Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304

Lianos v Order of AHEPA NSW Inc (No 2) [2020] NSWCA 304

Section 440D applied because the appeal had not yet been finally resolved and the invited submissions on orders were steps toward final resolution, so leave was required. Leave should be granted because the dispute concerned governance of the Association and final orders would provide certainty in the administration or winding up; the asserted prejudice concerning a possible High Court application or reopening did not justify refusing leave. The proposed substantive orders, with a correction to clause 1(2)(f), fairly reflected the Principal Reasons and should be made, stayed for 21 days.

Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Appeal Concerning Incorporated Association Governance and Voluntary Administration Moratorium / Application on the Papers for Leave Under Corporations Act 2001 (cth), S 440 D(1)(b), and Final Orders After Reasons for Allowing Appeal
Outcome
Leave granted under Corporations Act 2001 (Cth), s 440D(1)(b); appeal allowed; primary judge's orders set aside; declarations and rectification order made; first respondent ordered to pay appellants' costs; orders stayed for 21 days.
Legal Topics
['voluntary Administration' 'moratorium on Proceedings Against Company Under Administration' 'leave to Proceed Under S 440 D' 'final Orders After Appeal Reasons' 'governance and Membership of Incorporated Association' 'rectification of Register of Incorporated Associations']
['corporations' 'associations Incorporation' 'civil Procedure' 'appellate Procedure'] ['voluntary Administration' 'moratorium on Proceedings Against Company Under Administration' 'leave to Proceed Under S 440 D' 'final Orders After Appeal Reasons' 'governance and Membership of Incorporated Association' 'rectification of Register of Incorporated Associations']

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Procedural Posture

Appeal Concerning Incorporated Association Governance and Voluntary Administration Moratorium / Application on the Papers for Leave Under Corporations Act 2001 (cth), S 440 D(1)(b), and Final Orders After Reasons for Allowing Appeal

Legal Issues

  1. 1 ['Whether s 440D of the Corporations Act 2001 (Cth) operated to prevent the Court from making orders to give effect to the conclusions reached in the Principal Reasons.' 'If s 440D applied, whether leave to proceed should be granted under s 440D(1)(b).' 'Whether the Court should make substantive orders or remit the proceedings to the primary judge for formulation of orders and consideration of an application to reopen.' 'Whether the orders proposed by the Dissenting Members reflected the Principal Reasons.']

Ratio Decidendi

Section 440D applied because the appeal had not yet been finally resolved and the invited submissions on orders were steps toward final resolution, so leave was required. Leave should be granted because the dispute concerned governance of the Association and final orders would provide certainty in the administration or winding up; the asserted prejudice concerning a possible High Court application or reopening did not justify refusing leave. The proposed substantive orders, with a correction to clause 1(2)(f), fairly reflected the Principal Reasons and should be made, stayed for 21 days.

Court Disposition

Leave granted under Corporations Act 2001 (Cth), s 440D(1)(b); appeal allowed; primary judge's orders set aside; declarations and rectification order made; first respondent ordered to pay appellants' costs; orders stayed for 21 days.

Orders

  • ['Leave is granted to proceed under Corporations Act 2001 (Cth), s 440D(1)(b).' 'Appeal allowed.' "Set aside orders made by the primary judge on 3 October 2019 and, in lieu thereof, make declarations and orders concerning the Association's rules, membership requirements, invalidity of resolutions, rectification of...