Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc

On 27 May 2015 I delivered judgment ([2015] NSWSC 638) in respect of proceedings concerning the validity of a special general meeting of the Islamic Association Western Suburbs Inc (“Association”) held on 2 March 2014 by which the Plaintiffs, several members of the Executive Council of the Association, were removed, and the First – Seventh Defendants were purportedly elected as the Executive Council of the Association.

I summarised the outcome of the proceedings at paragraphs 131 – 133 of the Judgment. I observed that a declaration should be made as to the invalidity of the 2 March 2014 meeting and that the current membership of the Executive Council followed from that declaration, at least so far as the matters raised in the proceedings before me were concerned. I noted that the Defendants’ Cross-Claim should be dismissed and the Defendants should pay the Plaintiffs’ costs of the proceedings, as agreed or as assessed. I directed the parties to bring in agreed short minutes to give effect to that order.

The parties substantially agreed the terms of the orders to be made to give effect to the judgment. There was one difference between them as to a proposed order that interlocutory orders previously made on 14 March 2014 (and subsequently continued on later dates), 6 November 2014 and 5 November 2014 be discharged.

The Defendants sought to defer the operation of the the discharge of the interlocutory orders made on 6 November 2014 and 5 December 2014, which dealt with the ongoing provision by the Plaintiffs to the Defendants of records and information and imposed restraints on exercise of powers of the Plaintiffs, until 3 July 2015. The Defendants submitted that those interlocutory orders should continue for that further period in case the Defendants decided to appeal. The Plaintiffs responded that the interlocutory orders should be discharged immediately, on the basis that judgment was delivered on 27 May 2015 and the Defendants have had time to consider their position as to any appeal; the discharge of the orders would not cause irreparable damage even if an appeal was successful; and the Plaintiffs have already had restraints placed upon them during a significant part of the two year period for which they were elected to office, which will expire in late 2015.

It seems to me that the form of order sought by the Defendants amounts, in effect, to a stay of the orders that would follow from my judgment. The principles applicable to an application for a stay were recently summarised by McColl JA in Aquaqueen International Pty Ltd v Titan National Pty Ltd [2015] NSWCA 9 (at [42]-[46]) as follows:

The Defendants have not sought to bring an application for such a stay, or sought to establish the basis for such a stay, whether by reference to the matters going to a seriously arguable case on appeal or the balance of convenience. In making that observation, I say nothing as to whether the Defendants could have established the basis for a stay, had they sought to do so, but only that they have not sought to do so. It seems to me that, absent a stay application and a determination of it on its merits, the Plaintiffs are entitled to the benefit of the judgment in their favour and should not be deprived of that benefit, even for a relatively short period, by framing the orders in a manner that gives effect to a stay of them, where no such stay has been sought and no basis for it has been established.

Accordingly, I make the following orders: