NAGRA v SRI GURU SINGH SABHA AUCKLAND INC (1229571) [2020] NZHC 2223

NAGRA v SRI GURU SINGH SABHA AUCKLAND INC (1229571) [2020] NZHC 2223 [28 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1406[2020] NZHC 2223IN THE MATTER of an application under the Judicial ReviewProcedure Act 2016BETWEEN DALJIT SINGH NAGRA and GURNEKSINGH NIJJARApplicantAND SRI GURU SINGH SABHA AUCKLANDINCORPORATED (1229571)RespondentHearing: 28 August 2020Appearances: M I S Phillipps for the applicantsP Amaranathan for the respondentDate of judgment: 28 August 2020JUDGMENT OF PALMER JThis judgment was delivered by me on Friday, 28 August 2020 at 2.30pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Vicki Ammundsen Trust Law, AucklandRice Craig, AucklandThe proceeding and application[1] Mr Daljit Singh Nagra and Mr Gurnek Singh Nijjar apply for judicial reviewof a decision of the Sri Guru Singh Sabha Auckland Inc (Sabha), an IncorporatedSociety and registered charity. The decision challenged is to sell the Sabha'sGurdwara (Sikh Temple) in Papatoetoe. The grounds of review are that the saledecision was made with improper motive, was irrational and was not fair orreasonable.[2] The sale tender closes at 4 pm today. The tender acceptance date is Friday4 September 2020. When the proceedings were filed yesterday, the applicants alsosought an interim injunction, without notice, preventing sale of the property by tenderor any other means until further order of the Court, in order to preserve their positionuntil the hearing. The papers were served on the respondents on a Pickwick basis andI convened an urgent teleconference this morning.Submissions[3] The applicants seek interim interim relief until their application for interimrelief can be heard, once the respondents have had to time to respond. The interiminterim relief sought is an order that, prior to 4 pm today, the closing date of the tenderbe extended by a maximum of 20 working days and that the vendor be restrained fromentering any sale and purchase agreement or accepting any tender in that time.Mr Phillipps, for the applicants, submits the orders would preserve the position of theparties, if there are tenderers.[4] Mr Phillipps submits the primary ground of the judicial review isunreasonableness. The Gurdwara is of public benefit to the congregation and widercommunity and is the epicentre of the Sabha. Mr Nagra has sworn affidavits that sale"runs contrary to all Sikh traditions and conventions".1 The alleged unreasonablenessis leaving the Sabha without a facility, given its objects as an incorporated society andas a registered charity, and the fact the wider community can contribute to the Sabha'sliabilities, which might arise from an Employment Court judgment against the Sabha.1 Affidavit of Daljit Singh Nagra at [34].[5] Ms Amaranathan, for the respondents, submits there is a preliminary issue ofthe applicants' standing, as former members of the Sabha. She also submits there isno evidence establishing a serious question to be tried. Her instructions are:(a) The Sabha's rules allow it to sell the property and the Sabha followedthat process. A special general meeting of 40 of the 50 members of theSabha unanimously agreed to sell the property.(b) The Sabha is currently funding high mortgage repayments on theproperty and, as former factory premises, it needs renovation.The Employment Court judgment has been satisfied.(c) When the tenders are considered, the Sabha will consider not onlypurchase prices but also whether any tenders provide accommodationfor the congregation through, for example, a leaseback.[6] Ms Amaranathan submits the Sabha is concerned the interim relief soughtmight cause them to lose potential purchasers. A meeting of the Sabha last nightinstructed her to offer an undertaking that the Sabha would not accept any tender offernor enter into any sale and purchase agreement before 12 noon on Friday 11 September2020. They expect a potential purchase would not be deterred by an extension of onlyone week, which could allow a hearing to occur. She submits the Sabha could alsodecide, if it is able to do so in the time available and considers it in its interests, toextend the closing date in the way proposed by the applicants.Interim interim orders[7] Under s 15 of the Judicial Review Procedure Act 2016, the court may makeinterim orders "if, in its opinion, it is necessary to do so to preserve the position of theapplicant". The Court has a wide discretion to consider all the circumstances of thecase in deciding whether to grant interim relief.2 Making interim orders involvesconsidering the seriousness of the question to be argued and the strength of theapplicant's case, the balance of convenience between the parties and the overall justice2 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.of the case. Here, the interim interim orders would last until determination of theapplication for interim orders at a two-hour hearing on Thursday 10 September 2020.[8] No doubt the standing issue will be considered at the substantive hearing. Butrules of standing in New Zealand are relatively relaxed in judicial review proceedings,3and the applicants undoubtedly have an interest in the decision they seek to challenge.I am more troubled by the substantive merits of the applicants' case.Unreasonableness is a difficult ground of judicial review to make out. The applicantsdo not appear to have any information about the reasons for the decision they arechallenging. The instructions to Ms Amaranathan suggest there are reasons for thedecision. On the basis of the information available to me, the applicants' case doesnot appear strong.[9] Against that, if no orders are made and the applicants succeed, their challengemay be rendered nugatory. If orders are made, and the respondents succeed, theefficacy of the sale may or may not be impaired. The balance of convenience of interiminterim orders favours the applicants.[10] The position can be reviewed with the benefit of more evidence at the hearingof the application for interim orders. In the meantime, given the merits favour therespondents but the balance of convenience favours the applicants, I accept therespondents' proposal to preserve the position of the parties. I decline to make interiminterim orders but rely on the undertaking given by the respondents that the Sabhawill not accept any tender offer nor enter into any sale and purchase agreementbefore 12 noon on Friday 11 September 2020. That undertaking must be honouredas if it is an interim interim order of the Court.[11] I make the following timetabling directions to the hearing on the applicationfor interim orders:(a) By 4 pm Friday 4 September 2020, the respondents will file theirnotice of opposition and supporting affidavits.3 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094.(b) By 3 pm Tuesday 8 September 2020, the applicants will file anyaffidavits strictly in reply and their written submissions.(c) By 3 pm Wednesday 9 September 2020, the respondents will file theirwritten submissions.(d) At 10 am Thursday 10 September 2020, the application for interimorders will be heard for up to two hours.(e) Within 10 working days of the judgment on interim orders beingissued, the applicants and respondents will file a joint memorandum (orseparate memoranda if necessary) about timetabling to a hearing of thesubstantive application for judicial review.Palmer J