Diener v Registered Association trading as Rooty Hill and District Racing Pigeon Club Inc

1. [1]

   These proceedings were commenced by 17 plaintiffs by filing a statement of claim on 12 December 2018. I will identify the individual plaintiffs when I come to deal with their claims.

2. [2]

   The first defendant is the Rooty Hill and District Racing Pigeon Club Inc (the Club). The Club was incorporated on 25 February 1991 under the Associations Incorporation Act 1984 (NSW) (the 1984 Act). As its name suggests, the Club is a social club whose members participate in the sport of pigeon racing.

3. [3]

   The second to fourth defendants are respectively Phillip Hill, Frank Zimmer and Jason Harris, who are officers of the Club as members of its committee. They are respectively the president, the treasurer and the secretary.

The plaintiffs’ claims

1. [4]

   By their statement of claim, the plaintiffs sought the following relief:

2. [5]

   The plaintiffs alleged that, at all material times, the Club has been an association within the meaning of the Associations Incorporation Act 2009 (NSW) (the 2009 Act), which legislation repealed and replaced the 1984 Act.

3. [6]

   The plaintiffs alleged that, at all material times, they have each been members of the Club and that the second to fourth defendants were its committee members. They alleged that the constitution of the Club was in writing as set out in a document called “Model Rules for the Incorporation of Associations” (the Rules), and that the Rules bound the parties as if they were a contract between them, by reason of s 26 of the 2009 Act.

4. [7]

   The plaintiffs then alleged that the Rules contained the express terms listed in par 6, including, in particular, as alleged in par 6(a): “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 (clause 4)…”

5. [8]

   In pars 7 to 23, the plaintiffs alleged that each plaintiff became a member of the Club (mostly giving the alleged year of joining) and that each plaintiff has not resigned from membership or been expelled.

6. [9]

   In pars 24 to 28, the plaintiffs alleged that, in February 2017, the Club held an annual general meeting at which it purported to elect the second to fourth defendants as its committee. The plaintiffs alleged that the election was invalid because they had not been given notice of the annual general meeting.

7. [10]

   In pars 29 to 31, the plaintiffs alleged that the first plaintiff sought certain documents from the Club by his solicitors’ letters dated 10 July 2017 and 16 October 2017, but that the Club has excluded him from access to the documents.

8. [11]

   By their defence, the defendants did not admit that the plaintiffs had become members of the Club. As will be seen, in most cases, the defendants accepted that the plaintiffs had at one time been members of the Club, but they argued that those plaintiffs who had been members had ceased to be members. The defendants did not plead specific defences to the plaintiffs’ claims, although they did plead in par 16 that the plaintiffs should be denied relief by reason of laches and delay.

9. [12]

   The plaintiffs filed an amended statement of claim on 7 August 2023, which was the last day of the hearing. Although the plaintiffs’ written closing submissions referred to this pleading, I have noted that the Court’s file contains what appears to be an identical amended statement of claim filed in court on 1 December 2022.

10. [13]

    The claim for relief in the amended statement of claim deleted the claim in par 3 of the statement of claim for a declaration that the second to fourth defendants had not been validly elected as officers of the Club. It added prayers 3A and 3B, to the effect that the secretary of the Club should be ordered to create and maintain a register of members, and that each of the plaintiffs be declared to be a member and be added to the register of members, provided that each plaintiff paid any annual membership fees in arrears within 28 days of judgment.

11. [14]

    Prayer 3C sought a declaration that the constitution of the Club registered with Fair Trading NSW in October 2017 is invalid.

12. [15]

    The amended statement of claim deleted the claims of the second, thirteenth and sixteenth plaintiffs. The Court was informed by the plaintiffs’ written closing submissions that the ninth plaintiff was deceased and his claim would not be pursued.

13. [16]

    The plaintiffs pleaded in pars 29A to 29D of the amended statement of claim that the constitution registered by the Club in October 2017 with NSW Fair Trading (the October 2017 Constitution) was invalid because rule 30 of the Rules, being the previous constitution, required that amendments to it must be passed by special resolution at a general meeting of which no less than 21 days written notice of the intention to propose the special resolution had been given, and none of the plaintiffs were given notice of the proposed new constitution.

14. [17]

    It has taken an inordinate amount of time for these proceedings to be determined. They were set down for hearing on the parties’ estimate of the length of the hearing for three days in the period 17 to 19 May 2022, but the hearing was not completed in that time. The same process occurred over the four days between 28 November and 1 December 2022. It was necessary for the Court to set aside 7 August 2023 for the parties to complete the hearing. The plaintiffs delivered written closing submissions on 25 August 2023, the defendants responded on 29 September 2023, and the plaintiffs delivered written submissions in reply on 13 October 2023.

Background

1. [18]

   The evidence suggests that the Club existed in an unincorporated form from at least 1963. On 25 February 1991, the Club was incorporated pursuant to the 1984 Act.

2. [19]

   Relevantly, s 15 of the 1984 Act had the following effect as at the date of incorporation of the Club:

3. [20]

   Consequently, the persons who were members of the Club when it was an unincorporated association became members of the incorporated Club when its certificate of incorporation was granted. This has the effect that the issue of whether individual plaintiffs became members will depend upon whether or not they were members at the date of the incorporation of the Club. If they were, they became members by force of s 15(1)(a) of the 1984 Act. If they purported to join as members afterwards, there will be a question of the significance of the formalities in the Rules concerning the acquisition of membership not having been complied with.

4. [21]

   The evidence established that the seventh plaintiff, Keith Gambell, probably became a member of the unincorporated association in 1977, but he stopped participating in that association’s affairs in about 1985. Consequently, it did not appear that he was still a member of the association under the informal membership rules that it applied at the date of incorporation of the Club. Consequently, it appeared that he did not become a member by force of s 15(1)(a) of the 1984 Act. Accordingly, the plaintiffs conceded at par 86 of their written closing submissions that the Court would find that Mr Gambell was not a member of the Club.

5. [22]

   The Club adopted the "Model Rules" under the 1984 Act. On 7 April 2009, the 2009 Act came into effect. The 2009 Act repealed the 1984 Act, but the effect of clause 3 of Part 2 of Schedule 4 of the 2009 Act was that the Club was taken to have been registered under the 2009 Act, and to have continued as the same legal entity as the former association. The effect of clause 4 of the same transitional provisions was that the rules that governed the Club in its earlier form were taken to be its constitution under the 2009 Act.

6. [23]

   On 13 October 2017, the Club submitted the October 2017 Constitution to NSW Fair Trading for registration. It is not disputed that none of the plaintiffs were given notice of the meeting at which the October 2017 Constitution was approved by a special resolution of the members of the Club then voting. The plaintiffs were not given notice of the general meeting because the committee of the Club did not believe that they were current members.

7. [24]

   The parties conducted the case on the basis that the terms of the October 2017 Constitution are not relevant to the question of whether any of the plaintiffs are members of the Club. If the October 2017 Constitution is valid, then the rules contained in it concerning membership will be operative. I assume that the parties satisfied themselves that the rules concerning membership were materially the same as the equivalent rules in the Rules. If that is so, it is not necessary for the Court to decide what is the operative constitution of the Club before it determine the plaintiffs' membership claims.

8. [25]

   As noted, the Club is a pigeon racing club. The intricacies of what is involved in pigeon racing are not relevant to the determination of these proceedings.

9. [26]

   Mr Hill has been the president of the Club since its inception. Mr Zimmer has been the treasurer for about 15 years. Mr Harris has been the secretary of the Club since 2017. Mr Harris’ evidence was that there are currently somewhere between 8 and 11 members of the Club, aside from the plaintiffs’ claims to be members.

10. [27]

    So far as the evidence goes, the Club has always operated informally according to its own rules as understood by the members. At least in relation to the issue of membership, it has not conformed with the formal requirements of the Rules. The evidence was that Mr Zimmer and Mr Harris had never read the Rules. It is likely that the Club has simply continued to operate in accordance with the informal rules that the members for the time being understood were in force during the period when the Club was an unincorporated association. The fact of incorporation under the 1984 Act, and the formal adoption of the “Model Rules” under that Act, do not appear to have impinged significantly on the way the Club has operated; at least in respect of the issue of membership.

11. [28]

    It is probable that no member of the Club has ever been accepted formally in compliance with the relevant rule in the Rules. I will set out that rule below. The evidence on the subject of membership was a little unclear, but it appears that at each annual general meeting a list of persons attending, who evidently wished to be considered as members of the Club was made, and the relevant membership fees were collected. It may be that persons who were known to wish to continue to be members would be added to the list, if for some practical reason they could not attend the annual general meeting. In order to race pigeons for the Club, a person had to be a financial member. However, a person could be a member and not race pigeons. A member would be considered to be financial provided they paid their membership fees before the first pigeon race of the season. There were complicated rules established by agreement governing the pigeon racing affairs of the Club and its members.

12. [29]

    The Club has been an affiliate of the Central Cumberland Racing Pigeon Federation Inc (the Federation), which required the Club's members to pay a "race fee" to the Federation if they wanted to race in the Federation’s races.

13. [30]

    It has been a long-standing rule of the Club that members can only participate in pigeon races with the Club if they resided within the Club’s residential zone, which was specifically delineated on a map that was displayed in the Club’s clubhouse. This was not a rule included in the Rules. The reason for the rule was not explored in detail, but I understand that it was adopted because racing members’ pigeons would be released from the same place a considerable distance from the pigeons’ lofts at the residences of members, and, so that the pigeons’ flying distances would be relatively fair and equal, it was necessary to ensure that all of the members’ pigeon lofts were relatively closely located.

14. [31]

    In about 2016, the Club sold its clubhouse at 360 Rooty Hill Road North, Plumpton.

15. [32]

    The plaintiffs say that the catalyst for the current proceedings was the introduction of what was called the “100% rule,” and the refusal of the committee to permit new members to join after the Club had sold its premises and until a new clubhouse was set up, unless the applicant for membership applied at a meeting of members and was approved by all members present. The evidence did not make the origins of this supposed rule clear, but it is suggested that it had something to do with the limitations in the facilities available to assist members to engage in pigeon racing after the clubhouse had been sold. To the extent that this “rule” existed, it was informal and not included in the Rules. Whatever may be the underlying truth of the matter, it does appear that the application of the 100% rule caused contention amongst members or would-be members, and this is apparently what has led to these proceedings.

16. [33]

    The issue of membership, according to the plaintiffs, came to a head on 24 February 2017 at a meeting of members of the Club, during which a vote was taken on an application by Mr Gatt to "join" the Club. Mr Gatt is the eleventh plaintiff, and claims in these proceedings to be a valid member of the Club, even though he made an application for membership at the meeting, and his application was rejected, because it was not supported by 100% of the members who were in attendance.

The Rules

1. [34]

   I will now set out those parts of the Rules that have some relevance to the determination of the present dispute, as that is necessary in order to understand some of the issues.

2. [35]

   As already noted, the Rules are the Model Rules For The Incorporation of Associations in Schedule 1 of the regulations made under the 1984 Act.

3. [36]

   Relevantly, the following rules in Part II of the Rules deal with the issue of membership of the Club:

4. [37]

   The calling of general meetings of the Club is dealt with in the Rules in the following terms:

5. [38]

   Alterations to the Rules must be made in accordance with rule 36, which provides as follows:

Non-compliance with the Rules

1. [39]

   The Club has apparently never complied with the Rules in relation to the admission of new members or their resignation. There is no register of members and no such register has ever been kept. As I understand it, it is not suggested by the plaintiffs that they became members of the Club in a manner that formally complied with rule 3. Equally, as I understand it, the defendants do not say that any of the plaintiffs formally ceased to be members in accordance with rules 4(b) and 6. As there was no register of members, the names of the plaintiffs were not entered into such a register when they were accepted as members, and accordingly their names have never been removed from the register.

2. [40]

   In fact, the members of the Club for the time being have, by a relatively informal process, treated persons as having joined as members, or having resigned, as a result of what happened at each annual general meeting, and whether persons who wished to be members were accepted by the other members present – possibly informally, by consensus, before the introduction of the so-called 100% rule – and whether those persons paid their membership fees in accordance with the accepted practice.

3. [41]

   As will be seen, the uniform divergence of the Club’s practices from the requirements of the Rules gives rise to a problem in these proceedings. In particular, the plaintiffs, who did not become members in accordance with the Rules claim that they remain members because they have not resigned in accordance with the requirements of the Rules. The defendants, on the other hand, have contended that, by some informal process, the Rules must be applied subject to the informal rules that the members have in fact, by consensus, applied over the life of the Club. Consequently, as will be seen, the defendants have admitted that most of the plaintiffs were at one time members of the Club, but that is not because the formal requirements of rule 3 of the Rules were complied with; but rather, the plaintiffs had in the past been accepted as members because of the relatively informal process described above that took place at annual general meetings. Having admitted that most of the plaintiffs were members of the Club at some time in the past on this basis, the defendants have submitted that the plaintiffs all ceased to be members, not because they complied with the formal requirements of rule 6 of the Rules, but because they had at some time in the past ceased to be members in accordance with the Club’s informal practices – principally, that they had not paid their membership fees for many years, or participated significantly in the Club’s affairs, so that they had resigned or abandoned their memberships.

4. [42]

   This approach by the parties gives rise to a logical problem in the determination by the Court of the principal issue in these proceedings. The plaintiffs say that they should be treated as members even though they did not join in compliance with the Rules, but they should not be treated as having resigned because they did not resign in accordance with the Rules. The defendants have admitted that most of the plaintiffs were members in the past, but that is only on the implicit basis that persons could become members in accordance with the informal practices adopted by the Club, but the defendants then submit that consistency requires that the plaintiffs have resigned or abandoned their memberships also on the basis of those informal practices.

Outline of parties’ cases

1. [43]

   Given that there are 13 separate active plaintiffs and the differences between the issues in the different plaintiffs' cases, relating as they did to different events at different times over a significant number of years, the Court required the parties to provide summaries of their claims. The plaintiffs did so on 18 October 2022 (plaintiffs' summary). The defendants provided their summary in reply on 24 November 2022 (defendants' summary).

2. [44]

   Although the approach may be somewhat belaboured, the most efficient way to deal with the individual cases of the plaintiffs and the responses of the defendants is to set out, plaintiff by plaintiff, both the plaintiffs' and the defendants' summary in relation to that plaintiff. This will involve an element of repetition, as many of the plaintiffs’ cases are structurally similar, and the defendants responses follow suit. I have to an extent abbreviated and paraphrased the parties’ summaries.

Rudy Diener (first plaintiff)

1. [45]

   Plaintiffs' summary – Rudy Diener contends that:

2. [46]

   Defendants' summary – Mr Diener:

Barbara Diener (third plaintiff)

1. [47]

   Plaintiffs' summary – Barbara Diener contends that:

2. [48]

   Defendants’ summary – Ms Diener:

Danny Williams (fourth plaintiff)

1. [49]

   Plaintiffs' summary – Danny Williams contends that:

2. [50]

   Defendants' summary – Mr Williams:

Fernando Hernandez (fifth plaintiff)

1. [51]

   Plaintiffs’ summary – Mr Hernandez contends that:

2. [52]

   Defendants' summary – Mr Hernandez:

George Hajidavid (sixth plaintiff)

1. [53]

   Plaintiffs’ summary – Mr Hajidavid contends that:

2. [54]

   Defendants' summary – Mr Hajidavid:

Louie Gottardo (eighth plaintiff)

1. [55]

   Plaintiffs' summary – Mr Gottardo contends:

2. [56]

   Defendants' summary – Mr Gottardo:

Warren Schofield (tenth plaintiff)

1. [57]

   Plaintiffs' summary – Mr Schofield contends that:

2. [58]

   Defendants' summary – Mr Schofield:

Manuel Gatt (eleventh plaintiff)

1. [59]

   Plaintiffs' summary – Mr Gatt contends that:

2. [60]

   Defendants' summary – Mr Gatt:

Stephen Bond (twelfth plaintiff)

1. [61]

   Plaintiffs' summary – Mr Bond contends that:

2. [62]

   Defendants' summary – Mr Bond:

Paul Zammit (fourteenth plaintiff)

1. [63]

   Plaintiffs' summary – Mr Zammit contends that:

2. [64]

   Defendants' summary – Mr Zammit:

Peter Andrews (fifteenth plaintiff)

1. [65]

   Plaintiffs' summary – Mr Andrews contends that:

2. [66]

   Defendants' summary – Mr Andrews:

Sam El-Helou (seventeenth plaintiff)

1. [67]

   Plaintiffs’ summary – Mr El-Helou contends that:

2. [68]

   Defendants' summary – Mr El-Helou:

Issues raised by the parties’ cases

1. [69]

   An analysis of the summary of the parties’ cases set out above in relation to the individual plaintiffs’ claims demonstrates that the following issues arise:

2. [70]

   As will be seen from the parties' summaries, there were some discrepancies in their claims as to when a plaintiff ceased to pay membership fees, and some of the plaintiffs made assertions of limited involvement in the activities of the Club after the time when the defendants say they ceased to pay membership fees. A few plaintiffs also gave brief reasons as to why they ceased to participate in the Club's activities. The evidence on these issues was relatively limited, and they were generally not the subject of detailed contest at the hearing. It will not be necessary for the Court to make precise findings on most of these issues. As appears from the defendants' summary, they usually took the stance of not directly challenging the plaintiffs' claims, but by saying that the limited matters raised by the plaintiffs were irrelevant to the issue of their continuing membership, because the plaintiffs had ceased to pay their membership fees a long time before the events alleged by the plaintiffs occurred.

3. [71]

   I accept the assertions made by the defendants as to the approximate times when the plaintiffs ceased paying membership fees. There was no real challenge to the defendants' position on this issue at the hearing. As I understand it, the cessation of the payment of membership fees was associated with the relevant plaintiffs ceasing to have any significant participation in the affairs of the Club.

Resignation of plaintiffs as members of the Club

1. [72]

   The most significant issue in these proceedings is whether the plaintiffs other than Ms Diener effectively resigned as members of the Club before the commencement of the proceedings. As to Ms Diener, the defendants mount a positive case that she never became a member of the Club.

2. [73]

   In no case did any plaintiff comply with the formal requirements in rule 6 of the Rules that purport to govern the manner in which members may validly resign from the Club.

3. [74]

   The question therefore is whether, notwithstanding the terms of rule 6, as a matter of law, members could effectively resign or abandon their membership notwithstanding non-compliance with that term of the Rules. If that question is to be answered in the affirmative, the next question will be whether the particular conduct of each plaintiff constituted an effective resignation or abandonment of their memberships.

4. [75]

   Those will be the only questions in the case of those plaintiffs who were definitely members of the Club because they were accepted as being members at the date it was incorporated. For those plaintiffs, it will be immaterial how they became members.

5. [76]

   In the case of the plaintiffs who claim to have become members of the Club after the date it was incorporated, it will be necessary to consider the issue raised above; being whether they can claim to be members notwithstanding that they did not comply with rule 3 of the Rules that governed the acquisition of membership, and at the same time, say that their resignation will not be effective if the circumstances did not comply with rule 6

6. [77]

   In the case of all plaintiffs other than Mr and Ms Diener, the conduct that the defendants alleged had the effect that the plaintiffs resigned or abandoned their membership of the Club was the non-payment of membership fees for many years, associated in various degrees with ceasing to participate in the affairs of the Club, including non-attendance at its annual general meetings.

7. [78]

   The case involving Mr Diener must be considered separately, as the defendants claim that Mr Diener made statements to members of the committee that should be construed as stating an intention to resign his membership.

8. [79]

   I will consider the issue of the validity of the defendants’ claim that the plaintiffs resigned or abandoned their memberships by non-payment of membership fees and non-participation in the affairs of the Club, before I consider separately the cases of Mr and Ms Diener.

Legal principles governing retirement as a member

1. [80]

   The starting position is to note the effect of s 26 of the 2009 Act that governs the nature of the legal relationship between an association that is incorporated under the Act and its members. The section provides:

2. [81]

   Thus, the Court is required to determine the plaintiffs’ claims on the basis that they must, first, demonstrate that they are members of the Club, so that they have standing to enforce the contract created by s 26 of the 2009 Act, and then second, they must establish the grounds for the available legal and equitable remedies in respect of any breaches committed by the Club.

3. [82]

   For convenience, I will repeat the relevant parts of rule 6, as follows:

4. [83]

   It is to be noted that rule 6(1) states in positive terms that a member is not entitled to resign their membership except in accordance with the rule. However, the use of the expression "not entitled" may be significant. The rule does not state that a purported resignation will be ineffective if the requirements of the rule are not satisfied. The expression "not entitled", directed as it is at the member who wishes to resign, suggests that the real purpose of rule 6(1) is to deny to members a right of resignation that they would otherwise have, unless they comply with the requirements set out in the rule.

5. [84]

   Not only did none of the plaintiffs resign their membership in accordance with this rule, but none of them expressly resigned at all, putting aside the dispute about whether Mr Diener did so. The question is whether the other plaintiffs’ conduct had the effect that they ceased to be members of the Club. Consequently, the issue is whether by their conduct the other plaintiffs impliedly resigned, or whether the real effect of their conduct was that they abandoned their memberships.

6. [85]

   The position at common law as to whether a member is entitled unilaterally to withdraw from membership of an association is as stated by Lindley LJ in Finch v Oake [1896] 1 Ch 409 at 415 as follows:

7. [86]

   In Redhead Grange Inc v Davidson (2002) 55 NSWLR 14; [2002] NSWSC 90, Brownie AJ outlined several qualifications to this principle at [5]-[8]:

8. [87]

   His Honour was dealing with a case where it was the member who sought to establish the validity of a unilateral resignation from membership of the association, in circumstances where significant liabilities were attached to the membership in favour of the association. In that context, his Honour referred to the possibility that “the cessation of membership might produce adverse consequences to others”. The issue in that case was whether the constitution of the association on its proper construction permitted members to resign unilaterally. As noted above, rule 6 of the Rules expressly prohibits a member from resigning from the Club unless the member has paid all amounts payable to the Club. Provided that is done, and the requisite notice in writing is given to the committee, the right to resign is automatic. That suggests that the purpose of rule 6 is not to enable the Club to retain members against their will, but is only to ensure that they have paid all amounts due to the Club before they are permitted to resign unilaterally. The condition governing the right of members to resign is for the benefit of the Club. That construction of the rule is consistent with the use of the expression "not entitled" in rule 6(1), as has been observed above.

9. [88]

   If that is the effective purpose of rule 6, the question becomes whether, on the proper construction of the Rules, the Club can accept a resignation in a case where the member has not paid what is due, by means of the Club waiving the entitlement to insist upon a formal resignation in compliance with rule 6, as the waiver would be of a condition inserted for the benefit of the Club.

10. [89]

    In this respect, it is to be noted that the effect of rule 9 of the Rules is that the liability of a member to contribute towards the payment of the debts and liabilities of the Club and other costs, charges and expenses is limited to the amount, if any, unpaid by the member in relation to fees and subscriptions payable under rule 8. As that is unlikely to be a large amount, there may be little benefit to the Club in insisting that members comply with rule 6 before their resignation is effective.

11. [90]

    As for the type of conduct which is sufficient to amount to cessation of membership by conduct, in Elmawey v Adelaide Mosque Islamic Society of South Australia Inc (Supreme Court (SA), Williams J, 3 December 1997, unrep) at 12-14, Williams J said:

12. [91]

    In Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413 (Imam Ali Islamic Centre), the rules of the relevant association provided the following in relation to the cessation of membership:

13. [92]

    The only significant difference between this provision and rule 6 of the Rules is that the latter is conditional on the member having paid what they owe to the Club by reason of their membership for the benefit of the Club. McMillan J stated (footnote omitted):

14. [93]

    In the appropriate case, non-payment of the membership fees payable to an association may be sufficient evidence of an intention on the part of a member no longer to be a member. In Imam Ali Islamic Centre, McMillan J provided the following summary of the effect of non-payment on association membership: (footnotes omitted):

15. [94]

    The applicable legal principle was stated succinctly by Wilson J in Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) [2019] QSC 194 (Faamate), where her honour said:

16. [95]

    By footnote 290, Wilson J cited as the authority for this proposition: Imam Ali Islamic Centre at [625] per McMillan J citing Finch v Oake , and In re Sick and Funeral Society of St John’s Sunday School, Golcar [1973] Ch 51, 62 per Megarry J.

17. [96]

    Care must however be taken not to confuse mere inactivity for a period that is not consequential for conduct that manifests an intention on the part of a member no longer to be a member.

18. [97]

    It seems to be entirely logical that, when a member of an association has not resigned in compliance with the formalities contained in its constitution, but over a long period of time has by the member’s conduct sufficiently manifested an intention to cease being a member, that implied resignation or abandonment of membership should be effective, subject to contrary provisions in the constitution. Otherwise, in cases where the membership is truly moribund, the association could sue to enforce the member’s obligations many years after the effective cessation of membership, or the member could opportunistically seek to share in some windfall received by the association, when the member has long since ceased to participate in the affairs of the association that have given rise to the benefit. Where the constitution of the association contains express formalities that govern resignation, to ensure that the association is not unilaterally deprived of its rights against members, a long dormant member should not be entitled to use the express term opportunistically to insist upon the continuation of their membership against the will of the association, having de facto ceased to be a member without complying with the rules governing resignation.

19. [98]

    So, in the case of rule 6 of the Rules, members could at any time resign by complying with the formalities, provided that they had paid all amounts payable to the Association in respect of their membership. If a member ceases to participate in the affairs of the Club for years and does not pay membership fees, the member should not be entitled to avail themselves of their own failure to comply with rule 6, to insist upon the continuation of their membership, when it is advantageous for them to do so, in the face of the willingness of the Club to waive the condition in rule 6(2) that is plainly inserted for the benefit of the Club.

Effect of rule 6(3) of the Rules

1. [99]

   At par 24 of their written closing submissions, the defendants made a submission that the effect of rule 6(3), on its proper construction, is that the method of resignation set out in rule 6(1) and (2) requiring written notice is not the only means permitted by the Rules in which a member can resign their membership. The submission focused on that part of rule 6(3) that says: “Where a member of the association ceases to be a member pursuant to clause (2), and in every other case where a member ceases to hold membership, the secretary shall…” The defendants argued that, as this rule recognised that a member may cease to hold membership in a case that did not comply with rule 6(2), the Court should find that the Rules allowed for an effective resignation from membership without the giving of the notice required by rule 6(2).

2. [100]

   I have already found that a member’s resignation may be effective without compliance with rule 6(1) and (2), but that is because the Club may waive the necessity for compliance and accept the validity of an informal resignation. I do not accept that the wording of rule 6(3) affects the issue, because I consider that the reference to “every other case where a member ceases to hold membership” looks back to where rule 4 provides that a person may cease to be a member of the Club if the person dies or is expelled from the association, in addition to having resigned. Rule 6(3) refers to cessation by death or expulsion, and does not in express terms recognise the validity of an informal resignation.

Relief to reinstate membership

1. [101]

   The Court has to this point considered the legal principles that govern when a member of an incorporated association’s membership ceases. If a member who has not paid membership fees or participated in the affairs of the association for many years establishes that their membership continues to be valid, the failure of the association to treat the membership as valid would be a contravention of the constitution. In that case, the question arises as to what remedies are available to the member to achieve practical reinstatement of their membership, and whether the entitlement of the member is qualified in any way.

2. [102]

   In the case of the Club, rule 7 of the Rules requires the public officer of the Club to establish and maintain a register of members. As noted above, the Club has never complied with that rule. That suggests that any party who establishes an entitlement to membership of the Club may have a right to an order against the Club that it cause its public officer to comply with rule 7 in respect of all valid members of the Club. That order could be made with an order requiring the Club to cause its public officer to record the successful plaintiff’s details in the register, and also for the Club itself to recognise and comply with the member’s rights under the Rules.

3. [103]

   Even though there is no equivalent in the 2009 Act to s 175 of the Corporations Act 2001 (Cth), which gives to the Court a statutory jurisdiction to make orders for the correction of a register maintained by a company or a registered scheme, it is clear that the Court has an equivalent jurisdiction in equity that arises out of the fact that, by reason of s 26(1) of the 2009 Act, the Rules constitute a contract between people who are entitled to be members and the Club. As Black J said in Gouros v Order of AHEPA NSW Inc [2023] NSWSC 1281:

4. [104]

   See also his Honour’s judgment in Re Centura Holdings Pty Ltd [2016] NSWSC 62; (2016) 111 ACSR 185 at [53].

5. [105]

   The statement of principle in Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 that Black J referred to was the following made by Fullagar J at 51-52 of the CLR citation:

6. [106]

   These principles were developed in Re Pacific Springs Pty Ltd [2020] NSWSC 1240; (2020) 148 ACSR 454 by Rees J, as follows:

7. [107]

   In my view, the authorities that establish that there is jurisdiction in equity for the Court to make orders for the maintenance and correction of registers required to be maintained by companies apply with equal force to a register required to be kept by an association incorporated under the 2009 Act. The equitable principles referred to are of general application and arise out of the underlying contractual rights as between the association and its members.

8. [108]

   The result is that the Court in its equitable jurisdiction has the power to order the Club to cause its proper officer to create and maintain the register of members required by rule 7 of the Rules, and to enter in the register the names of any plaintiff who is successful in these proceedings in establishing that they are members of the Club. However, those remedies are discretionary and are subject to being defeated by generally available equitable defences such as, as is relevant in the present case, the defence of laches and delay in commencing these proceedings seeking to be treated members.

Membership status of plaintiffs other than Mr and Ms Diener

1. [109]

   In my view, the decisive fact in the claims of all of the plaintiffs, other than Mr and Ms Diener, that they are members of the Club, is the length of time over which those plaintiffs have not participated, or have not participated in any continuing meaningful way, in the affairs of the Club; they have not attended annual general meetings, and they have not paid membership fees.

2. [110]

   The position is, as has been set out above in relation to the parties’ summaries of their cases:

3. [111]

   I find that the level of inactivity in each case, even where the period was only 11 years, is sufficient to demonstrate that the plaintiffs have ceased to be active members of the Club, and that they have abandoned their membership and impliedly communicated with the remaining members that they did not want to participate as formal members of the Club. That is so notwithstanding, in some cases, the occasional involvement of the plaintiff with the Club or a member of the committee. In making this finding, I have had regard to the nature of the Club and its activities, being a small social sporting group, whose activities are manifested in engagement in pigeon racing at regular intervals during the racing season. It is not the type of association for which participation of members is irregular and consistent with dormant intervals. It is just not realistic for the plaintiffs to say, after the periods of their dormancy as members, that they have to the date of the hearing regarded themselves as being current members of the Club, notwithstanding their extensive defaults in paying their membership fees.

4. [112]

   I am satisfied that the evidence proves that, even though the historical practice of the Club in noting the identities of continuing members and receiving membership fees at or shortly after the holding of the annual general meeting was not incorporated formally in the Rules, it must have been understood by all of the plaintiffs that participation in that process was the means of signifying in fact to other members of the Club that the plaintiffs wished to continue on an annual basis their membership of the Club. That being the case, in a real way, the failure of the plaintiffs, year on year, to participate in the annual general meeting and to signify their desire to be treated as continuing members by the payment of their membership fees, would have positively, albeit implicitly, communicated to the remaining active members of the Club that the plaintiffs no longer wished to be members.

5. [113]

   I therefore hold that none of the plaintiffs other than Mr and Ms Diener have established that they were members of the Club at the date of the hearing in these proceedings.

6. [114]

   I have come to that conclusion without having to have regard to the fact that the plaintiffs who the defendants accepted had become members after the date of the incorporation of the Club had not complied with the entry requirements in rule 3 of the Rules, but nonetheless argued that they would only cease to be members, if the formal requirements of rule 6 of the Rules were satisfied. As I have recorded above, although the defendants in the summary of their cases expressly accepted that these plaintiffs had become members, I consider that that was on the basis of the perceived need on the part of the defendants to be consistent in their case. They could not reasonably have argued that the informal rules of the Club as to the renewal of membership on an annual basis at the annual general meeting governed the continuation of the plaintiffs’ membership, and then have argued that the relevant plaintiffs had not become members because their membership applications did not comply with rule 3 of the Rules. However, had it been necessary to do so, I would have found that the plaintiffs who became members after the date of incorporation of the Club are not permitted to approbate and reprobate. If they wished to be treated as members, having only been admitted by the informal process that was inconsistent with rule 3, they could not insist upon remaining members if they had not complied with the informal process of the Club for that purpose, and insist that they remained members because of the non-compliance with rule 6.

7. [115]

   I acknowledge in relation to the case of Mr Williams that he has a fair argument that he was effectively expelled as a member of the Club in about 2006, on the basis of an allegation of infidelity between Mr Williams and the wife of another member. The plaintiffs suggested the year was 2006 in par 73 of their written closing submissions. Any constructive expulsion of Mr Williams did not conform to the procedure in rules 10 and 11 of the Rules. It may be that if Mr Williams had acted with reasonable expedition, he could have persuaded the Court to exercise its discretion in his favour to order the Club to cause its proper officer to create a register of members and to add Mr Williams’ details to the register. However, I consider that a delay of 14 years is too great to justify the Court in exercising its discretion in Mr Williams’ favour.

8. [116]

   I would, in any event, have exercised my discretion against granting the relief sought by all of the plaintiffs, other than Mr and Ms Diener, if they had satisfied me that technically they remained members of the Club.

9. [117]

   The plaintiffs have stood by for periods ranging between 11 and 30 years, and allowed the remaining members of the Club to continue to participate in its affairs. As recorded above, those affairs include the sale of the clubhouse. Although the evidence did not explore the affairs of the Club in detail, it is likely that they have changed over the years. In particular, there was no evidence about the financial significance of the sale of the clubhouse.

10. [118]

    There was evidence that a dispute arose in about 2017, in which Mr Diener took strong exception to the imposition of the 100% rule, which was apparently directed at restricting the number of members, or flying members, of the Club before it had acquired a new clubhouse. The evidence was that, putting aside the plaintiffs, there were between eight and 11 other members of the Club. If the plaintiffs whose claims remain on foot had been reinstated as members, that would give 11 additional members, apart from the claims of Mr and Ms Diener. The plaintiffs have not explained why, after so many years, their interest in being active members of the Club has been rekindled. There was no persuasive evidence that their real motivation was to engage in regular pigeon racing. There is a strong appearance that the purpose of these proceedings is for Mr Diener to acquire either voting control, or a blocking power, in the Club’s affairs. That would not by itself be a dis-entitling factor in the exercise by the Court of its discretion to grant equitable remedies to the plaintiffs. But it does justify the Court in expecting to receive a proper explanation of the reasons for the plaintiffs in bringing these proceedings, so the Court would understand the effect on the remaining members of the Club of the Court making orders that reinstated the plaintiffs as members. I consider that that explanation is lacking.

11. [119]

    It has not been necessary for the Court to decide the claims of the plaintiffs, other than Mr and Ms Diener, on the basis of the arguments put by the defendants that the plaintiffs are not entitled to be reinstated as members, because a number of the plaintiffs had made admissions that they were no longer members, and a number of the plaintiffs resided outside the membership catchment area for the Club.

12. [120]

    Had it been necessary to do so, I would have held that an admission by a plaintiff that they were not a member of the Club would have been immaterial, if the evidence had otherwise established that the plaintiff was lawfully entitled to membership.

13. [121]

    Also, I would have held that, as there is no residential restriction on membership in the Rules, an informal requirement of that nature would have been irrelevant (given, in particular, that a person may be a member of the Club and not a flying member).

14. [122]

    In relation to Mr Zammit’s claim, some confusion arises out of the reference in the defendants’ summary to Mr Zammit being suspended from the Club in 2007. The plaintiffs’ submissions do not make anything out of this issue, save to say that it was a reason why Mr Zammit had a justification for not paying membership fees after 2007. The plaintiffs noted in par 48 of their written submissions in reply that Mr Zammit had not claimed that he was denied natural justice. The assertion that Mr Zammit had been “expelled” from the Club was made by Mr Hill in par 136 of his 5 May 2020 affidavit. The plaintiffs’ submissions on the issue were only in response to this assertion. That being the case, there is no need for the Court to refer to this issue further, as it is immaterial.

Alleged resignation of Mr Diener

1. [123]

   The defendants’ case is that Mr Diener’s conduct in 2017 was an effective resignation of his membership in the Club, essentially on the basis of the principle in Finch v Oake.

2. [124]

   Mr Diener did not formally resign by complying with rule 6(2) of the Rules.

3. [125]

   The defendants’ case must be that they have accepted Mr Diener’s resignation by waiving compliance with rule 6(2).

4. [126]

   The issue of whether Mr Diener resigned his membership of the Club is factually different to those plaintiffs who ceased to take part in the activities of the Club and pay membership fees for periods ranging from 11 years to 30 years. Mr Diener became a member of the Club in 1964, and had therefore been a member for 53 years by 2019; I take it as an active flying member.

5. [127]

   Resignation from the membership of an association of which one has been a member for more than half a century is a serious matter that is not to be inferred lightly. That is particularly so as the evidence is that Mr Diener had paid his membership fee for the relevant year.

6. [128]

   The defendants did not plead the circumstances which they allege constituted the resignation of Mr Diener’s membership in their defence. In the defendants’ summary, they merely asserted that Mr Diener resigned in 2017.

7. [129]

   The defendants’ case emerges from par 68 of the affidavit of Mr Hill sworn on 5 March 2020, where he said:

8. [130]

   Mr Hill then referred to the minutes of the meeting on 24 February 2017, which were admitted into evidence as Exhibit P3. The minutes are in handwriting in a diary for 24 February 2017. The minutes refer to Mr Gatt’s application for membership and that he was told: “NO NEW MEMBERS UNTIL WE GET NEW CLUB HOUSE”. They then record that there were three votes for and six votes against Mr Gatt’s application. The minutes then state:

9. [131]

   Mr Diener was at the time of this meeting the Club’s ring secretary. Rings were provided by the ring secretary to flying members of the Club. The rings were an essential aspect of pigeon racing as a ring had to be attached to each racing pigeon. Members had to pay the ring secretary for the use of the rings.

10. [132]

    The following observations may be made about the significance of the minutes:

11. [133]

    Mr Harris’ evidence on this subject was given in his affidavit sworn on 6 March 2020, in which he said:

12. [134]

    Mr Harris gave evidence of arranging sometime later for Mr Diener to return to the Club what he described as the ring secretary books.

13. [135]

    In cross-examination, Mr Harris said at T 443.40-T 445.11:

14. [136]

    Mr Zimmer, in his affidavit sworn on 6 March 2020, gave the following evidence of a conversation that he said he had with Mr Diener at Mr Zimmer’s house about a week or two after the 2017 annual general meeting of the Club:

15. [137]

    Mr Diener simply said in par 29 of his 23 July 2020 affidavit in reply that he told Mr Harris that he did not want to be the ring secretary anymore, as he felt he had been let down by some of the members, as they would not let in a flyer who had been a member for at least 16 years. He said that no longer being the ring secretary had no bearing on his membership.

16. [138]

    The evidence does not satisfy me, on the balance of probabilities, that Mr Diener made an unqualified statement that he resigned his membership of the Club. Given the long-standing nature of Mr Diener’s membership and the fact that he had a constitutional entitlement under the Rules to be a member, I consider that relatively specific evidence is required before the Court would be justified in making a finding of fact that Mr Diener informally resigned from the Club.

17. [139]

    As there had been a “slanging match” at the meeting of members of the Club on 24 February 2017, and given the level of disagreement concerning the appropriateness of the Club’s membership rules, I consider that the reliability of evidence given by the participants in the conversations in affidavits some three years later, in 2020, is limited.

18. [140]

    The best evidence of what was actually said is at the foot of the minutes of the 24 February 2017 meeting, which record that Mr Diener resigned as the race secretary and stated that he would not fly with the Club. That statement is not the same as an unequivocal resignation as a member of the Club.

19. [141]

    It cannot be inferred merely from Mr Diener’s dissatisfaction with the then committee of the Club and the membership rules, and his decision to fly with another club, that Mr Diener had clearly conveyed to the members of the Club that he intended to resign his 50 year membership.

20. [142]

    I do not, in any event, accept that statements that may have been made by Mr Diener to members of the committee privately concerning his unhappiness with the way the Club’s affairs had been managed should be treated as formal communications with the Club on the subject of the continuation of Mr Diener’s membership.

Remedies on Mr Diener’s claim

1. [143]

   As Mr Diener remains a member of the Club at law, he has standing to seek an order in terms of prayer 2 of the amended statement of claim declaring that, at the time of judgment, he is a member of the Club.

2. [144]

   As these proceedings were commenced on 12 December 2018, Mr Diener's claim cannot be rejected on the basis of laches or delay.

3. [145]

   Mr Diener is also entitled to an order against the Club that it cause its proper officer, which I understand will be the secretary, to create and maintain a register of members in conformity with rule 7 of the Rules and to enter into the register the required details of his membership.

4. [146]

   Apart from the fact that rule 7 of the Rules requires the Club to maintain a register of members, if anything is established by these proceedings it is that it is fundamentally in the interests of the Club and its members to ensure that records are properly kept so that the membership of the Club will clearly be established from time to time.

5. [147]

   I will deal with Mr Diener’s claim for a declaration that the October 2017 Constitution is invalid separately below.

Basis of Ms Diener’s claim to be a member of the Club

1. [148]

   The plaintiffs alleged in par 9 of the amended statement of claim that Ms Diener, the third plaintiff, became a member of the Club in or around 2011 and has not resigned from membership or been expelled. The amended statement of claim does not plead the facts upon which Ms Diener’s claim to have become a member of the Club is based.

2. [149]

   The most complete statement of the basis of Ms Diener’s claim to have become a member of the Club is to be found in par 67 of the plaintiffs’ written closing submissions, as follows (omitting references to the evidence):

3. [150]

   Ms Diener’s claim to be a member of the Club was put on the basis that the Club is estopped from denying her membership.

Application of estoppel principles to membership of an association

1. [151]

   In Imam Ali Islamic Centre, McMillan J stated the relevant principle as follows (footnotes omitted):

2. [152]

   For her statement that estoppel cannot operate in this context, her Honour relied upon Bielski v Oliver (1958) 1 FLR 258, 260 (Spicer CJ, Dunphy and Morgan JJ); and Australian Public Service Association (Fourth Division Officers) v Lawrence (1982) 2 IR 166, 168 (Toohey J). McMillan J also noted the decision of Kavourakis v Waverley Bowling & Recreation Club Ltd [2010] NSWSC 439 at [23]–[36], where Barrett J (as his Honour then was) considered and dismissed an allegation that an association was estopped from denying the membership of the plaintiff.

3. [153]

   McMillan J’s statement of principle was accepted by Wilson J in Faamate at [219]. Wilson J continued with the following observations (footnotes omitted):

4. [154]

   See also Moala v Free Wesleyan Church of Tonga in Australia (Victoria) Inc [2019] VSC 205 at [427]-[436] per Ginnane J for a discussion of why a person cannot become a member by estoppel of an incorporated association in a case where the person has not complied with the procedure for acquiring membership in accordance with the constitution of the association established by statute.

5. [155]

   The evidence given by Ms Diener in support of her claim was very limited. On 14 May 2019, Ms Diener swore a pro forma affidavit of 6 paragraphs that contained no evidence concerning her belief that she had become a member of the Club. Ms Diener swore an affidavit on 23 July 2020 that, in a single brief paragraph, explained that Ms Diener did not attend meetings of the Club on a Friday night, and that she had never been to an annual general meeting or received notice of an annual general meeting. She said that she did attend other Club functions such as award nights. She said that she had participated in pigeon races with the Club from about 2013 to 2016.

6. [156]

   Mr Diener gave limited evidence on this issue in his 27 October 2022 affidavit, as follows:

7. [157]

   It appears to be the case that for a number of years Ms Diener participated in the affairs of the Club, largely through the actions of Mr Diener. She may have been a nominal participant in a pigeon racing team, but there is no evidence that she conducted the races as a principal. Ms Diener apparently participated in a number of social events at the Club, but she did not attend the Club’s principal Friday night meetings or its annual general meetings. It may be that for a number of years Mr Diener paid into the Club’s bank account an amount to cover Ms Diener’s membership fees. There was evidence, however, that part of Mr Diener’s role was to collect annual fees for members and to pay them into the Club’s bank account.

8. [158]

   The evidence appears to be devoid of any direct evidence that any member of the committee made any representation to Ms Diener that she would be treated as a member of the Club. Those members probably had no authority to bind the Club by ignoring the rules concerning the admission of members, but it appears to be the case that no representations were made to Ms Diener in any event. It seems that, as a result of the informal conversation that Mr Diener deposed to, and which has been set out above, Ms Diener was permitted in a limited way to participate in the activities of the Club without her having been required formally to join as a member.

9. [159]

   Ms Diener has not given evidence of the circumstances in which she was led to believe that she was a proper member of the Club, and she has not said in any material way that she acted on that belief, or that she will suffer any detriment if the Club asserts that she is not a member. All that will happen is that she will be deprived of the informal benefits that she enjoyed while the Club permitted her limited participation in its affairs as if she were a member.

10. [160]

    The result is that Ms Diener’s claim must fail, both because the common law does not permit her to assert against the Club that it is estopped from denying that Ms Diener has not satisfied the requirements for membership in the Rules, and because, even if estoppel were available, Ms Diener has not proved a factual basis for the Court to find an estoppel against the Club.

Validity of the October 2017 Constitution

1. [161]

   When the plaintiffs filed their amended statement of claim on 1 December 2022, they introduced by prayer 3C a claim for an order declaring that the October 2017 Constitution is invalid.

2. [162]

   That application was therefore made in the order of five years after the October 2017 Constitution was resolved by the members of the Club who attended the relevant general meeting to be introduced and to replace the Rules.

3. [163]

   The only basis upon which the plaintiffs have alleged that the special resolution to introduce the October 2017 Constitution was invalid is their claim that all of the plaintiffs were members of the Club at the time of the resolution, but they had not been given the notice of the proposal to put the special resolution to members, as is required by rule 25(2) of the Rules.

4. [164]

   Although the text of the October 2017 Constitution is in evidence, no reference was made to it by the parties. There was no suggestion by the plaintiffs that there was any serious defect in the October 2017 Constitution.

5. [165]

   If the Court had found that a sufficient number of the plaintiffs were members of the Club who had not been given the notice of the intention to put the special resolution to members to which they were entitled under the Rules, then there would be a legal basis for the Court to make an order declaring the October 2017 Constitution to be invalid. That is because the plaintiffs may at least have had enough members to defeat the special resolution.

6. [166]

   There would still have been the issue of whether the plaintiffs had established that there was any serious defect in the October 2017 Constitution, and it would have been necessary for the Court to consider whether the plaintiffs’ delay in seeking the relief in prayer 3C of the amended statement of claim was a sound discretionary reason for rejecting the claim.

7. [167]

   As it is, the result of these proceedings is that only Mr Diener has established that he is a member of the Club. It appears Mr Diener was wrongly excluded from the members who were given notice of the intention to put the special resolution to introduce the October 2017 Constitution.

8. [168]

   There is no evidence of the result of the voting of the members of the Club when they resolved by special resolution to introduce the October 2017 Constitution. Accordingly, the Court does not know whether it would have made a difference if the Club had recognised Mr Diener’s membership and given him notice of the general meeting.

9. [169]

   As Black J has explained in In the matter of Order of AHEPA NSW Inc [2018] NSWSC 458:

10. [170]

    The Club has not made an application in these proceedings for an order that will have the effect of validating the October 2017 Constitution, even if it may technically be invalid. As the validation power is required to be exercised liberally (see In the matter of Order of AHEPA NSW Inc at [22]), it is probable that, if the application had been made, the result would have been the continuing validity of the October 2017 Constitution.

11. [171]

    As even in the plaintiffs’ written closing submissions the only real basis upon which the plaintiffs pursued their claim for a declaration that the October 2017 Constitution was invalid was that they were all members and none had been given notice of the intention to put the special resolution, I consider that nothing is to be gained by making an order that the October 2017 Constitution is invalid, and the making of such an order would only be productive of wasted costs and inconvenience. I would infer that, it is likely that, if it were required to be done, the members of the Club could repeat their approval of a special resolution to introduce the October 2017 Constitution, even if that course were opposed by Mr Diener. Mr Diener has not even given evidence to the Court that he would oppose the special resolution, or that there is any reason for him to do so.

12. [172]

    I will exercise the Court’s discretion to reject Mr Diener’s claim for a declaration that the October 2017 Constitution is invalid.

Order for the production of documents to Mr Diener

1. [173]

   The plaintiffs observed in par 119 of their written closing submissions that there may be limited utility to prayer 1 of the amended statement of claim if the defendants agree to provide the books sought by Mr Diener in the event that any of the plaintiffs are found to be members of the Club. Rule 39 of the Rules entitles the members of the Club to inspect the records, books and other documents of the Club, free of charge, at any reasonable hour.

2. [174]

   The defendants did not make submissions on this issue in their written closing submissions.

3. [175]

   It is likely that the only reason why Mr Diener’s requests to have access to the Club’s documents was not complied with was that the defendants challenged Mr Diener’s membership. There was no suggestion that Mr Diener had asked to inspect documents that he had no right to inspect under rule 39.

4. [176]

   In the circumstances, I will simply make an order that the Club perform its obligations under rule 39 of the Rules (or whatever replacement rule may be in effect under the October 2017 Constitution) to allow Mr Diener to inspect the Club’s documents.

Costs

1. [177]

   The position is that all of the plaintiffs’ claims will be dismissed, other than the claim made by Mr Diener for an order declaring that he is a member of the Club, for an order that the Club create and maintain a register of members and that his details be entered in the register, and an order that the Club allow Mr Diener to inspect the documents that he is entitled to inspect under the Club’s constitution.

2. [178]

   In principle, Mr Diener is entitled to an order that the Club pay his costs of the issues on which he has been successful.

3. [179]

   It does not appear why it was necessary or proper for the plaintiffs to continue with the joinder of the three members of the committee as defendants after the plaintiffs abandoned the claim for relief in prayer 3 of the statement of claim.

4. [180]

   There may be an argument that the plaintiffs, including Mr Diener, should be liable to pay the costs incurred by the members of the committee after the filing of the amended statement of claim. However, all defendants have at all times been represented by one set of lawyers and it is extremely unlikely that it has been necessary for the defendants to incur legal costs that related to separate issues involving the members of the committee. It is likely to introduce confusion and expense if separate costs orders are made in relation to the costs of the members of the committee.

5. [181]

   An order should be made that the unsuccessful plaintiffs pay the costs of the defendants in relation to those plaintiffs’ claims that they were members of the Club.

6. [182]

   There is no rational way for the Court to make a fair broad-brush judgment that the plaintiffs as a whole should pay a percentage of the defendants’ costs to make a proper allowance for Mr Diener’s success in the proceedings. The Court does not have sufficient visibility of the forensic effort that was required by the parties in respect of all of the issues in dispute.

7. [183]

   I note that, in their written closing submissions, the defendants asked for an opportunity to be heard on the question of costs. That is a reasonable request and would ordinarily be granted. However, if there is to be a hearing as to costs, it will have to be conducted by some other judicial officer than myself.

8. [184]

   In the circumstances, I will merely note that, if I had been required to make appropriate costs orders, I would have made orders that reflected the considerations set out above.

9. [185]

   I will make an order giving the parties leave to list the matter before the Equity Registrar so that arrangements can be made to deal with the issue of costs. If the parties cannot come to an agreement on that subject, that would lead them to being able to submit agreed short minutes of order to the Equity Registrar.

Orders

1. [186]

   The Court’s orders are:

   1. (1)

      Order that the claims of the third to twelfth, fourteenth, fifteenth and seventeenth plaintiffs be dismissed.

   2. (2)

      Declaration that the first plaintiff is a member of the first defendant as at the time of judgment.

   3. (3)

      Order the first defendant to create and maintain a register of the members of the first defendant within 28 days of this judgment, such register of members to be created and maintained in compliance with the constitution for the time being of the first defendant.

   4. (4)

      Order the first defendant to cause the details of the first plaintiff to be recorded in the register of members in compliance with the constitution for the time being of the first defendant.

   5. (5)

      Order the first defendant to comply within 28 days of this judgment with any rule in the constitution for the time being of the first defendant that requires it to give inspection of the first defendant’s documents to the first plaintiff.

   6. (6)

      Order that the amended statement of claim be otherwise dismissed.

   7. (7)

      Grant leave to the parties to relist these proceedings before the Equity Registrar on seven days’ notice to seek orders to give effect to the orders made in these proceedings.

   8. (8)

      Grant leave to the parties to confer as to the costs orders that should be made having regard to the observations made in the Court’s reasons for judgment and if agreement can be reached, to submit short minutes of order to the Equity Registrar for arrangements for an appropriate order to be made, and if agreement is not reached, to list the matter by arrangement with the Equity Registrar so that orders can be made to deal with all outstanding issues of costs.