideration process that was agreed to by the parties and was reflected in the consent orders made by Jackson J on 4 April 2022. 
  21. [53]
    The fact that a reconsideration process by the management committee, rather than the appointment of a receiver, was agreed to by the parties is significant.  A consent order reflects the agreement of parties and good grounds are required to set it aside.  There is no suggestion that the agreement reflected in the consent order is vitiated by a matter such as fraud.  Instead, the applicants, having become dissatisfied with the reconsideration process, seek to revert to relief that they sought in paragraph 2 of their application without the consent order being set aside.  This is the effect of the order that they now seek.
  22. [54]
    Despite these obstacles and the significant financial costs of appointing a receiver, the proposed course of, in effect, setting aside the orders made on 4 April 2022 might have been appropriate if the appointment of a receiver were necessary.  Such a drastic remedy may have been just and convenient if I had been persuaded that there was no alternative remedy to ensure compliance with the 4 April orders or to cure non-compliance with them.  I am not persuaded of those matters.
  23. [55]
    I am not satisfied that the appointment of a receiver will quell the dispute that is reflected in the factual disputes in the affidavit material about the reconsideration process.  The appointment of a receiver may lead to different decisions being made on the rejected applications.  However, they would not lead, as a matter of course, to the management committee’s decisions being set aside.  Instead, it would mean different and possibly better decisions had been made by a receiver, appointed as an officer of the Court, rather than by the body to which the parties and the Court entrusted the task under the 4 April orders.
  24. [56]
    In some respects, a court-appointed receiver would be reviewing the merits of the reconsideration decisions made by the management committee.  Yet the Court itself does not have jurisdiction to review the merits of those decisions.  It does not sit as an appeal tribunal in relation to those decisions.  It should not entrust reconsideration of the rejected applications to a receiver or any other party unless convinced of the necessity of such an order.
  25. [57]
    I am not inclined to appoint a receiver to, in effect, reconsider the reconsideration decisions which were made by the management committee and which have not been set aside.  I am not convinced of the necessity of such a course.
  26. [58]
    I am not satisfied that it is just or convenient to appoint a receiver and, in effect, set aside the agreement reflected in the 4 April 2022 consent orders.  It is not just or convenient to do so in circumstances in which the applicants have not commenced proceedings to set aside all or some of the decisions made under the reconsideration process.
  27. [59]
    A powerful reason why it is not just or convenient to appoint a receiver to reconsider the rejected applications is that the respondent’s Constitution confers a right of appeal upon a person whose application for membership has been rejected.  The Constitution permits such a person to appeal within two months of receiving a written notification that the application for membership has been rejected.  After receiving notification of an intention to appeal against the rejection of the application for membership the secretary of the respondent is required to convene, within three months, a general meeting to determine the appeal.
  28. [60]
    No applicant for membership has elected to appeal to a general meeting pursuant to clause 10.  No materials have been placed before me to explain why aggrieved applicants for membership have not exercised a right of appeal under clause 10 of the Constitution.  It is not submitted that the costs to the respondent in conducting appeals are likely to exceed the costs of a receiver.  I should not assume that hundreds of persons whose applications were rejected will exercise a right of appeal so as to make the appeal process unworkable.  If a large number of rejected applicants elect to appeal, then the organisation would have to deal fairly and efficiently with that process.
  29. [61]
    The existence of an appeal process to challenge an erroneous rejection of an application for membership is an important reason why I am not satisfied that the appointment of a receiver is necessary.  The appointment of a receiver is a remedy to be exercised with great caution.  The power should not be exercised unless the Court is convinced of its necessity.  An alternative process to remedy alleged erroneous decisions made by the management committee during the reconsideration process exists.  Its existence means that I am not convinced that it is just and convenient, or necessary, to appoint a receiver.

Conclusion

  1. [62]
    The applicants have not sought directions under the Uniform Civil Procedure Rules 1999 (Qld) to enforce compliance with the 4 April orders or to cure alleged non-compliance with them.  They have not commenced a proceeding that seeks as relief declarations that all or some of the management committee’s reconsideration decisions are void or of no effect.  Instead, having consented to the reconsideration process order by Jackson J on 4 April 2022, they now seek to take the reconsideration process out of the hands of the management committee and place it in the hands of a court-appointed receiver. 
  2. [63]
    The appointment of a receiver will cost the respondent at least $200,000. 
  3. [64]
    The applicants have raised serious questions about the correctness or competence of decisions made by the management committee in the course of the reconsideration process.  The respondent’s secretary has responded to many of those allegations, and many factual matters remain in dispute.  A few decisions are accepted by the secretary as having been wrong and are subject to recommendations to be made at the next meeting of the management committee to correct them and to accept an application.  I am not in a position to resolve, and I have not been asked to resolve, the remaining factual matters in dispute that have been the subject of voluminous affidavit evidence.  No proceeding in this Court seeks a final determination of those disputed questions of fact.
  4. [65]
    That the Sikh Temple finds itself in this predicament is a matter of regret.  It has been said that there are factions in the Sikh community.  Given the objectives of the respondent it is unfortunate, to say the least, that its assets and the energies of persons who subscribe to its beliefs have been expended on litigation rather than the objects for which the Temple was established.  My function is not to mediate a dispute.  It is to decide a particular application that has arisen because of the significant dissatisfaction the applicants have over the conduct of the reconsideration process ordered by this Court.
  5. [66]
    The organisation’s Constitution provides an appeal process by which a person whose application for membership has been rejected may appeal to a general meeting.  That appeal process has not been availed of by any of the many 880 persons whose applications were rejected by the management committee on the basis that their applications did not comply with the Constitution’s requirements.  Nor have there been appeals by any of the 565 persons whose applications were initially approved for membership but who, for some reason, did not pay the membership fee and whose applications were then rejected at meetings of the management committee in May.  In circumstances in which appeal rights have not been exercised, I am not convinced that it is appropriate to appoint a receiver.
  6. [67]
    The appointment of a receiver is a drastic remedy to be exercised with great caution.  I am not convinced that such an order is necessary.  I am not persuaded that it is just or convenient to appoint a receiver, given the substantial costs associated with such a process.  I am not persuaded that it is just or convenient to appoint a receiver in circumstances in which no proceeding has been commenced that seeks orders setting aside all or some of the reconsideration decisions and which might resolve the facts that are in dispute before me.  The appointment of a receiver would not determine the validity of the reconsideration decisions made by the management committee pursuant to the 4 April orders.  It would involve different decisions being made without the management committee’s decisions having been set aside.  It also would be a costly exercise.
  7. [68]
    I am not convinced that such an appointment is necessary, particularly where the organisation’s Constitution creates an appeal process to review and rectify rejected applications for membership.
  8. [69]
    I decline to exercise the Court’s jurisdiction to appoint a receiver. I will order:

“The application to appoint a receiver made in paragraph 2 of the application filed on 17 March 2022 is dismissed.”

  1. [70]
    I will hear the parties, if required, on the question of costs.  As presently advised, costs should follow the event or be reserved to await any agreement as to the costs reserved by Jackson J on 4 April 2022. 

Footnotes

[1]Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2021] QSC 290.

[2]Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc [2022] QSC 17.

[3]National Australian Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 539-541.

[4]Ibid.

[5]Lamers v Arvind Pty Ltd [No 2] [2019] WASC 491 at [13].

[6]McLean v McKinlay [2004] WASC 2 at [35].

[7]Fordyce v Ryan [2017] 2 Qd R 240; [2016] QSC 307 at [60].

[8]Ibid.

[9]Fifth Edition at [29-015].

[10][2004] WASC 2 at [36]–[38].

[11][2016] NSWSC 1408 at [194].

Close

Editorial Notes

  • Published Case Name:

    Singh & Ors v Brisbane Sikh Temple (Gurdwara) Inc

  • Shortened Case Name:

    Singh v Brisbane Sikh Temple (Gurdwara) Inc

  • MNC:

    [2022] QSC 151

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    19 Jul 2022

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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