Lianos v Order of AHEPA NSW Inc

1. [1]

   MACFARLAN JA: I agree with Emmett AJA.

2. [2]

   MEAGHER JA: I agree with Emmett AJA that this appeal should be allowed for the reasons his Honour gives.

3. [3]

   EMMETT AJA:

Introduction

1. [4]

   The present dispute was brought to a head by a proposal for the Association to enter into arrangements with Bayside Council (the Council) concerning the site of Bexley North Bowling Club, which is owned by the Council. The proposal involves demolition and removal of an existing building, the construction of a new building and car park, reinstatement of an existing rundown bowling green and ultimately the construction of a new multipurpose hall for use by the Association (the Project). The proposal involves the grant by the Council to the Association of a lease of the proposed developed site for a minimum term of 21 years.

2. [5]

   At a meeting on 28 February 2019 (the February 2019 Meeting), which was purportedly a general meeting of the Association, resolutions were passed:

3. [6]

   By their amended originating process filed in the Corporations List of the Equity Division on 8 March 2019, the Dissenting Members sought declarations that the resolutions purportedly passed at the November 2018 Meeting were invalid or alternatively that proceedings at that meeting were void. They also sought a declaration that the motions passed at the February 2019 Meeting authorising the Committee of Management to obtain funds were invalid and of no effect. Finally, they sought declarations concerning the meaning of the Association’s constitution as to eligibility for membership of the Association.

4. [7]

   By its amended interlocutory process of 13 March 2019, the Association sought orders under s 1322(4)(a) of the Corporations Act 2001 (Cth) (the Corporations Act), as applied by ss 96 and 97 of the 2009 Associations Act and reg 18 of the Associations Incorporation Regulation 2016 (NSW) (the Associations Regulations). Section 1322(2) of the Corporations Act relevantly provides that “a proceeding” under the Corporations Act is not invalidated because of any procedural irregularity unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that cannot be remedied by any order of the Court. Under s 1322(4)(a), the Court may make an order declaring that any act, matter or thing purporting to have been done, or any proceeding purporting to have been instituted or taken, under the Corporations Act or in relation to a corporation is not invalid by reason of any contravention of a provision of the Act or a provision of the constitution of a corporation. The Court may make such consequential and ancillary orders as the Court thinks fit. However, the Court must not make an order under s 1322(4)(a) unless it is satisfied that the act, matter or thing or the proceeding is essentially of a procedural nature and no substantial injustice has been or is likely to be caused to any person.

5. [8]

   The Corporations Act does not, in its terms, apply to the Association. However, s 96 of the 2009 Associations Act relevantly provides that regulations made under that Act may declare any matter relating to associations to be an “applied Corporations legislation matter” for the purpose of Pt 3 of the Corporations (Ancillary Provisions) Act 2001 (NSW). Section 97 of the 2009 Associations Act relevantly provides that, for an “applied Corporations legislation matter”, the provisions of the Corporations Act are taken to be modified such that a reference in the applied provisions to the constitution of a company is to be read as a reference to the constitution of an association. Regulation 18 of the Associations Regulations provides that, for the purpose of s 96 of the 2009 Associations Act, any matter relating to associations is declared to be an “applied Corporations legislation matter” for the purposes of the Corporations (Ancillary Provisions) Act 2001 (NSW) in relation to the provisions of s 1322 referred to above, except that:

6. [9]

   On 3 October 2019, for reasons published on that day, a judge of the Equity Division sitting in the Corporations List (the primary judge) ordered that the Dissenting Members’ claim by their amended originating summons be dismissed with costs. The primary judge also made orders, as sought by the Association, under s 1322(4) of the Corporations Act as applied by ss 96 and 97 of the 2009 Associations Act and reg 18 of the Associations Regulations.

7. [10]

   The Dissenting Members appealed from the orders made by the primary judge. Their amended notice of appeal, which was filed on 21 January 2020, relies on some 26 grounds, certain aspects of which were not pressed. By its amended notice of contention, which was filed on 29 January 2020, the Association relies on eight grounds. Before addressing the grounds of the notice of appeal and the notice of contention, it is necessary to say something about the background to the Association.

The Order of the Australian Hellenic Educational Progressive Association

1. [11]

   The history of various organisations or associations with which the Association is connected is of relevance in explaining the context in which the Association was formed. That history explains some of the language and terminology that bears on the questions of construction that are raised in the appeal. The history is to be found in documents regulating the affairs of an organisation called “the Australian Hellenic Educational Progressive Association”, whose fundamental purpose was described as being “to form institute and perpetuate a fraternal Order” so as to promote certain objects and principles. In 1990, that organisation adopted a constitution (the 1990 AHEPA Constitution), relevant parts of which are set out in the Appendix to these reasons (the Appendix). The 1990 AHEPA Constitution said that the organisation was to be known as “the Order of AHEPA”. The organisation is referred to as “the Order” in the 1990 AHEPA Constitution. It is convenient to refer to that organisation as “AHEPA Australia”.

2. [12]

   Pursuant to the 1990 AHEPA Constitution, regulations were promulgated in 1990 (the 1990 AHEPA Regulations). Part 1 of the 1990 AHEPA Regulations outlined the history of AHEPA Australia. The following history is taken from the 1990 AHEPA Regulations.

3. [13]

   According to the 1990 AHEPA Regulations, the “Order of AHEPA” was first “introduced” at a gathering held in Werris Creek, New South Wales in August 1934. In excess of 30 men whose names suggest Greek heritage were present at the gathering. After meetings held in Armidale, Gunnedah and Scone, “the By-laws and Ritual of the American AHEPA, with the necessary alterations to comply with the laws of this land” were adopted for the organisation that was then established. In August 1936, “a Foundation Meeting” was held in the Greek school hall at South Brisbane. On the following day, a banquet was held to celebrate the foundation of “AHEPA” in Queensland. “The Supreme Lodge of Queensland” was formed in 1948.

4. [14]

   The “Order of AHEPA” was established in Victoria in 1942, when the “Prometheus” Chapter was founded, followed by further Chapters, “Athenian” in 1944, “Solon” in 1976 and “Atlas” in 1978, in Hobart. The “Prometheus” and “Athenian” Chapters merged in 1945 under the name “Athenian”. “AHEPA” was “resurrected” in New South Wales in 1953 with the establishment of a different “Prometheus” Chapter. There is no specific reference in the text to the foundation of Chapters in NSW before that time, other than a passing reference to the "Mother Lodge"; nor is there any explanation of why “AHEPA” needed to be "resurrected” in NSW. The new “Prometheus” Chapter was followed by two further Chapters in Sydney, “Anatole” in 1956 and “Diogenes” in 1957.

5. [15]

   The unification of “the Order” was achieved throughout Australia in 1954, when the three States in which “AHEPA” had been established came together to form “the Supreme Lodge of Australia”, and conducted the first “National Convention” in Sydney. The three States were formed into “Grand Lodges”, being the Grand Lodge of Queensland, Grand Lodge of New South Wales and Grand Lodge of Victoria. From there, “the Order grew on a national basis”, with the National Convention being held annually. “Archimedes” Chapter was formed in Perth in 1957 and the Grand Lodge of Western Australia was inaugurated in 1965. “Anaxagoras” Chapter followed in Adelaide in 1973 and the Grand Lodge of South Australia was formed in 1977. “Phoenix” Chapter was inaugurated in Canberra in 1972.

6. [16]

   Chapters of women, young women and young men were subsequently established, being, respectively, the “Daughters of Penelope” in 1953, the “Maids of Athena” in 1975 and the “Sons of Pericles” in 1976. Those Chapters appear to be “auxiliary organisations”, as referred to below.

7. [17]

   The 1990 AHEPA Regulations contain provisions under the heading “Units of the Order of AHEPA” that indicate that, at the time of their adoption, AHEPA Australia had 15 Chapters of men, together with 11 Chapters of the Daughters of Penelope, three Chapters of the Sons of Pericles and six Chapters of the Maids of Athena. Each Chapter appears, to some extent, to be a separate organisation or association. Indeed, some of those organisations and associations have subsequently been incorporated under the 2009 Associations Act or its equivalent in other States. In addition, there appear to be six Grand Lodges and one District Lodge.

8. [18]

   Clause 7 of the 1990 AHEPA Constitution, which appears under the heading “the AHEPA Domain”, provided that AHEPA Australia: “in its complete entirety”, was to be composed of the following “units”:

9. [19]

   Clause 8 of the 1990 AHEPA Constitution provided that the National Convention was to be “the highest constituted body” of AHEPA Australia, which, under cl 9, was to be composed of:

10. [20]

    Clause 53(a) of the 1990 AHEPA Constitution provided that the National Convention could promulgate regulations and rules of order for the better administration of AHEPA Australia and its “auxiliaries”, which were to have the same effect as if included in the 1990 AHEPA Constitution. Under cl 53(b), such regulations or rules of order could be amended at a National Convention by a majority of two-thirds of the delegates present and voting. The 1990 AHEPA Regulations were promulgated pursuant to cl 53(a) of the 1990 AHEPA Constitution.

11. [21]

    Clause 5 of the 1990 AHEPA Constitution provided for “membership” and provided that the persons eligible for membership of AHEPA Australia were:

12. [22]

    Under cl 11 of the 1990 AHEPA Constitution, the Supreme Lodge was to be the “highest executive body of the Order” and was to consist of all past supreme presidents and not more than 15 elected members who were past grand presidents who are financial members of their respective Chapters. Under cl 12, the Supreme Lodge was to have power and authority to interpret and enforce the 1990 AHEPA Constitution, the 1990 AHEPA Regulations and resolutions of the National Convention and to adopt or overrule any interpretations made by the Supreme Counsellor, an officer of the Supreme Lodge described as the general adviser of the Order and responsible for interpreting the Constitution and other documents. The Supreme Lodge was also to have the power and authority to grant charters to Grand Lodges and the Chapters constituting them, to accept their surrender and to submit for approval by the National Convention the revocation of charters. The Supreme Lodge was to have power to convene a National Convention once in every year and to present the annual report of the National Convention.

13. [23]

    Clause 15 of the 1990 AHEPA Constitution stated that the State Convention was to be the highest constituted “unit of the Order” in every State or territory in which there is a Grand Lodge. Every year, each Grand Lodge was required to convene a convention to take place in the State or territory where it has jurisdiction. Clause 16 provided that the State Convention was to be composed of all members of the Grand Lodge and District Lodge convening the State Convention and the delegates elected by each Chapter entitled to representation and voting at a State Convention.

14. [24]

    Under cl 18(a) of the 1990 AHEPA Constitution, the Grand Lodge was to be the highest executive body of AHEPA Australia in each State and was to be directly responsible to the Supreme Lodge. Each Grand Lodge was to consist of all past presidents and presidents of Chapters who were financial members of their respective Chapters and was to include past presidents of the Sons of Pericles and the Maids of Athena or until they reach the age of 23 or join the ranks of “the senior organisation”.

15. [25]

    Part VI of the 1990 AHEPA Constitution, which consisted of cll 22 to 34 inclusive, dealt with “Chapters”. Under cl 22(a), the Chapter was to be “the basic primary and fundamental unit” of AHEPA Australia and each member of AHEPA Australia was to be a member of a Chapter. Under cl 22(b), any organisation of men who have petitioned for and received a charter from the Supreme Lodge authorising the establishment of a Chapter in the name of AHEPA Australia was deemed to be a Chapter of AHEPA Australia duly created and established and to be subject to the 1990 AHEPA Constitution and the 1990 AHEPA Regulations.

16. [26]

    Clause 23 dealt with petitions for formation of Chapters, and provided that a petition for the creation and establishment of a Chapter could be signed by members of AHEPA Australia and must be signed by not less than 16 men who were not members of any other Chapter. A petition was to be addressed to the grand secretary of the State where it was intended to establish the new Chapter. Each person signing the petition who was not already a member of AHEPA Australia was required to subscribe to “the fundamental purpose and objects” of AHEPA Australia. Under cl 24, every petition was to be accompanied by a signed application for membership by each petitioner who was not a member of AHEPA Australia. Each such application for membership was to be accompanied by the full fee and membership dues payable by new members.

17. [27]

    The power to grant charters to new Chapters was vested by cl 25 in the Supreme Lodge through its executive and the power to revoke charters of chapters was also invested exclusively in the Supreme Lodge. Under cl 27, a new Chapter was to be formally and officially established and chartered as a chapter of AHEPA Australia when not less than 16 of the petitioners who were not members of AHEPA Australia when they signed the petition had been duly initiated as members of AHEPA Australia and when the officers of the new Chapter had been elected and installed after the Supreme Lodge had issued its charter to the new Chapter.

18. [28]

    Clause 32 of the 1990 AHEPA Constitution provided that the jurisdiction, powers and duties of Chapters were to be “limited within the scope and spirit of” the 1990 AHEPA Constitution and the 1990 AHEPA Regulations, and at all times the officers and members, as a Chapter and as individuals, were to conduct themselves and exercise their powers in such a way and with such a demeanour as was best calculated to promote the best interests of the Chapter. The Chapters, officers and members were at all times required to respect the Supreme Lodge and Grand Lodges and their respective officers and to honour and carry out the proper directives of the Supreme Lodge or Grand Lodge.

19. [29]

    Clause 33 provided that the officers of a Chapter were to be the president, vice-president, secretary, treasurer, warden, prayer-reader, captain of the guard, inner-sentinel, outer-sentinel and five governors. Under cl 34, the executive of a Chapter was to consist of the president, vice-president, secretary and treasurer.

20. [30]

    Part VII of the 1990 AHEPA Constitution dealt with “trustees” and provided, in cl 35, that the Supreme Lodge, each Grand Lodge, each Chapter and each “auxiliary organisation” was to have the power to appoint trustees for the purpose of holding real or personal property. Such trustees could be vested with power to purchase, transfer, sell, rent, lease, borrow, mortgage, manage, improve or otherwise deal with property held in trust.

21. [31]

    The “Orders” of the Daughters of Penelope, the Sons of Pericles and the Maids of Athena, which are referred to below, appear to be the “auxiliary organisations” referred to in Part VII. The 1990 AHEPA Constitution referred to them as "Orders" although the 1990 AHEPA Regulations referred to "Chapters". That distinction may be because each of the “Orders” was to be organised into “Chapters” below “the Order”.

22. [32]

    Part VIII of the 1990 AHEPA Constitution dealt with the Daughters of Penelope. Under cl 37, the order of the Daughters of Penelope was to be the “the senior ladies’ Auxiliary organisation of the Order”. The provisions of Pt VI and Pt VII were to be applicable to Chapters in the Order of the Daughters of Penelope. The objects of the Daughters of Penelope were to assist, co-operate, encourage and promote the objects of AHEPA Australia. Under cl 40, members of the Daughters of Penelope in a State may form a District Lodge in their State, which was to be under the jurisdiction of the Supreme Lodge. District Lodges were to be governed by the same rules as those governing the Grand Lodges. District Lodges were to consist of such number as should be resolved and members were to be elected from members who were past presidents of Chapters of the Order of the Daughters of Penelope or past presidents of the Maids of Athena until they reach the age of 23 or join the ranks of “the senior organisation”. Under cl 42, the Chapters of the order of the Daughters of Penelope are to be subordinate to the District Lodges.

23. [33]

    Part IX dealt with the Order of the Sons of Pericles and consisted of cll 45 to 48 inclusive. The Order of the Sons of Pericles was to be “the junior organisation of [AHEPA Australia]”. Any boy over the age of 14 years and under the age of 21 years, who complied with s 5 of the 1990 AHEPA Constitution was to be eligible for membership in the Order of the Sons of Pericles. Under cl 47, the aims, objects and purposes of the Order of the Sons of Pericles were to be analogous to the objects of the Order of the Daughters of Penelope.

24. [34]

    Part X dealt with the Order of the Maids of Athena and consisted of cll 49 to 51 inclusive. Under cl 49, the Order of the Maids of Athena was to be the “junior auxiliary of the Order of the Daughters of Penelope” and was to have objects analogous to the objects of the Daughters of Penelope. The Maids of Athena were to be under the jurisdiction of the District Lodge of the Daughters of Penelope.

25. [35]

    Part XIV of the 1990 AHEPA Constitution dealt with “Order of AHEPA in the State of New South Wales”. Clause 64 in Pt XIV provided that, notwithstanding anything contained in the 1990 AHEPA Constitution, the Order of AHEPA in the State of New South Wales was to be governed by the rules then set out in Pt XIV. Those rules are set out in the Appendix and may relevantly be summarised as follows:

    1. (1)

       A register of members was to be kept showing the name, address and date of commencement of membership of each member;

    2. (2)

       The financial year was to conclude on 30 June;

    3. (3)

       The annual general meeting of members was to be held on the same date as the State Convention;

    4. (4)

       All monies received were to be deposited for the credit of the bank account of the Order of AHPEA in the State of New South Wales;

    5. (5)

       The officers of the Grand Lodge were to constitute the Management Committee and all accounts were to be presented to and passed for payment at a meeting of the Management Committee;

    6. (6)

       The auditor or auditors were to be elected at the annual general meeting;

    7. (7)

       Not less than three trustees were to be elected at a properly constituted general meeting and all property of whatever kind “belonging to the [Order of AHEPA in the State of New South Wales]” was to be vested in the trustees, who were to have custody of all deeds and documents of title relating to the property; and

    8. (8)

       In so far only as the provisions of Pt XIII of the 1990 AHEPA Constitution, which deals with “dissolution”, have not been applied or given effect to, “[the Order of AHEPA in the State of New South Wales]” was to be dissolved in the event of membership being less than three persons or upon the vote of a three quarters majority of members present at a special general meeting. Upon such a resolution being passed, all assets and funds “of the organisation” on hand were to be handed over to such registered or exempt charity or charities as a simple majority of the members may decide.

26. [36]

    The final provisions of the 1990 AHEPA Constitution consisted of additional rules of “the Order of AHEPA in the State of Victoria”. There does not appear to have been any evidence as to the structure or organisation of the Order of AHEPA in the State of Victoria. That detail does not appear to be relevant.

27. [37]

    The 1990 AHEPA Regulations set out the “Units of the Order of AHEPA”, in chronological order based on their foundation date, under the following headings:

28. [38]

    Part X of the 1990 AHEPA Regulations, which consisted of regs 104 to 114, dealt with new members of Chapters and application for membership. Under reg 104, an application for membership was only to be considered if proposed by a member in good standing. A member wishing to recommend a person for membership was required to submit to the secretary of his Chapter an application for membership in the prescribed form. Each application was to contain the names and addresses of three persons for reference. Upon receiving an application for membership, the secretary was required to present it at the next meeting the Chapter, which was required to refer it to the committee for interview and investigation as to the fitness of the applicant. The committee was required to report its findings to the Chapter and, upon receipt of the committee’s report, the application was to be referred by the Chapter to the Grand Lodge for approval.

29. [39]

    Under reg 108 of the 1990 AHEPA Regulations, upon approval being granted by the Grand Lodge, the name, address and occupation of each applicant, together with the name of the proposer, was to be circularised to the members, for the application to be balloted upon by secret ballot in the absence of the applicant. Regulation 109 provided that three votes against the application were to be deemed a rejection by the Chapter. The Chapter President was required to remind members that no member was to vote against an application because of personal, religious, political or commercial differences.

30. [40]

    Part XI of the 1990 AHEPA Regulations dealt with “members and unfinancial members” of Chapters. Under reg 115, a member who had neglected to pay dues assessed by the Chapter was to be an “unfinancial member”. An unfinancial member who was more than 12 months in arrears was to be allowed to attend meetings as a silent observer but was not to have the right to speak, vote or otherwise participate. Under reg 116, a member who was more than six months in arrears was to be listed as delinquent and if, within 30 days, failed to pay dues and give a reason for failure to pay, was to be suspended. A suspended member was not entitled to enjoy the rights, privileges or benefits of members. Provision was made in reg 118 for reinstatement of a suspended member.

31. [41]

    The regime described appears somewhat curious given that an unfinancial member is able to attend as a silent observer, after 12 months, but a delinquent member can be suspended if he or she has not paid after 6 months and is excluded from meetings entirely. It appears to have the effect that an unfinancial member may give an excuse for non-payment after 6 months and avoid suspension, but after 12 months, the sanctions for unfinancial members would continue to take effect, even if the member is not suspended.

32. [42]

    Regulation 120 of the 1990 AHEPA Regulations provided that a member in good standing could apply for affiliation with another Chapter. The application was to be endorsed by the secretary of the member’s Chapter, indicating that the applicant was in good standing. Under reg 121, a member may resign from AHEPA Australia upon paying arrears of dues and upon submitting a resignation to the secretary of the relevant Chapter.

33. [43]

    In October 2010, AHEPA Australia adopted a new constitution (the 2010 AHEPA Constitution) in conjunction with the change of its name to the “Australasian Hellenic Educational Progressive Association”. Under the 2010 AHEPA Constitution, AHEPA Australia was to be known as “Order of AHEPA” and was referred to in the 2010 AHEPA Constitution as “the Order”. The 2010 AHEPA Constitution was titled “Order of AHEPA Australasia Constitution”. Relevant parts of the 2010 AHEPA Constitution are set out in the Appendix.

34. [44]

    Part XIII of the 2010 AHEPA Constitution consisted of “Additional Rules of the Order of AHEPA in the State of New South Wales”. The introduction of Pt XIII provided as follows:

35. [45]

    In October 2010, the Order of AHEPA, describing itself as “the Order of AHEPA Australasia”, published revised bylaws (the 2010 AHEPA Bylaws). The 2010 AHEPA Bylaws consisted of 14 parts as follows:

36. [46]

    In 2017 AHEPA Australia Limited (AHEPA Limited) was incorporated as a public company limited by guarantee and a constitution was adopted in October 2017 (the 2017 AHEPA Constitution). Clause 1 of the 2017 AHEPA Constitution provided that the name of the company, “AHEPA Australia Limited”, was derived from “the Australian Hellenic Educational Progressive Association”, which was described as its “predecessor”. Under cl 3, AHEPA Limited was to be a not-for-profit public company limited by guarantee established to be, and continue as, a charity. Clause 4 provided that the mission of AHEPA Limited was to promote the Australian Hellenic ideal of education, philanthropy, civic responsibility, family and individual excellence.

37. [47]

    Part XIII of the 2017 AHEPA Constitution consisted of “Additional Rules of AHEPA in the State of New South Wales” in terms similar to, but not identical with, the terms of Pt XIII of the 2010 AHEPA Constitution. Thus, the preamble to Pt XIII of the 2010 AHEPA Constitution provided:

38. [48]

    It is clear that AHEPA Limited succeeded to AHEPA Australia, namely, the unincorporated organisation or association that had been known as “Australasian Hellenic Educational Progressive Association” since October 2010. That body had previously been known as “Australian Hellenic Educational Progressive Association” under the 1990 AHEPA Constitution.

The Trust Deed

1. [49]

   On 21 December 1981, Messrs Athanase Yenibs, Jason Finos, George Yiacoumi, Tasha Vanos and John Lynch (the Trustees), who were the registered proprietors of a parcel of land in Chippendale, New South Wales (the Chippendale land), executed a trust deed (the Trust Deed) whereby they declared that they held the Chippendale land upon trust for “the Order of AHEPA in the State of New South Wales”. The Trust Deed referred to the passing of resolutions by “the said Order” dealing with resignation of trustees and appointment of new trustees. The Trust Deed also referred to directions by “the said Order”, by means of resolution, concerning insurance and sale or mortgage of the Chippendale land. There is no material before the Court evidencing the rules or constitution of any organisation referred to in the Trust Deed as “the Order of AHEPA in the State of New South Wales”.

The Incorporation of the Association

1. [50]

   Against the above background, the Association was incorporated under the 1984 Associations Act. Section 8 of the 1984 Associations Act relevantly provided that an association that was eligible to be incorporated under the 1984 Associations Act may, by special resolution, authorise a person to incorporate the association under the 1984 Associations Act, approve a statement of objects of the proposed incorporated association and approve rules of the proposed association that comply with s 11 or approve the adoption of the model rules as the rules of the proposed incorporated association. The term “association” was defined in s 3 of the 1984 Associations Act as including a society, club, institution or other body. Section 11 relevantly provided that the rules of a proposed incorporated association would comply with s 11 if they made provision for the several matters specified in Sch 1 to the 1984 Associations Act and such other matters as may be prescribed. Under s 5, a resolution of an association was a special resolution if passed by a majority that comprised not less than three quarters of such members of the association as, being entitled to vote, voted at a general meeting of which not less than 21 days’ written notice had been given.

2. [51]

   A person authorised under s 8 of the 1984 Associations Act could make application to the Commissioner for the incorporation of the association. Under s 9, an application was required to be in the prescribed form. Section 10 relevantly provided that, where an application was made in accordance with s 9, the Commissioner was to incorporate the association under the 1984 Associations Act by granting a certificate of incorporation in respect of the association.

3. [52]

   Under s 15 of the 1984 Associations Act, on and from the date specified as the date of incorporation in a certificate of incorporation so granted, the persons who were the members of the association immediately before that date, together with any other persons who from time to time become members of the incorporated association, as from the time they become members, were to constitute an incorporated association by the name set out in the certificate, subject to any change of name effected in accordance with s 14. Under s 15(2), the incorporated association was to be capable of performing all the functions of a body corporate, was capable of suing and being sued, was to have perpetual succession and was to have power to acquire, hold and dispose of property.

4. [53]

   Under s 15(3), Sch 2 of the 1984 Associations Act had effect in relation to an incorporated association. Clause 2 of Sch 2 relevantly provided that, on the incorporation of an association under the 1984 Associations Act:

5. [54]

   On 20 January 1993, a certificate of incorporation of association was issued by the Director of the Department of Consumer Affairs. The certificate certified that, on and from 20 January 1993, the Association, referred to as “Order of AHEPA NSW Incorporated”, was incorporated under the 1984 Associations Act. At that time, the Association became governed by an instrument entitled “Rules of Order of AHEPA NSW Incorporated” (the 1993 Rules of the Association). Relevant parts of the 1993 Rules of the Association are set out in the Appendix. While there is correspondence from the Commissioner dated 20 January 1993 referring to an application to incorporate the Association, the application itself was not in evidence. Accordingly, it is not possible to determine the identity of the relevant “society, club, institution or other body” that was incorporated under the 1984 Associations Act.

6. [55]

   Part I of the 1993 Rules of the Association was titled “Interpretation” which contained rr 1 and 2. Rule 1 set out certain definitions and r 2 provided that the objects of the Association were to be:

7. [56]

   The 1993 Rules of the Association contained no definition of the phrase “the unincorporated association”. The Dissenting Members rely on the identity of objects as indicating that “the unincorporated association” was a reference to AHEPA Australasia. There was no evidence that there was an organisation in New South Wales separate or different from “the Australian Hellenic Educational Progressive Association in the State of New South Wales” as referred to in Part XIV of the 1990 AHEPA Constitution. While the further objects of the Association go well beyond the 1990 AHEPA Constitution and represent a point of distinction between the Association and AHEPA Australia, it is difficult to discern, in the similarity itself, a basis on which to resolve the questions raised in the appeal.

8. [57]

   Clearly enough, however, the object of taking over the funds and other assets and liabilities of the organisation referred to as “the presently unincorporated association” anticipated the effect of s 15(3) and Sch 2 of the 1984 Associations Act, namely, that the assets of “the presently unincorporated association” were to be vested in the association intended to be incorporated under the 1984 Associations Act and the rights and liabilities of “the presently unincorporated association” were to become the rights and liabilities of the newly incorporated association. Further, the newly incorporated association was to adopt the objects of that “presently unincorporated association”.

9. [58]

   A difficulty in the proceedings before the primary judge and in the appeal is that there was no evidence of any rules or constitution regulating or governing an organisation known as “the Australian Hellenic Educational Progressive Association in New South Wales”. Nor was there evidence of any rules or constitution governing or regulating an organisation known as “the Order of AHEPA New South Wales”. The only evidence as to the existence of rules or a constitution regulating or governing such an organisation consisted of the 1990 AHEPA Constitution and the 1990 AHEPA Regulations, in particular, Pt XIV of the 1990 AHEPA Constitution. It is, however, reasonable to conclude that, as at 20 January 1993, when the Association was incorporated under the 1984 Associations Act, a section of AHEPA Australia was known as “Order of AHEPA in the State of New South Wales” and was governed by Pt XIV of the 1990 AHEPA Constitution.

10. [59]

    The relationship between the organisation referred to in the Trust Deed and AHEPA Australia, which was the subject of the 1990 AHEPA Constitution, is not entirely clear. However, it is clear enough that the organisation referred to in the Trust Deed is the same organisation as is referred to in Pt XIV of the 1990 AHEPA Constitution. Thus, the object of the Association, to take over the assets and liabilities of “the trustees of the unincorporated association”, must be understood as referring to the Trustees and their assets and liabilities acquired pursuant to the Trust Deed and the performance of their duties and obligations under the Trust Deed. It follows that “the unincorporated association” referred to in the 1993 Rules of the Association was the organisation referred to in the Trust Deed on whose behalf the Trustees held property.

11. [60]

    Rules 1 and 2 of the 1993 Rules of the Association referred to above were contained in Pt I, which dealt with “Interpretation”. The numbering of the rules commenced again in Pt II and continued from rr 1 to 48 under the following headings:

12. [61]

    Rule 1 in Pt II provided as follows:

13. [62]

    The 1993 Rules of the Association were updated in 2003 and a document was published as the rules of “Order of AHEPA NSW Incorporated” (the 2003 Rules of the Association). The 2003 Rules of the Association included two additional definitions in r 1 in Pt I as follows:

14. [63]

    The objects in r 2 of Pt 1 remained unaltered. Apart from renumbering, rr 3(1), 3(2), 4 and 8 in the 2003 Rules of the Association, being the rules previously numbered rr 1, 2, 3 and 7 in Pt II in the 1993 Rules of the Association, remained substantially unaltered, save for the rule dealing with “nomination for membership” and the rules relating to the committee of the association.

15. [64]

    Under the 1993 Rules of the Association, nomination of a person for membership of Association was to be made by a member of the Association in a prescribed form and was to be lodged with the Secretary of the Association. The Secretary was then required to refer the nomination to the Committee, which was to determine whether to approve or to reject the nomination. Where the Committee determined to approve a nomination, the Secretary was to notify the nominee of the approval and request the nominee to pay the sum payable under the Rules by a member as entrance fee and annual subscription. On payment of that amount, the Secretary was required to enter the nominee’s name in the register of members and, upon the name being surrendered, the nominee became a member of the Association.

16. [65]

    Under the 2003 Rules of the Association, nomination of a person for membership of the Association was to be made in writing by “the secretary of the unit of the unincorporated association nominating the person for membership” and was to be lodged with the Secretary of the Association. After receiving the nomination for membership, the Secretary was to refer the nomination to the Committee “for endorsement by the Committee”. The Secretary was required to notify the nominee and request the nominee to pay the sum payable under the Rules as entrance fee. On payment by the nominee of that amount, the Secretary was required to enter the nominee’s name in the register of members and, upon the name being entered, the nominee became a member of the Association.

17. [66]

    There were two relevant changes in language. First, nomination was to be made by “the secretary of the unit of the unincorporated association” nominating the person rather than by “a member of the Association”. The only reference to “unit” is to be found in the 1990 AHEPA Constitution and the 1990 AHEPA Regulations. Thus, at the very least, Grand Lodges, District Lodges and Chapters were Units. It is unclear whether the National Convention and the State Convention, referred to in the 1990 AHEPA Constitution as “Units” were intended to be Units for the purposes of the 2003 Rules of the Association.

18. [67]

    Secondly, in lieu of the Committee of the Association determining whether to approve or to reject a nomination, the function of the Committee under the amended provision was simply “endorsement” of the nomination. That suggests that the Committee was no longer to have a discretion to reject an application for membership.

19. [68]

    There were also amendments to those parts of the Rules dealing with the office bearers and the Committee of Management of the Association. [2] The amendments introduced references to the Grand and District Presidents of the “unincorporated association” and provided that the individuals holding these positions would automatically be appointed as office bearers of the Association. Those amendments have some significance in indicating subservience of the Association to AHEPA Australia and the identity of “the unincorporated association”. The relevant provisions of the 1993 Rules of the Association and their successor provisions in the 2003 Rules of the Association are included in the Appendix. The most notable change was to r 14, which dealt with the “election of members” to the Committee of Management. Rule 14 was replaced by an entirely new provision in 2003 (numbered r 15). This new provision added significantly more detail about the role of Grand and District Presidents of the “unincorporated association” in the management of the Association.

20. [69]

    In 2005, the 2003 Rules of the Association were amended by the deletion from r 3(1) [3] of the proviso, under which, until such time as a person had been a financial member of the unincorporated association continuously for three years, such person was to be deemed to be an associate member and could not participate in elections until the expiry three years from the date of joining. In 2010, that provision was amended again by reinstating the proviso in different terms, such that, until such time as a person had been a financial member of the unincorporated association on the 30th June of the last financial year, such person was to be deemed to be an associate member and was not to participate in elections or resolutions. That is to say, the concept of “an associate member” was reintroduced but with a shorter period of up to one year, depending upon when a person became a member.

21. [70]

    Amendments made at general meetings of the Association held in 2005, 2007 and 2010 were not registered with the Department of Fair Trading until March 2018 and, therefore, did not take effect until then. Those amendments were registered following earlier proceedings in the Equity Division concerning the Association. Relevant parts of the rules amended 2005 and 2010 are set out in the Appendix to these reasons. In 2018, a consolidated version of the rules of the Association was prepared and is accepted by the parties as a correct statement of the form of the rules governing the Association at that time (the 2018 Rules of the Association).

Disputed Amendment of the 2018 Rules of the Association

1. [71]

   On 22 October 2018, the Committee of Management of the Association sent to the members of the Association notice of a proposed special general meeting to be held on 13 November 2018. The purpose of the meeting was to consider a resolution that the constitution circulated to all members with the notice be adopted in lieu of the current rules of the Association. The meeting convened by the notice proceeded in accordance with the notice as the 2018 November Meeting.

2. [72]

   The minutes of the November 2018 Meeting record that 369 votes were cast, 290 being in favour, 78 being against and one being an abstention or blank. The minutes record that one of the scrutineers announced that 78.6 per cent of the votes cast were in favour of the motion. The scrutineer also referred to disputed votes to which reference will be made below. The President of the Association, who was the chair of the November 2018 meeting, then declared the motion carried and the meeting was closed. The constitution circulated with the notice of 22 October 2018 (the 2018 Constitution of the Association) was subsequently registered with the Department of Fair Trading.

3. [73]

   On 10 January 2019, the Secretary of the Association sent to all members of the Association notice of the annual general meeting of the Association to be held on 28 January 2019. The notice referred to motions from the Committee of Management of the Association, which included a proposal that the Management Committee be authorised to proceed with “the lease and works agreed with the Council regarding Bexley North Bowling Club” and a proposal that the Committee of Management be authorised to perform all such acts and do all such things as appear to the Committee of Management to be necessary or convenient “to finance the development of the project, including construction of any new buildings in Bexley North Bowling Club as well as to execute any joint venture, lien, mortgage or sell any property of the Association as may become necessary for the completion of the project”.

4. [74]

   The proceedings that give rise to this appeal were then commenced by originating process filed on 24 January 2019. The Dissenting Members sought to restrain the Association from proposing the resolutions in the notice of 10 January 2019. Although the meeting took place, the resolutions were not proposed at the meeting, by reason of interim orders made in the proceedings.

5. [75]

   On 11 February 2019, notice was given to all members of a proposed general meeting of the Association to be held on 28 February 2019. The business of the meeting was, first, to consider an information memorandum attached to the notice (the Information Memorandum), secondly, to resolve to authorise the Committee of Management to proceed with negotiations with the Council regarding the Bexley North Bowling Club site and, thirdly, to authorise the Committee of Management to obtain funds not exceeding $7 million for “the construction and completion of stage one of the project”.

6. [76]

   The general meeting convened by the notice of 11 February 2019 was held on 28 February 2019 in accordance with the notice as the February 2019 Meeting. At the February 2019 Meeting, 189 votes were cast, of which 137 (72.5 per cent) were in favour of the motion and 52 (27.5 per cent) were against. The motion was declared carried. On 8 March 2019, the amended originating process was filed by the Dissenting Members seeking amended relief in relation to the resolutions purportedly passed at the February 2018 Meeting.

The reasons of the Primary Judge

1. [77]

   The primary judge concluded that the reference in the 2018 Rules of the Association to “unincorporated association” was a reference to the Order of AHEPA in the State of New South Wales as referred to in the Trust Deed and in Pt XIV of the 1990 AHEPA Constitution. Her Honour considered that the definition appeared to have been largely overlooked in subsequent amendments to, and application of, the rules of the Association. Her Honour considered that, in its original sense, “unincorporated association” in r 3 referred to the Order of AHEPA in the State of New South Wales, as it existed prior to the incorporation of the Association in 1993. That is to say, it was a reference to an organisation that preceded the Association’s incorporation and, in effect, became the Association by reason of incorporation under the 1984 Associations Act.

2. [78]

   The primary judge considered that the term “unincorporated association” had come to mean “the Chapters” as a result of the loss, for a period of time, of the 1993 Rules of the Association, the development of a practice of assembling the register of members of the Association each year based upon the lists of the financial members submitted by the Chapters to the State Convention, the recasting of the Rules of the Association into the 2003 Rules of the Association to record that practice and the further amendments to the Rules of the Association in 2005 and 2010. Whether one refers to the Chapters as the “Chapters of The Order of AHEPA Australasia” or “Chapters of AHEPA NSW”, her Honour characterised the Chapters as unincorporated associations in their own right or sometimes incorporated entities, who were affiliated with other unincorporated or incorporated entities in the framework provided by the 1990 AHEPA Constitution. Her Honour concluded that r 3(1)(a) of the 2018 Rules of the Association referred to those Chapters and that r 3(1)(b) [4] was “essentially a vestigial limb, reminiscent of the incorporation of [the Association] in 1993, when ‘unincorporated association’ meant something else.”

3. [79]

   The primary judge considered that the proviso inserted [5] into r 3(1) operated only with respect to the text immediately preceding it and did not apply to r 3(2). [6] Her Honour considered that, if a person had been a financial member of a Chapter on 30 June of the last financial year, that person was entitled to be a member of the Association, without further ado, and to vote, but for a finite period of time, being until the register of members was updated after the end of the next financial year. Her Honour held that the Association did not need to, and indeed was not permitted to, exercise its own corporate mind, through a general meeting or the Committee of Management, and decide not to add such a person as a member or not to allow such a person to vote if the person met that criterion.

4. [80]

   The primary judge held that r 3(2)(b) constituted “a second pathway” for new members, albeit diminished by what her Honour characterised as “the ham-fisted amendments” to the Rules of the Association in 2003, which, her Honour held, eliminated “a pathway for such members” through r 3(1)(b). Her Honour observed that applicants for membership through the process of nomination referred to in r 4 [7] and approval of the Committee of Management of the Association are “qualified”, as referred to in r 3(2) rather than being “entitled”, as referred to in r 3(1). Her Honour considered that “entitled” suggested that a person had a present right to be a member while “qualified” suggested that a person had fulfilled the prerequisites to become a member but did not necessarily have the right, without more, to become a member. Her Honour considered that that “subtle difference in terminology” may reflect the fact that, through “the second pathway”, the Association was making the decisions and taking the action necessary to make such an applicant a member rather than following the dictates of the Chapters. Nevertheless, her Honour was reluctant to read too much into “subtleties of language” in a document that had been “crudely amended” over time without consequential amendments to ensure that the document remained consistent.

5. [81]

   The primary judge considered that members joining the Association through the “second pathway” did not have a temporal limit on their membership, in that it did not fall to be determined again by the Chapter at the end of the next financial year. Her Honour held that the differences between “these pathways” was simply the result of a series of amendments to “one pathway” and not the other. Her Honour eschewed any necessity, in construing the 2018 Rules of the Association, to ensure that “the pathways” were comparable or fair. Rather, her Honour considered that her task was simply to say what the 2018 Rules of the Association mean.

6. [82]

   The primary judge observed that r 4(1) says nothing about a nominee having been “initiated” as a member of the Chapter, although her Honour considered it was reasonable to think that the secretary of a unit would not nominate someone to be a member of the Association unless that secretary was also content for that person to be a member of the Chapter. Her Honour referred to a document entitled “Ritual of Ceremonies”, first circulated in 2001, consisting of nine pages of detailed instructions for an initiation, including semi darkness, lit candles, the Bible, statuary and an apparently elaborate and lengthy ceremony. Her Honour referred to evidence that that process was used in each of the Chapters and that the ceremony takes at least an hour. Her Honour observed that the 2003 Rules of the Association say nothing about the adherence to such rituals at the Chapter level before a nomination for membership of the Association was valid.

7. [83]

   The primary judge concluded that applicants for membership, whose nominations were submitted on 9 October 2018 and endorsed by the Committee of Membership on 11 October 2018 and whose names were entered on the register of members a few days later became members of the Association in accordance with r 3(2)(b) on entry into the register. That is the critical conclusion to which the Dissenting Members take exception.

The Questions in the Appeal

1. [84]

   The primary question in the appeal concerns the validity of the resolutions adopting the 2018 Constitution of the Association purportedly passed at the November 2018 Meeting. That depends upon the meaning and effect of the provisions contained in Pt II of the 2018 Rules of the Association concerning membership, which consisted of rr 3 to 12 inclusive. Those provisions must be construed against the background of earlier forms of the Rules going back to the 1993 Rules of the Association.

2. [85]

   The dispute concerning the validity of the resolution adopting the 2018 Constitution of the Association concerns the purported admission of new members of the Association who, the Dissenting Members contend, were not eligible for membership of the Association. It is necessary, before considering the contentions of the parties, to examine the language of the relevant provisions of the 2018 Rules of the Association.

3. [86]

   Part I of the 2018 Rules of the Association deals with “PRELIMINARY”. Rule 1(2) contains the following relevant definitions:

4. [87]

   Part II, which consists of rr 3 to 12, deals with “MEMBERSHIP”. Rule 3 deals with “MEMBERSHIP QUALIFICATIONS” and r 4 deals with “NOMINATION FOR MEMBERSHIP”.

5. [88]

   Rule 3(1) provides that any person who has:

6. [89]

   Rule 3(2) provides that a person is qualified to be a member of the Association if but only if:

7. [90]

   Under r 4(1), a nomination for membership of the Association is to be made by the Secretary of the unit of the unincorporated association nominating the person for membership of the Association and must be lodged with the Secretary of the Association. Rule 4(2) provides that the Secretary must refer the nomination to the Committee for endorsement by the Committee. Part III of the 2018 Rules of the Association, which consists of rr 13 to 22, deals with “THE COMMITTEE” referred to in r 4. Under r 4(3), the Secretary must notify the nominee of the referral and request the nominee to pay the sum payable by a member as an entrance fee under r 9(1). Under r 4(4), the Secretary must, on payment by the nominee of the sum payable under r 9(1), enter the nominee’s name in the register of members and, upon the name being so entered, the nominee becomes a member of the Association. Under r 9(1), a member of the Association must, upon admission to membership, pay $1 or, where some other amount is determined by the committee, that other amount. Under r 5(1), a person ceases to be a member of the Association if the person is an unfinancial member of the unincorporated association for a consecutive period of two fiscal years.

8. [91]

   Under r 8, the Public Officer of the Association must establish and maintain a register of the Association. The Register must specify the name and address of each person who is a member of the Association together with the date on which the person became a member.

9. [92]

   Part III, which consists of rr 13 to 22, deals with “THE COMMITTEE”. Under r 13(1)(d), the Committee must not sell, purchase, mortgage, charge, lien, borrow, lend, encumber or create any liabilities without approval first having been received by a special resolution made at the general meeting.

10. [93]

    Under r 14(1), the Committee is to consist of:

11. [94]

    Rule 15 deals with “Election of Members”. Under r 15(1):

12. [95]

    Rule 15(2) provides that the duly elected Grand President of the unincorporated association is automatically appointed as the President of the Association and the duly elected District President of the unincorporated association is automatically appointed as the Vice-President of the Association.

13. [96]

    Rule 15(3) provides that the nomination of the member from each Chapter of the unincorporated association under r 15(1)(c) is to occur by way of an election process conducted by each of the respective Chapters of the unincorporated association in the month of October and advised in writing to the Secretary by the secretary of the Chapter of the unincorporated association within 14 days of the election. The Vice-Presidents of the Grand and District Lodges of NSW of the unincorporated association are to be alternate members for the Association.

14. [97]

    Under r 15(4A) each Chapter of the unincorporated association, together with the committee member elected under r 15(3), must elect an alternate member who may assume all the duties of the elected member in the absence of the elected member at any meeting of the Committee. Under r 15(4B), the Vice-Presidents of the Grand and District Lodges of NSW of the unincorporated association are to be alternate members for the Association.

15. [98]

    Rule 15(9) provides for a casual vacancy occurring for any of the following:

16. [99]

    The amended notice of appeal filed on behalf of the Dissenting Members on 21 January 2020 contains 26 grounds, some of which were not pressed. Many of those grounds contain subparagraphs. The written submissions lodged on behalf of the Dissenting Members identified five issues as follows:

    1. (1)

       interpretation of r 3 of the 2018 Rules of the Association:

    2. (2)

       whether the November Constitution was validly adopted;

    3. (3)

       whether the February resolution is invalid;

    4. (4)

       whether the proposed January resolutions should be permanently enjoined;

    5. (5)

       whether the secretary and treasurer of the Association were validly appointed.

17. [100]

    The submissions identified 19 alleged errors on the part of the primary judge. In order to assist in comprehending the grounds intended to be raised, the Dissenting Members were directed to provide a written summary of their submissions on the construction of the 2018 Rules of the Association. In compliance with that direction, the Dissenting Members provided a summary raising the following propositions:

18. [101]

    The Association relied on an amended notice of contention of 29 January 2020 raising nine grounds of contention.

19. [102]

    Two principal questions arise. The first principal question concerns the meaning of the phrase “the unincorporated association” in r 3(1) of the 2018 Rules of the Association. The Dissenting Members contend that references to “the unincorporated association” are to be understood as references to the New South Wales Chapters of AHEPA Australia, or their successors. They say that “the unincorporated association” when used in r 3 refers to AHEPA Australia to the extent that that organisation is situated in New South Wales, since no other entity has financial and unfinancial members, active or inactive chapters, a Grand Lodge, a Grand President and Vice-President, a District Lodge, a District President and Vice-President or a constitution and rules. They assert that that is the only way that "the unincorporated association” referred to in the 2018 Rules of the Association could have continued to exist after the incorporation of the Association in 1993 under the 1984 Associations Act. They assert that a person cannot be a member of the Association unless that person is a member of one of the Chapters that is embraced by the term “the unincorporated association”. On the other hand, a member of a Chapter will not necessarily be a member of the Association.

20. [103]

    The second principal question is whether the requirements of rr 3(1) and 3(2) are cumulative. The Dissenting Members contend that the membership qualifications described in r 3 of the 2018 Rules of the Association are cumulative rather than separate or alternative grounds for eligibility. If they are correct in the construction for which they contend, there were significant numbers of purportedly new members of the Association who were permitted to vote at the November 2018 meeting but who were not eligible to be members of the Association. That is to say, eligibility for membership requires that the person is a financial member of the unincorporated association and agrees to be bound by the code of ethics and rules of the unincorporated association, subject to the proviso that, until such times as a person has been a financial member of the unincorporated association from 30 June of the last financial year, the person is to be deemed to be an associate member and is not to participate in elections or resolutions. In addition, any person who is so entitled to be a member may only become a member if s 15 of the 1984 Associations Act applies or the person has been nominated in accordance with r 4 of the 2018 Rules of the Association and has been approved by the Committee.

21. [104]

    The Association advances five propositions in response to the contentions relied upon by the Dissenting Members. First, the Association says, the 2018 Rules of the Association must be read in the context of their genesis in the 1993 Rules of the Association. Thus, it contends that rr 3 and 4 of the 2018 Rules of the Association must be construed in the light of the membership provisions in them, which, the Association contends, identified two pathways. The first pathway, based on the phrase “entitled to be a member”, was that established members of the former unincorporated association, the Order of AHEPA in the State of New South Wales, would be “entitled” automatically to become members of the incorporated Association. The second pathway was a mechanism for the nomination and approval of new members chosen by the Association itself as a separate incorporated entity.

22. [105]

    The second proposition is that the former unincorporated association ceased to exist upon the incorporation of the Association in 1993 as a consequence of the statutory provisions of the 1984 Associations Act. The Association says that the documentation recognised that, following the incorporation of the Association, the Association was “the Order of AHEPA in the State of New South Wales”. They refer to Pt XIII of the 2010 Constitution of AHEPA Australasia and the 2017 AHEPA Constitution.

23. [106]

    The third proposition is that the Association is not and has never been subordinate to AHEPA Australia, AHEPA Australasia or AHEPA Limited. They say that the constitutions of the Association, and of AHEPA Australia, AHEPA Australasia and AHEPA Limited have consistently, since the incorporation of the Association in 1993, made it clear that the constitution of the Association would prevail to the extent of any inconsistency. They point to the following:

24. [107]

    The fourth proposition is that the resolutions put before the members at the November 2018 meeting achieved the requisite 75 per cent special majority and any person whose name had not yet been entered on the Register of members of the Association was not actually a member, consistently with the Corporations Act and the 2018 Rules of the Association. Therefore, the Association contends, there is no basis for the complaint that members were excluded from voting and their exclusion was not an irregularity, let alone a substantive irregularity. The Association says that, even if there were procedural irregularities, the Dissenting Members did not satisfy the onus of establishing the existence of any relevant substantial injustice as required by s 1322(2) of the Corporations Act.

25. [108]

    The fifth proposition is that there was no basis for the relief claimed by the dissenting members in respect of the membership provisions and membership requirements of the Association. Relevantly, prayers 10C and 10D of the Dissenting Members’ amended originating process sought declarations as follows:

26. [109]

    The Association contends that there was no basis for that relief for three reasons. The first is that, as accepted by the Dissenting Members before the primary judge, AHEPA Limited was incorporated in 2017 and could not be the same entity as the unincorporated organisation or association known as the Order of AHEPA Australasia. Second, they say, even if the references to “unincorporated association” in r 3(1) of the 2018 Rules of the Association might be capable of being construed as a reference to the chapters of AHEPA Australasia that are geographically located in New South Wales, it is not possible to view them as references to a company limited by guarantee, as AHEPA Limited is, which is an entirely different entity. Finally, the Association contends, the so called “second pathway” to membership, provided for in r 3(2) of the 2018 Rules of the Association, is relevantly unaffected by any such arguments because the expression “unincorporated association” does not appear in r 3(2) and because the proviso in r 3(1) operates and can only operate in relation to the “first pathway” in r 3(1).

27. [110]

    The question of the meaning of the phrase “the unincorporated association” as it appears in the 1993 Rules of the Association and the 2018 Rules of the Association is not without difficulty. The primary judge found that the reference in the 1993 Rules of the Association to the “unincorporated association” was to the entity referred to in the Trust Deed and Pt XIV of the 1990 AHEPA Constitution, namely, “The Order of AHEPA in the State of New South Wales”. [8] However, I have reached a different conclusion as to the nature of that entity.

28. [111]

    A critical aspect of the primary judge’s decision was the finding that that the Chapters, Grand and District Lodges and State Convention were not subordinate units of a national body, but distinct entities in their own right, not established by the national body but predating it. [9] Upon review of the 1990 AHEPA Australia Constitution and Regulations, her Honour considered that there were a number of unincorporated associations in The Order of AHEPA at that time, at least consisting of Chapters, “The Order of AHEPA in New South Wales, The Order of AHEPA Australasia and likely other unincorporated associations”. [10] Accordingly, the various Constitutions and Regulations of AHEPA Australia merely documented an affiliation or federation of numerous unincorporated associations as opposed to creating one unincorporated association. Whether one refers to the Chapters as the Chapters of The Order of AHEPA Australasia or Chapters of AHEPA NSW was, her Honour held, merely an exercise in semantics: the Chapters were unincorporated associations in their own right (or, sometimes, incorporated entities) who were affiliated with other unincorporated (or incorporated) entities in the framework provided by the Constitution of The Order of AHEPA Australasia. [11]

29. [112]

    Her Honour did not consider that in 1993 it was the Chapters (which were unincorporated in 1993) that constituted, and now constitute, the “unincorporated association” as referred to in the objects contained in r 2 of Pt I of the 1993 Rules of the Association. [12] Rather, the primary judge found that the unincorporated association was the Order of AHEPA in the State of New South Wales, which ceased to exist apart from the Association following its incorporation in 1993, [13] with the Grand Lodge, District Lodge, State Convention and NSW Chapters presumably continuing as unincorporated entities. [14]

30. [113]

    As indicated above, [15] the primary judge found that the term “unincorporated association” in r 3(1)(a) of the 2018 Rules of the Association had come to mean the Chapters. On the other hand, her Honour held that r 3(1)(b) was essentially a “vestigial limb”, reminiscent of the incorporation of AHEPA NSW in 1993, when “unincorporated association” meant something else, namely the unincorporated predecessor of the Association. [16] I consider that there are two elements in her Honour’s conclusion that are erroneous. The first concerns the Chapters and how they fit within the scheme of AHEPA. The second relates to the nature of the entity referred to as the “Order of AHEPA in New South Wales”.

31. [114]

    The primary judge was correct in concluding that unincorporated association had come to refer to Chapters in the sense described above, such that Chapter membership satisfied the requirement for membership of the “unincorporated association”. [17] However, that conclusion is correct only in so far as membership of the Chapters is the same as membership of AHEPA Australia, because the latter is the unincorporated association.

32. [115]

    There are two reasons why “the unincorporated association” could not refer to the Chapters alone, as somehow distinct from AHEPA Australia. First, that would be inconsistent with r 15 of the 2018 Rules of the Association, which refers to the Grand President and the District President as “office bearers” of “the unincorporated association”. On the available evidence, the only entities that have office bearers corresponding to those titles are the Grand and District Lodges, which are bodies regulated within, and seemingly subordinate to, AHEPA Australia.

33. [116]

    Secondly, the Chapters are subordinate “Units” of the organisation regulated by the 1990 AHEPA Constitution and the 1990 AHEPA Regulations and have no independent existence separate from that organisation. I consider that the primary judge erred in concluding that the “Units” were not subordinate to their parent body, AHEPA Australia; the constituent “Units” were subordinate. [18]

34. [117]

    The impugned 2018 Constitution of the Association seeks to vest in the Grand Lodge of NSW a measure of control with respect to Chapters located in NSW similar to that of AHEPA Australia, thereby rendering those Chapters subordinate to the Grand Lodge of NSW. Thus, a survey of the 1990 Constitution and Regulations of AHEPA Australia indicates that the Chapters were subordinate to AHEPA Australia. Under the 1990 AHEPA Constitution and Regulations, a petition for the establishment of a Chapter may be made by not less than 16 men or, in the case of a Daughters of Penelope Chapter, women, who are not members of any other Chapter. The power to grant a charter to a new Chapter was vested in the Supreme Lodge, with a right of appeal to the National Convention. The power to revoke the charter of a Chapter is vested exclusively in the Supreme Lodge. A new Chapter is established and chartered as a Chapter of the Order of AHEPA Australia when not less than 16 of the petitioners who were not members of the Order of AHEPA Australia when they signed the petition are duly initiated as members of the Order of AHEPA Australia, the officers of the new Chapter are elected and installed and the Supreme Lodge has issued a charter to the new Chapter. Each person signing a petition to establish a new Chapter was required to subscribe to the fundamental purpose and objects set out in the 1990 AHEPA Constitution and to meet the requirements for membership prescribed in the 1990 AHEPA Constitution. All members of the Order of AHEPA Australia are required to subscribe to the 1990 AHEPA Constitution and obey the authorities of AHEPA Australia.

35. [118]

    That is to say, the establishment of a Chapter takes effect by force of the rules of the principal institution, AHEPA Australia, subsequently AHEPA Limited. The suspension and reinstatement of members of Chapters is governed by Pt XI of the 1990 AHEPA Regulations and the 1990 AHPEA Constitution required that each member of the Order of AHEPA Australia was required to be a member of a Chapter. The National Convention has the power to legislate for the entire Order of AHEPA Australia including by amending the 1990 AHEPA Constitution and the 1990 AHEPA Regulations. Membership of a Chapter is changed in accordance with the rules of the principal institution, the Order of AHEPA Australia, and it is important that an individual cannot be a member of a Chapter except as a member of AHEPA Australia. The mutual rights and obligations of the members of a Chapter spring from the rules of the principal institution, AHEPA Australia, and cannot be altered except as those rules provide. The purposes that the members of a Chapter have in common are the purposes for which they are members of the principal institution, AHEPA Australia. [19]

36. [119]

    Clause 5 of the 1990 AHEPA Constitution sets out religious and ethical requirements for members of AHEPA Australia. [20] The government of AHEPA Australia, and subsequently AHEPA Limited, is divided between the Supreme Lodge and the National Convention, with national jurisdiction, the Grand and District Lodges and State Conventions, with state-wide jurisdiction, and the Chapters. The Chapters are subordinate to the Supreme Lodge and the National Convention, the Grand and District Lodges and the State Convention. Thus, the government of the principal institution, AHEPA Australia, is divided amongst various units and the subordinate Chapters. [21]

37. [120]

    The affairs of the principal institution, AHEPA Australia and subsequently AHEPA Limited, are directed and controlled by the National Convention, which is composed of representatives from the Supreme, Grand and District Lodges and of the Chapters. The National Convention has the power to enact laws and regulations for the government of the principal institution and subordinate Chapters. [22]

38. [121]

    The Supreme Lodge of AHEPA Australia has the power to interpret and enforce the Constitution and Regulations, the power to determine whether an act constitutes an act of subordination, contravention of the Constitution or breach of the Regulations and power to prescribe disciplinary action be taken and power to adjudicate and settle disputes between Chapters, auxiliaries, members or between any of them. The Supreme Lodge is in effect the executive arm. [23]

39. [122]

    The subordinate Chapters are grouped into districts, namely, States, each having a State Convention, a Grand Lodge and possibly a District Lodge. Each District Lodge consists of delegates elected by the Chapters. Suspensions, resignations, expulsions and the like can be determined by Chapters but there is a right of appeal to the Grand or District Lodge and then a right of appeal to the Supreme Lodge and from there to the National Convention. [24]

40. [123]

    Each member of AHEPA Australia must be a member of a Chapter. Applications for membership are submitted to the secretary of a Chapter and candidates for membership must sign an application form for admission as prescribed by the Regulations. Any person rejected from one Chapter may reapply to that Chapter or may apply to another Chapter after six months but cannot apply to another Chapter until that period has expired.

41. [124]

    Resignation from AHEPA Australia or AHEPA Limited is effected by submitting a resignation in writing to the secretary of the member’s Chapter. Suspension or resignation from the Chapter disentitles a member from enjoying any of the rights, privileges or benefits of members. Members belonging to one Chapter may affiliate with another Chapter or may transfer to another Chapter. Each Chapter has the power and authority to act within its own jurisdiction, and amongst its own members, to enforce the Constitution of AHEPA Australia and the Regulations, all measures, resolutions, mandates and decrees of the National Convention and the State Convention, power to enforce the Constitution and the Regulations of AHEPA Australia, to determine in accordance with the provisions and procedures prescribed in the regulations whether an act constitutes an act of insubordination and power to prescribe disciplinary action. However, the jurisdiction, powers and duties of the Chapters are limited within the scope and spirit of the Constitution and the Regulations of AHEPA Australia and AHEPA Limited. The Chapters must not violate or encroach upon the power or jurisdiction of the Supreme Lodge or Grand Lodges and the Chapter officers and members are required to honour and carry out the proper directives of the Supreme Lodge or Grand or District Lodge.

42. [125]

    As a general rule, all property acquired by an independent voluntary association belongs to the members jointly and, while it is a going concern, the members have such individual rights with respect to the property as the social compact constituted by the rules or constitution of the association provides. However, in the case of a subordinate Chapter created under and regulated by the rules of AHEPA Australia or AHEPA Limited, a Chapter is not governed by a contract peculiar to the members of the principal institution of whom it is composed. The Chapter does not exist to enable those members to pursue their common ends in an exclusive society of their own. Rather, it consists of a group of members of the principal institution, AHEPA Australia or AHEPA Limited, who, as such members, and in accordance with the 1990 AHEPA Constitution and the 1990 AHEPA Regulations, are organised under the authority of the ultimate governing body of the organisation. Since a Chapter is constituted by the authority of the principal institution to the furtherance of the purposes of the principal institution, namely, AHEPA Australia or AHEPA Limited, the presumption would be that any property acquired by a Chapter is acquired for that principal institution. [25]

43. [126]

    The primary judge held that the Chapters, the Grand Lodges, the District Lodges and the State Convention were distinct entities in their own right, not subordinate units of a national body established by the national body but predating it and with an independent existence. Her Honour considered that the Constitution of AHEPA Australia and AHEPA Australasia documented an affiliation or federation of unincorporated associations rather than creating one unincorporated association. Further, her Honour considered that the fact that some of those unincorporated associations had since been incorporated confirmed that each of the unincorporated associations had a sufficient sense of identity, organisation and continuity to incorporate without thereby diminishing the existence of any other unincorporated association within the Order of AHEPA Australia or AHEPA Australasia.

44. [127]

    It is important, in construing the relevant provisions, to have regard to the relationship between the Association and AHEPA Australia. In particular, it is necessary to consider the primacy of AHEPA Australia, and its successor, AHEPA Limited, in the scheme of associations and organisations that existed under the umbrella of AHEPA Australia from its inception in the 1930s. I do not consider that the separate incorporation of Chapters, of itself, detracts from the conclusion that all Chapters are subsidiary to the principal institution, AHEPA Australia, AHEPA Australasia or AHEPA Limited. Furthermore, although there was very little evidence concerning the operation of the Grand Lodge of NSW, there was a document detailing the “ritual of ceremonies” from the Order of AHEPA, Grand Lodge of NSW, published in 2017 but first circulated by the Grand Lodge Ritual Committee in 2001. That document contains a reference to a banner being shown to a candidate who is being initiated into a Chapter along with the words “[t]he Crown you see at the top centre of the Banner represents the Supreme Lodge, the highest executive authority of the Order”. The document suggests that, in 2001, there was a recognition within the Grand Lodge that it was set within a broader hierarchy that included the Supreme Lodge, further suggesting its subordinacy to, as opposed to independence from, AHEPA Australia.

45. [128]

    The temporal significance of the Chapters, Grand and District Lodges and State Convention “pre-dating” the national body adopted by the primary judge is also not determinative. The unification of the Order was reported as having occurred in 1954 with the foundation of the Supreme Lodge of Australia. Grand Lodges for New South Wales, Queensland and Victoria were founded the same year, with Grand Lodges in other States and Territories founded in subsequent years. The Supreme Lodge of Queensland, founded in 1948, appears to have had no further role at this point, possibly becoming defunct when the Grand Lodge of Queensland founded. The first National Convention commenced in Sydney in 1954, but no record of an earlier State Convention having taken place was in evidence. Further, the only District Lodge noted was founded in 1978, some 24 years after the national body was founded. There were, however, six Chapters founded prior to 1954, a single chapter of the Daughters of Penelope founded in 1953, with two more founded in 1954 without indicating if this was before or after the national body’s foundation. It follows that a significant majority of the various AHEPA entities, including the majority of the Chapters in NSW, were founded after the national body.

46. [129]

    The considerations outlined above in dealing with the contentions of the Dissenting Members suggest that all Chapters are indeed subsidiary units of a principal institution. The consequence is that “unincorporated association” could not merely be explained as a reference to Chapter membership. Nevertheless, that is not necessarily an end of the matter.

47. [130]

    The Association should be regarded as subordinate to AHEPA Limited and its predecessor organisation or association, namely, AHEPA Australia, subsequently known as “AHEPA Australasia”. Such a subordinate body, established under the rules and regulations of AHEPA Australia, must be distinguished from an independent body that originates in a contract for its formation entered into by the individuals who became its first members. For the reasons below the Association was constituted by the grant of a warrant by AHEPA Australia to a group of individuals who were already members of the principal institution, AHEPA Australia.

48. [131]

    The Association is not in the same position qua AHEPA Australia as the men’s Chapters are. Similarly, the Association is not in the same position qua AHEPA Australia as the “Daughters of Penelope” Chapters, the “Sons of Pericles” Chapters and the “Maids of Athena” Chapters are. All of those can fairly be characterised as being subsidiary units of a principal institution, namely, AHEPA Australia and its successors, AHEPA Australasia and AHEPA Limited.

49. [132]

    I have already referred to the objects set out in r 2 of Pt I of the 1993 Rules of the Association, which were adopted when the Association was incorporated. [26] The first object of the Association was to take over the funds and other assets and liabilities of “the Australian Hellenic Educational Progressive Association in New South Wales” and to take over the assets and liabilities of the trustees of that “unincorporated association”.

50. [133]

    The objects of the “previously unincorporated association” adopted by the Association were almost entirely identical to the objects of AHEPA Australia. On the available evidence, there is no organisation prior to 1993 which reflects those objects aside from AHEPA Australia. To the extent that “Order of AHEPA in New South Wales” existed prior to its incorporation, it existed as an integral part of a larger organisation, AHEPA Australia, of which all the members are associated for the pursuit of purposes common to them all in accordance with a constitution that governs them all. [27] It was and remains a branch of AHEPA Australia, encompassing a section of its membership, and properly considered, is a subordinate entity to the national body and does not constitute an association by itself.

51. [134]

    In Pt XIV of the 1990 AHEPA Constitution, there is no mention of the “Order of AHEPA in New South Wales” (1990 being prior to the incorporation of the Association) having adopted or acknowledged the 1990 AHEPA Constitution. However, there is a phrase in the corresponding Part of the 2010 AHEPA Constitution that the Association “adopted” the AHEPA Constitution and Bylaws, and similarly in the 2017 AHEPA Constitution that the Association “acknowledged” the AHEPA Constitution and bylaws.

52. [135]

    Rules 47 and 48 of the 1993 Rules of the Association provided as follows:

53. [136]

    The primary judge considered that, in circumstances where rr 47 and 48 refer to “the former unincorporated Association” and “the Association” is defined as Order of AHEPA NSW Incorporated (as it was following the 2003 amendments), the former incorporated Association was a reference to “the Order of AHEPA in the State of New South Wales”. There was no evidence of any separate body, organisation or association known as “the Australian Hellenic Educational Progressive Association in New South Wales” or “the Order of AHEPA New South Wales”, as referred to in r 2 of Pt I of the 1993 Rules of the Association. There was no evidence of a “constitution and rules” governing such a body as referred to by r 48.

54. [137]

    Further, in the 1990 AHEPA Constitution there was no mention of an Order of AHEPA in New South Wales adopting the rules contained in Pt XIV. However, following the incorporation of the Association in 1993 and in light of rr 47 and 48 noted above in the Association’s Rules, in the next iteration of AHEPA Australia’s Constitution, the 2010 AHEPA Constitution, Pt XIII (the successor of Pt XIV) had been amended to indicate that the Association had adopted AHEPA Australia’s Constitution and Bylaws. Plausibly, the Association under rr 48 and 49 adopted AHEPA Australia’s constitution and rules (being the unincorporated association) and, at some point after 1993, AHEPA Australia resolved to recognise that adoption in its own documents. Although the time periods between documents is not insignificant, the correlation between the incorporation and the amendment lends at least a measure of support for the view that the “unincorporated association” referred to AHEPA Australia.

55. [138]

    However, the primary judge considered that, having regard to the long history of “the New South Wales organisation” and the evidence of poor record-keeping in relation to it, it was inherently unlikely that “The Order of AHEPA in New South Wales” had no constitution and rules before the incorporation of the Association in 1993. Her Honour was reluctant to infer that from the fact that none was produced 26 years later that such an organisation had no constitution and rules, further acknowledging that, whilst the Order of AHEPA Australia did have a constitution at this time, it did not have “rules” but “regulations”.

56. [139]

    I do not consider that any inference should be drawn that there was an organisation known as the “the Order of AHEPA in New South Wales” that had an independent, albeit lost, constitution and rules. The first and most persuasive explanation is that the preamble of Pt XIV of the 1990 AHEPA Constitution specifically notes “Order of AHEPA in the State of New South Wales (hereinafter referred to as the Order) shall be governed by the following rules” (my emphasis). Thus, in absence of evidence to the contrary, the reference in r 48 to the “constitution and rules” might logically be understood as reference to the single document being the 1990 AHEPA Constitution which incorporated both a “constitution” and “rules”, the rules being the provisions that explicitly applied to the Order of AHEPA in NSW. Alternatively, Sch 1 of the 1990 AHEPA Regulations deals with “Rules of Order” which sets out procedures including voting procedures and amending motions in meetings and rescinding resolutions offering an alternative explanation.

57. [140]

    In any case, as the primary judge correctly observed, the rules, constitutions, regulations and by-laws of AHEPA Australia and the Association do not align and appear to have been drafted and amended without ensuring internal consistency, clarity and accuracy. [28] In such circumstances I would not inter anything from the specific usage of terms which might have greater weight in other contexts such as in the interpretation of statutes.

58. [141]

    The Trust Deed referred to the cestui que trust of the trust established by it as the “Order of AHEPA in the State of New South Wales”. There is nothing to indicate that that was a reference to a body, association or organisation, separate from AHEPA Australia, as that body existed in 1981 when the Trust Deed was executed. I consider that the reference to “the Australian Hellenic Educational Progressive Association in New South Wales” or “the Order of AHEPA New South Wales” can only be understood as a reference to AHEPA Australia in so far as that body, organisation or association had a presence in New South Wales.

59. [142]

    That is consistent with the reference in Pt XIV of the 1990 AHEPA Constitution to “the Order of AHEPA in the State of New South Wales”. The language of Pt XIV indicates that its author treated the regulation of the affairs of AHEPA Australia in New South Wales separately from the affairs of AHEPA Australia generally. Similarly, at the end of the 1990 AHEPA Constitution there were “additional rules of the Order of AHEPA in the State of Victoria”. The language of those rules is also indicative of the management and regulation of the affairs of AHEPA Australia in Victoria separately from the affairs of AHEPA Australia generally. However, both Pt XIV and the additional rules concerning Victoria are consistent with there only being one national body, organisation or association, namely AHEPA Australia. Their inclusion in the 1990 AHEPA Constitution is not consistent with there being separate and independent bodies, being the order of AHEPA in the State of New South Wales and the Order of AHEPA in the State of Victoria.

60. [143]

    It follows from those considerations that the reference to “the unincorporated association” in the 1993 Rules of the Association and in particular in the objects to taking over the funds and other assets and liabilities of “the presently unincorporated association, the Australian Hellenic Educational Progressive Association in New South Wales, also known as the Order of AHEPA New South Wales”, is not to be understood as a reference to a separate independent body organisation or association but to the body, organisation or association known as “AHEPA Australia” in so far as that body, organisation or association has a presence in New South Wales.

61. [144]

    The circumstances are akin to the situation considered by the High Court in Hall v Job, where a subordinate lodge created and regulated by the rules of the Loyal Orange Institute of New South Wales did not exist to enable the members of the subordinate lodge to pursue their own common ends in an exclusive society of their own, such that any property acquired by the subsidiary lodge was acquired for the principal institution, namely, the Loyal Orange Institute of New South Wales. [29] That was despite the fact that money for the payment of the land had been provided by the subordinate lodge. In those circumstances, the declaration of trust said nothing about the nature or ambit of the directions that the Lodge and its members were entitled to give vis a vis the members of the Institution as a whole, or as to the situation that should arise when there should no longer be an “Order of AHEPA in the State of NSW”. [30] Similarly, the Trustees acquired the Chippendale land on trust for AHEPA Australia, the principal institution, and not for a separate group of members of a separate body, organisation or association.

62. [145]

    Unlike the Chapters, there is nothing clearly indicating, as the primary judge perceived, a continuing existence of the Order of AHEPA in New South Wales as an association pre-dating the formation of the national body in 1954. The first accounts of AHEPA’s genesis in Australia are located in the 1990 documents of AHEPA Australia, which contain an ambiguous account of the organisation. Although noting AHEPA was “introduced” in NSW, following general meetings where the bylaws and Ritual of the American AHEPA were “adopted”, a “foundation meeting” of AHEPA was called in Scone, NSW, but it appears that that foundation meeting was held in South Brisbane Queensland, which was where in 1936 the “Hellas Chapter” was inaugurated. At one stage, this Chapter is referred to as “Hellas Chapter No 2”, but under the subsequent list of “Units” a Chapter listed as founded in 1936 in Brisbane in Queensland is referred to as “Hellas Chapter No 1”. It is unclear whether any Chapter was founded in NSW at some earlier time. Subsequently there is reference to “AHEPA being “resurrected” in New South Wales in 1953 with the establishment of a the “Prometheus” Chapter. The passage only states “AHEPA was resurrected in NSW in 1953”, as opposed to referring to an independent body such as the defendants assert. It is difficult to ascribe much weight to such accounts as pointing in any direction with respect to whether “the Order of AHEPA in New South Wales” had an independent existence.

63. [146]

    In light of those considerations, the numerous references to “the unincorporated association” found in Parts II and III of the 2018 Rules of the Association cannot refer to any organisation other than the organisation that, at the time when the 1993 Rules of the Association became operational, was regulated by the 1990 AHEPA Constitution and the 1990 AHEPA Regulations. That organisation was AHEPA Australia. AHEPA Australia, an unincorporated association, was the only association that could have been referred to as “the unincorporated association” in the 1993 Rules of the Association.

64. [147]

    It would follow that, in order for a person to be entitled to be a member of the Association within the meaning of r 3(1) of the 2018 Rules of the Association, that person must be shown to have been, on 30 June of the last financial year before applying for membership, a financial member of a New South Wales Chapter of AHEPA Australia or its successor. If a person has not, on 30 June of the last financial year, been a financial member of a New South Wales Chapter of AHEPA Australia or its successor, such a person can only be an associate member of the Association who is not entitled to participate in resolutions of the Association.

65. [148]

    That leaves the second question of whether the requirements for membership of the Association under rr 3(1) and 3(2) are cumulative or constitute two individual “pathways” to membership. There are four textual arguments that support the contentions of the Dissenting Members that membership qualifications are cumulative and that there are not alternative pathways to membership, as the primary judge found. There are two further arguments that do not arise from the text of the 2018 Rules of the Association themselves.

66. [149]

    First, there is no machinery in the 2018 Rules of the Association for a person entering by the supposed first pathway in r 3(1) to become a member or to be registered as a member of the Association. If r 3(1) “members” must also follow the r 3(2) pathway to becoming a registered member but the r 3(2) members are not required to satisfy the requirements in r 3(1), then r 3(1) is otiose.

67. [150]

    Secondly, for a member to be admitted under r 3(2)(b) of the 2018 Rules of the Association, that member must, in accordance with r 4(1)(a), be nominated by the Secretary of a “unit” of “the unincorporated association”. It would be curious for the Secretary of “the unincorporated association” to be designated to nominate new members for the Association if the nominees were not required to be members of the unincorporated association.

68. [151]

    Third, it would be nonsensical for membership of the Association to lapse under r 5(1)(d) of the 2018 Rules of the Association where a person became an “unfinancial member” of “the unincorporated association” unless all members were first required to be a financial member of the “unincorporated association”. There is no provision for a separate register to be kept of members admitted under r 3(1), as distinct from members admitted under r 3(2).

69. [152]

    Fourth, under r 15 of the 2018 Rules of the Association, the Committee of Management of the Association is composed of office bearers of “the unincorporated association” and persons nominated by Chapters of the “unincorporated association”. If the membership of the Association were not the same as the membership of the unincorporated association, there would be members of the Association who have no say in the composition of the Committee of Management and no ability to be appointed to the Committee of Management.

70. [153]

    Fifth, the Association was created for the purpose of managing the assets of those members of the organisation governed by the 1990 AHEPA Constitution and the 1990 AHEPA Regulations who were situated in New South Wales. That organisation is the “Australian Hellenic Educational Progressive Association”. The Association was incorporated in order to take over the functions of the Trustees, such as under the Trust Deed. The beneficiaries under the Trust Deed were the members of the NSW based Chapters of the organisation referred to in the 1990 AHPEA Constitution and the 1990 AHEPA Regulations. The incorporation of the Association was not intended to terminate the membership of that other organisation.

71. [154]

    In those circumstances, it might be expected that the Association would require its members to be members of the organisation to whose property the Association succeeded. Following a statutory declaration of 31 July 1993 by the solicitor for the Association, title to the Chippendale property that had been the subject of the Trust Deed was transferred to the Association by the trustees named in the Trust Deed. The memorandum of transfer, which was registered under the Real Property Act 1900 (NSW), records that those registered proprietors had held the title for and on behalf of “the former unregistered association [sic] Order of the AHEPA New South Wales”.

72. [155]

    Sixth, the second non-textual argument relied upon by the Dissenting Members is that r 3(1) was introduced into the 1993 Rules of the Association to ensure that new members were not immediately entitled to vote. One might draw the inference that the purpose was to avoid “branch stacking”. That prohibition will be circumvented if r 3(2) provided an alternative pathway to membership.

73. [156]

    The language of rr 2 and 3 of Pt II of the 1993 Rules of the Association was taken directly from rr 2 and 3 of the model rules for incorporated associations in the Sch 1 of the Associations Incorporation Regulation 1985 (NSW). Rule 1 of Pt II of the 1993 Rules of the Association was adopted as an additional qualification to r 2. The function of r 1 was not changed by the 2003 amendments, when the renumbering occurred causing it to become r 3, nor by the amendments made in 2005 and 2010, as consolidated in the 2018 Rules of the Association. The discretion of the Committee to reject membership was removed by the 2003 amendments. If rr 3(1) and 3(2) of the 2018 Rules of the Association were not intended to be cumulative, the effect would be that there was no restriction on who could or could not become a member of the Association.

74. [157]

    The construction of r 3 contended for by the Dissenting Members is the preferable construction. It follows that the requirements of rr 3(1) and 3(2) are cumulative. A person who has not been a financial member of “the unincorporated association” is not entitled to be a member of the Association, whether or not that person is a person referred to in s 15 of the 1984 Associations Act or is a person who has been nominated for membership of the Association and has been approved for membership by the Committee.

75. [158]

    There were 127 persons who were permitted to vote at the November 2018 Meeting who did not comply with r 3(1) of the 2018 Rules of the Association, as they had not been financial members of any New South Wales Chapter of AHEPA Australia or its successor on the previous 30 June, namely, 30 June 2018. The minutes of the November 2018 Meeting indicate that 369 votes were cast at the meeting on whether to adopt the new constitution, recording that 290 voted “yes” and 78 voted “no”, rendering a percentage in favour of 78.6. A special resolution of 75 per cent was required to amend the constitution, or 277 (276.75) votes in favour. The difference between the 290 actually recorded and the 277 required was only 13 votes. Had those 127 persons not voted, the requisite majority for amendment of the 2018 Rules of the Association to adopt the 2018 Constitution of the Association may very well have not been satisfied. It follows that the resolution purportedly passed at the November 2018 meeting was invalid. Accordingly, the 2018 Constitution of the Association was not validly adopted by the Association.

76. [159]

    Since the resolution purportedly passed at the November 2018 Meeting to adopt the 2018 Constitution of the Association was not a valid resolution, it follows that persons who were not entitled to vote at a general meeting of the Association were permitted to vote at the February 2019 Meeting. The resolution purportedly passed at the February 2019 Meeting was therefore invalid. The purported resolutions authorising the Committee of Management of the Association to proceed with negotiations with the Council and to authorise the Committee of Management to obtain funds for the construction and completion of stage one of the Bexley North Bowling Club project were not valid resolutions of the Association.

Conclusion

1. [160]

   It follows that the appeal should be allowed. The orders made by the primary judge should be set aside. The Dissenting Members are entitled to have their costs of the proceedings at first instance and of the appeal. The Dissenting Members should be directed to bring in short minutes of the orders to be made in lieu of the orders made by the primary judge.