Adelaide Hebrew Congregation Inc v Engel - [2007] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
ADELAIDE HEBREW CONGREGATION INC v ENGEL
[2007] SADC 23
Reasons for Decision of Her Honour Judge Simpson
6 March 2007
REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - POSSESSION
PRIVATE INTERNATIONAL LAW - CHOICE OF LAW - CONTRACTS
ARBITRATION - THE SUBMISSION AND REFERENCE - SUBMISSION AS A DEFENCE AND AS A GROUND FOR STAY OF PROCEEDINGS - STAY OF PROCEEDINGS - GROUNDS
Application by plaintiff for declaration that contract of employment between plaintiff and defendant has expired - order sought for possession of property occupied by defendant by virtue of provisions of contract of employment - assertion by defendant of right of tenure of employment under Jewish law and licence coupled with an equity entitling defendant to remain in occupation of property - whether reference by the defendant of a dispute between the parties to the Sydney Beth Din constitutes grounds for order staying proceedings - whether dispute beteween parties to be governed by Jewish law as a matter of procedure - whether application of Jewish law governs enforcement of rights under contract - Held: no grounds established to stay proceedings - applicable law the law of the State of South Australia - term of contract of employment has expired - plaintiff entitled to an order for possession of the property.
Commercial Arbitration Act 1986 s 53; Real Property Act 1886 ss 192-197; Associations Incorporation Act 1985 ss 23, 23A, referred to.
Rodgers and another v Moonta Town Corporation (1981) 37 ALR 49, applied.
Inwards and others v Baker [1965] 1 All ER 446; Vinden v Vinden [1982] 1 NSWLR 618; Crabb v Arun District Council [1975] 3 All ER 865; Bonython v Commonwealth of Australia [1951] AC 201; Soleimany v Soleimany [1999] QB 785; Mond and Mond v Berger and others (2004) 10 VR 534; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Ermogenous v Greek Orthodox Community (2002) 209 CLR 95, considered.

ADELAIDE HEBREW CONGREGATION INC v ENGEL
[2007] SADC 23

This is an application brought by Summons for an order for possession of land pursuant to section 192 of the Real Property Act 1886. The plaintiff, the Adelaide Hebrew Congregation Incorporated, is an association incorporated pursuant to the Associations Incorporation Act 1985. The plaintiff is the registered proprietor of a freehold estate in the land situated at 10 Windsor Road, Glenunga in the State of South Australia and comprised and described in Certificate of Title Register Book Volume 5787 Folio 630 as Allotment 111 in Filed Plan 15740 (‘the property’). The defendant, Rabbi Yosef Engel, is currently occupying the property, which is used for residential purposes.
The application is supported by the affidavit of Leon Vivian Zimmet affirmed on 14 February 2007. In his affidavit, Dr Zimmet sets out the basis for the application. The defendant has been employed by the plaintiff as Rabbi of its Synagogue. It was a term of the defendant’s employment that he would be provided with housing at no cost. It is the plaintiff’s case that the employment of the defendant by the plaintiff terminated on 30 December 2006 and the defendant is accordingly no longer entitled to occupy housing provided to him by the plaintiff.
The defendant filed an answering affidavit in the proceedings on 21 February 2007. Counsel for the defendant made further assertions of fact from the bar table at the time of the hearing of the application. Counsel for the plaintiff agreed those facts could be taken into account for the purposes of these proceedings only, as if the facts had been deposed to in an affidavit made by an appropriate deponent. The defendant opposes the orders sought by the plaintiff and has also brought an application for a stay of the proceedings until further order, pursuant to section 53 of the Commercial Arbitration Act 1986.
In his affidavit affirmed on 21 February 2006, the defendant does not dispute the facts on which the plaintiff relies as the basis for the plaintiff’s application to this court. The defendant does challenge the right of the plaintiff to resolve the dispute between the parties by the proceedings in this court, rather than in accordance with Jewish law.It is the defendant’s case that the matter has been referred to arbitration before the Beth Din, the Jewish Ecclesiastical Court with jurisdiction in all aspects of Jewish life, including moral, civil, religious or fiscal matters, and therefore these proceedings should be stayed.The defendant disputes that the terms of the contract, both express and implied, properly interpreted, allow the plaintiff to terminate his employment and therefore his licence to live in the housing provided pursuant to it. The defendant asserts that he has a licence coupled with an equity, which can only be satisfied by allowing him to remain in occupation of the property.
In accordance with the provisions of sections 23 and 23A of the Associations Incorporation Act 1985, the plaintiff has adopted Rules which provide, amongst other things, that the management, administration and all business of the congregation shall be under the control of, conducted by and vested in the Board of Management (‘the Board’). By letter dated 5 April 2005, the president, on behalf of the Board, offered the defendant the position of Rabbi of the Adelaide Hebrew Congregation Incorporated on the terms contained in the letter. The defendant signed the letter on 4 May 2005, indicating his acceptance of the terms of employment (‘the contract of employment’). The court was told that the contract of employment was one of a series of similar contracts between the parties in the period between 1998 and 2005.
The letter of offer of 5 April 2005 refers to a meeting of the Board, held on 12 January 2005, during which the Board resolved to make the offer of position of Rabbi to the defendant, at the same time determining not to accept the defendant’s conditions for the painting of the house, replacement of curtains, installation of a storage shed and a travel allowance of $3000 per annum in the new contract. The terms of appointment of the defendant as Rabbi are set out in the letter as follows:
1.RELIGIOUS MATTERS: You are appointed as Rabbi of the Congregation and, in this capacity, will be its Spiritual Leader and its Rabbinic Authority. Your rulings on matters of religious law and practice shall be binding. You reserve the right to decide whether an issue is related to Jewish law and practice. In the event of an unsolvable dispute as to the relevance of religious law to an issue, the advice of the Sydney Beth-Din will be sought. If they find the issue to be relevant to Jewish law and practice, your religious decision on the matter will be followed. Your job description is per the attached schedule. In accordance with Rule 4 of the Constitution,
“The form of worship and religious observance shall be in accordance with the form of worship already established and in accordance with the practice of Orthodox Synagogues within Australia.”
In matters of Congregational policy which do not have a bearing on religious law and practice, it is agreed that you will comply with the directions of the Board of Management.
2.SALARY:     Gross Annual Salary of $60,000 per annum adjusted annually in accordance to the Consumer Price Index (including superannuation).
The salary is split into two components namely, salary and religious allowances, and the split between the two is to be mutually agreed.
3.TELEPHONE:     Provided at no cost. Overseas personal calls to be paid for by Rabbi Engel.
4.HOUSING:     Provided at no cost. This will include accommodation, rates and taxes, electricity and gas, and maintenance of the house and grounds (but excluding cleaning of the house).
5.MOTOR VEHICLE:     A vehicle will be provided for your exclusive use. Petrol, registration, insurance and maintenance of the vehicle will be provided at no cost.
6.SUPERANNUATION:     The percentage of the gross salary per annum as required by the Superannuation Guarantee Legislation will be paid into an appropriate superannuation fund by the Adelaide Hebrew Congregation. This is a pension fund and is in addition to salary.
7.HOLIDAYS:     Four weeks recreation leave per annum with your absence from the Congregation limited to a maximum of four consecutive Shabbats. Also, you will be entitled to attend Professional Development sessions in either Sydney or Melbourne during the week up to a maximum of two weeks per annum. Annual leave is to be taken at a time to be mutually agreed between the President of the Board and yourself.
8.CONTRACT PERIOD:
8.1     The contract period is to commence from the date of your written acceptance of this offer and shall continue until 30 December 2006.
8.2     The Board shall give Rabbi Engel 3 months notice prior to the end of the contract period should the Board intend not to renew the contract.
9.NOTICE PERIOD BY RABBI ENGEL:     You will have the right to terminate this contract at any time during the contract period by giving three months prior notice to the Board of your intention to terminate the contract.
10.RELOCATION EXPENSES:
10.1FROM ADELAIDE
10.1.1Should you leave our Congregation to take up an appointment within Australia, no relocation expenses will be paid.
10.1.2Should you decide to relocate to the northern hemisphere on the termination of the contract period, the Adelaide Hebrew Congregation will pay:
*One way airfares to New York for you and the family plus cost of removal of personal effects.
10.1.3Should you decide to terminate your contract before the expiry date of your contract, because of an offer from another congregation, we would expect them to pay your relocation expenses.
10.1.4Should you decide to terminate your contract before the expiry date of your contract due to unworkable differences; the Adelaide Hebrew Congregation will pay one-way airfares to New York for you and the family plus cost of removal of personal effects.
11.PERFORMANCE REVIEW:     The Board wants to have open lines of communication with you and to ensure you receive regular feedback from it on your performance. The Board also wants regular feedback from you to ensure that any problems are resolved at the earliest possible time.
11.1   If a member has a problem with the performance of the Rabbi he’s advised to personally take this issue up with the Rabbi privately.
11.2   If the problem persists, it should be brought to the attention of the President of the Board of Management of the Adelaide Hebrew Congregation, who may then choose to approach Rabbi Engel in private on the matter.
11.3   If the issue cannot be resolved between the Rabbi and the Board of Management, the issue should be brought to the attention of the Sydney Beth-Din for their advice and input.
11.4   In the case that they can’t bring the parties together, the Sydney Beth-Din should be consulted for arbitration, and their decision on the matter shall be binding on Rabbi Engel and the Board of Management of the Adelaide Hebrew Congregation.
All of the above should be done behind closed doors and not be brought to the   attention of the general membership of the Adelaide Hebrew Congregation.
12.    BOARD MEETINGS:     At the request of the Board of Management and at the Board’s discretion, you will be expected to attend Board meetings to present a report covering the previous month’s activities and plans for the next month(s).
The Board Meeting Agenda will be structured so that you can attend the early part of meetings and participate in those areas of activities which may have religious law implications.
At its meeting on 7 June 2006, the Board resolved not to renew the defendant’s contract of employment. The defendant was advised of the decision by letter dated 25 June 2006[1] from Dr Zimmet on behalf of the plaintiff’s executive. The letter confirmed the resolution not to seek an extension to the contract which was to expire on 30 December 2006. The Board referred to its intention to offer the defendant every assistance in securing another position, in Australia or overseas, and to its sympathetic attitude to an earlier release of the defendant from his contract, if he were successful in securing another position. The defendant’s solicitor was advised by letter dated 4 September 2006[2] that the honorary solicitor for the plaintiff confirmed that he regarded the contract as one for a limited term expiring on 30 December 2006, and the plaintiff expected the defendant to vacate the house in which he was living on or before 31 December 2006.
[1] Exhibit ‘LVZ4’ to the affidavit of Leon Vivian Zimmet affirmed 14.02.07; Exhibit ‘RYE3’ to the affidavit of the defendant affirmed 21.02.07
[2] Exhibit ‘LVZ5’ to the affidavit of Leon Vivian Zimmet affirmed 14.02.07
By letter to the defendant dated 18 December 2006[3], the plaintiff advised the defendant that his position of Rabbi had been terminated as of that date. The letter set out the reasons for the termination. The reasons given relate to the conduct of the defendant. Because the terms of the contract of employment provide for the contract period to continue only until 30 December 2006, these proceedings do not require any consideration of matters relating to the defendant’s performance of the contract or, in particular, to the conduct referred to in the letter of 18 December 2006. Amongst other things, the letter advised the defendant that he was required to vacate the residence provided to him by 31 December 2006.
[3] Exhibit ‘LVZ6’ to the affidavit of Dr Zimmet affirmed 14.02.07; Exhibit RYE4’ to the affidavit of the defendant affirmed 21.02.07
The President of the Board wrote to individual congregants by letter dated 19 December 2006 advising of the defendant’s dismissal on 18 December 2006[4]. The letter also refers to the anticipated expiry of the defendant’s contract on 30 December 2006 in any event, to the defendant’s insistence on a three month separation clause and a termination date in the contract after ‘extensive negotiations’ the previous year, and to the request by the defendant to the Beth Din, a Jewish Ecclesiastical Court, to consider whether his contract should continue forever.
[4] Exhibit ‘RYE5’ to the affidavit of the defendant affirmed 21.02.07
The defendant’s affidavit describes the practice of an Orthodox Jewish Synagogue, such as the plaintiff’s, under the principles of Jewish law, referring all matters of dispute between Jews, whether moral, civil, religious or fiscal matters, to a nominated Beth Din. The defendant says that the plaintiff has traditionally used the Sydney Beth Din as its court of reference.
The defendant has issued three Notices of Dispute concerning the plaintiff in proceedings he wishes to be heard by the Sydney Beth Din. The first Notice of Dispute is dated 30 November 2006. In it the defendant sets out Particulars of Dispute. The defendant refers to his holding the position of Rabbi of the Adelaide Hebrew Congregation since 1 November 1998. The basis of the dispute is stated to be founded in effect on the differing interpretations placed by the plaintiff and the defendant on the terms of the defendant’s contract of employment. In particular, the defendant challenged the strictly secular legal position taken by the Board in its relation to its obligations to the defendant. The defendant asserts that:
1.He has been Spiritual Leader for the congregation of the plaintiff for 8 years;
2.He has an express or an implied right to have his contract renewed, provided that he has not misconducted himself in his capacity as Spiritual Leader;
3.There being no misconduct sufficient to render the defendant unfit, the contract should continue or be extended for such further periods as may be reasonable or as agreed between the parties;
4.In the absence of any sustainable allegations of misconduct or proof of substantial breaches of the contract, the defendant has security of tenure and is entitled to treat the contract as continuing; and
5.There is nothing in the contract preventing the defendant from taking civil action in a secular court to seek immediate or urgent injunctive relief as he may be advised.
The second Notice of Dispute is dated 19 December 2006. Further Particulars of the continuing dispute incorporate complaints by the defendant to the Sydney Beth Din relating to the plaintiff’s refusal to participate in the Beth Din process and to the termination of the defendant’s employment by the plaintiff on 18 December 2006.
On or about 21 December 2006, the defendant obtained an injunction in this court ex parte restraining the plaintiff in this action in particular from:
(a)Taking steps to find or appoint a replacement for the defendant;
(b)Taking steps to remove the defendant and his family from his home and that the usual emoluments excluding the payment of salary remain in place;
(c)Preventing the defendant conducting religious services at the Synagogue for the Adelaide Hebrew Congregation at 13 Flemington Street, Glenside and the performance of the usual Rabbinic services to the Congregants of that Congregation.[5]
The application was adjourned to 12 January 2007.
[5] Exhibit ‘LVZ7’ to the affidavit of Dr Zimmet affirmed 14.02.07
The third Notice of Dispute issued by the defendant in relation to the Beth Din proceedings is dated 31 December 2006. The particulars in the Notice concern the contents of the plaintiff’s letter to the defendant dated 18 December 2006 and the contents of the letter to members of the congregation dated 19 December 2006. The Beth Din is asked to make a determination in relation to ‘the purport, effect and meaning of the letter of termination dated 18 December 2006’ and ‘the defamatory material’ contained in the letter of 19 December 2006 and appropriate orders for damages payable to the defendant ‘for the harm done to his good name’.
On 12 January 2007, the injunction referred to in paragraph 13 above was dissolved following an agreement reached between the parties[6] to commit to mediation, and with the plaintiff agreeing to the defendant continuing to discharge his functions at the Synagogue, including officiating services, and continuing to live in the house until 16 February 2007.
[6] Exhibits ‘LVZ8’ & ‘LVZ9’ to the affidavit of Dr Zimmet affirmed 14.02.07
The mediation proceeded on 7 February 2007. It failed to reach a resolution between the parties and is closed. This application was brought by the plaintiff on 14 February 2007. The orders sought by the plaintiff are:
1. A declaration that the contract of employment between the plaintiff and the defendant has expired; and
2. An order that the defendant give up possession to the plaintiff within seven (7) days of the service of a copy of this order upon him of the land situated at 10 Windsor Road, Glenunga in the State of South Australia and comprised and described in Certificate of Title Register Book Volume 5787 Folio 630.
The plaintiff denies that resolution of the dispute with the defendant of his claim that he has a right to continue in his employment and to continue to enjoy housing provided by the plaintiff at no cost is to be governed by Jewish law. The plaintiff has advised the Sydney Beth Din that in the dispute with the defendant it will not submit to its jurisdiction. The plaintiff has been advised that it is deemed in contempt of the Beth Din until such time as it submits to halachic (Jewish civil law) jurisdiction.[7]
[7] Exhibit ‘RDB1’ to the affidavit of Ronald David Windermere Bellman affirmed 23 February 2007.

Part 17 of the Real Property Act 1886 relevantly provides:
Summons to give up possession
192Any of the following persons (in the following sections called the "claimant") may cause any person in possession of land under the provisions of this Act to be summoned to appear before the Court to show cause why the person summoned should not give up possession to the claimant—
(a)     the registered proprietor of a freehold estate in possession;
(b)     any registered mortgagee or encumbrancee where the person in possession is a mortgagor or encumbrancer in default, or a person claiming under such mortgagor or encumbrancer;
(c)     any lessor with power to re-enter where the rent is in arrear for three months, whether there be or be not sufficient distress found on the premises to countervail such rent, and whether or not any previous demand shall have been made for the rent;
(d)     any lessor where a legal notice to quit has been given, or the lease become forfeited, or the term of the lease has expired.
Summons to contain description of land
193The summons shall contain a description of the land, and shall require the person summoned to appear before the Court on a day not earlier than sixteen days after the service of the summons. The summons shall be served in the same manner as a writ of summons in an action for the recovery of possession of land in the Supreme Court.
Orders on non-appearance to summons
194If, on the hearing of the summons, the person summoned do not appear, then upon proof of the service of the summons and of the claimant's title, or on the production of a consent to an order by the person summoned, the Court may order immediate possession to be given to the claimant.
Orders on appearance to summons
195If the person summoned shall appear, the Court shall hear the summons, and may make such order thereon and impose such terms as it may think fit: Provided that in the case of a lessor against a lessee, if the lessee before or at the hearing pay or tender all rent due, and all costs incurred by the lessor, the Court may dismiss the summons.
Dismissal of summons not to prejudice other rights
196The dismissal of any such summons shall not prejudice the right of the claimant to take any other proceedings against the person summoned to which he may be entitled.
Effect of order for possession
197Every order for possession under this Part of this Act shall have the effect of, and may be enforced in the same manner as, a judgment in the Court for the recovery of possession of land.
There is no dispute that the plaintiff is the registered proprietor of the property. There is no dispute that the defendant has been entitled to occupy the property only on account of the terms of his employment with the plaintiff and in particular on licence from the plaintiff. It is the plaintiff’s case that the defendant’s employment is on the terms contained in the letter dated 5 April 2005 and accepted by the defendant on 4 May 2005. The terms of the defendant’s employment had apparently been the subject of extensive negotiation beforehand. The terms provided for annual salary, telephone costs, housing, motor vehicle use, superannuation, holidays and relocation expenses. The contract period was definite. The defendant had the right to terminate the contract at any earlier time on three months prior notice of his intention. The contract allowed for renewal to the extent that if not renewed, three months notice of the intention not to renew it was required to be given to the defendant. Renewal or non-renewal of the contract was not linked in any way to review of the defendant’s performance.
The defendant was appointed as Rabbi of the Congregation, and in that capacity, was to be its Spiritual Leader and Rabbinic Authority, whose rulings on matters of religious law and practice were to be binding. The job description was attached as a schedule to the contract.
In accordance with Rule 4 of the plaintiff’s Constitution:
The form of worship and religious observance shall be in accordance with the form of worship already established and in accordance with the practice of Orthodox Synagogues within Australia.
In matters of Congregational policy which had no bearing on religious law and practice, clause 1 of the contract provided that the defendant was to agree to comply with the directions of the Board.
Performance Review was a discrete term of employment. Where a member of the plaintiff had a problem with the performance of the defendant as Rabbi, the member was to be advised first to take the matter up privately with the defendant. If not resolved in that way, it was to be brought to the attention of the President of the Board, who might choose to approach the defendant privately on the matter. If not resolved as between the Board and the defendant privately, the issue was to be brought to the attention of the Sydney Beth Din for advice and input. If the Beth Din were unable to bring the parties together, the Beth Din was to be consulted for arbitration, and the decision was to be binding on both parties.
If this application depended on resolving an issue related to a problem with the performance of the defendant of his duties as Rabbi, then clause 11 of the contract of employment provides for its resolution, after the failure of other means, by arbitration by the Sydney Beth Din. In my opinion, the application is to be determined without any reference to issues of the defendant’s performance as Rabbi. The only matter which was agreed by the parties to the contract of employment could be referred to arbitration was the performance of the defendant. The parties have not agreed to refer any other matter to arbitration.
Section 53(1) of the Commercial Arbitration Act 1986 provides:
(1)\    If—
(a)     a party to an arbitration agreement commences proceedings in a court against another party to the agreement in respect of a matter agreed to be referred to arbitration;
(b)     an application for a stay of the proceedings is made by another party to the arbitration agreement;
(c)     the application is made—
(i)before the applicant has delivered pleadings or taken any other step in the proceedings other than the entry of an appearance; or
(ii)with the permission of the court—at some later stage in the proceedings;
(d)     the court is satisfied—
(i)that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement; and
(ii)that the applicant was at the commencement of the proceedings and still remains ready and willing to do all things necessary for the proper conduct of the arbitration,
the court may make an order staying the proceedings and may give such directions with respect to the future conduct of the arbitration as it thinks fit.
Pursuant to section 4(1), ‘arbitration agreement’ means an agreement in writing to refer present or future disputes to arbitration.
To the extent that the contract between the parties can be considered an arbitration agreement, matters to be referred to arbitration are limited to those matters specifically identified in clause 11 of the contract. The plaintiff has not commenced proceedings in this court against the defendant in respect of any matter agreed to be referred to arbitration. The plaintiff’s application to this court cannot be made to relate to a review of the performance of the defendant simply because the defendant has chosen to seek other relief, including an order for damages, through a hearing before the Beth Din. Accordingly, in my opinion, section 53 of the Commercial Arbitration Act 1986 can have no application.
The defendant’s defence to the application depends in part on a finding that the contract is governed by Jewish law and in that event cannot be determined in summary proceedings. First, the defendant asserts that clause 1 of the contract constitutes an express agreement by the parties that the contract be governed by Jewish law. Alternatively, if no choice was expressly made by the parties themselves, a term should be implied into the contract that the contract was to be governed by Jewish law. In the further alternative, if it is not possible to imply a term that the contract should be governed by Jewish law, then this court should find that the contract is to be governed by Jewish law because it was the ‘system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.’ (Bonython v Commonwealth of Australia [1951] AC 201 at 219)
Applying Jewish law, the defendant submits that because he has been Rabbi for eight years, he has a claim for tenure. Under Jewish law, it is to be implied that the plaintiff could only decide not to renew the contract for cause. Therefore, in the defendant’s submission, the only valid reason on which the plaintiff could have determined not to renew the defendant’s contract was for deficiencies in the performance of the defendant. The defendant has been denied natural justice because he has not been given an opportunity to answer the complaints made about his performance.
In my opinion, the contract cannot be said to provide expressly for the application to it of Jewish law. Nor is there any evidence that such a term should be implied. The authorities on which the defendant relied were cases in which the parties had expressly agreed to refer their dispute to arbitration for decision by a Beth Din. In Soleimany v Soleimany ([1999] QB 785), the parties specifically agreed to the application of the ‘rules of procedure established for or customarily employed in references to arbitration before the said Beth Din’. The arbitrators had applied Jewish law in resolving a dispute regarding a transaction which by Jewish law, was not illegal. The transaction was however found to be illegal under English law and on that account unenforceable. In Mond and Mond v Berger and others ((2004) 10 VR 534), the parties had expressly agreed to refer all claims and counterclaims for the decision of named arbitrators ‘according to Jewish law and rules of procedure established for and customarily employed in references to arbitration before a Beth Din, a Jewish Court of law’ and to submit to ‘the exclusive jurisdiction of the said arbitrators’, accepting their decision as final. The court was asked to decide on the facts, as a matter of construction of the express terms of the referral to arbitration, whether the claim was to be determined by reference to Jewish law.
The implication of the term for which the defendant contends is inconsistent with the terms and conditions of employment in the contract itself. If it had been the intention of the parties, provision for the application of Jewish law, procedural or substantive, to resolution of a dispute about the term of the contract or the renewal of the contract could readily have been made.
In my opinion, there is no basis for the implication of a term that the contract is to be governed by Jewish law. Such a term is not necessary to give business efficacy to the contract, it is not so obvious that it goes without saying, and it appears to be inconsistent with the intentions of the parties in omitting reference to Jewish law in relation to matters other than matters of religious law and performance review. (Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 347, 404; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 65, 117-118, 121).
In my opinion, the defendant has not pointed to any basis on which the contract can be said as a matter of fact to be governed by Jewish law because it was the ‘system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection.’ There being no express reference in the contract itself, ‘the question becomes a matter of implication to be derived from all the circumstances of the transaction.’ (Bonython v Commonwealth of Australia, above, at 219, 221) The relevant transaction in this case was the employment of the defendant. The terms of employment included the provision of housing free of charge. The contract of employment and the right to possession of land is governed by the law in this State. It is true that the defendant or another Rabbi might decide that there are aspects of the employment of the defendant which are a matter of religious law and practice. However, that cannot change the nature of the application brought by the plaintiff in this court to be determined according to the law of this State, where it is not necessary to consider any matter which could be characterised as a matter of religious law and practice.
There is nothing in the circumstances to show that the parties ‘did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts’. (Ermogenous v Greek Orthodox Community (2002) 209 CLR 95 at 105) Notwithstanding the fact that the defendant’s, and possibly the plaintiff’s conduct in some ways may be governed by consideration of religious matters, the relationship between them may even so be governed by a contract giving rise to obligations which may be enforced in a court of law. While ‘Australian courts may not be prepared to adjudicate upon “an irregularity or departure within the church itself in the observance of the prescribed liturgy”’, “juridical rights in property” have been the subject of intervention in an appropriate case and courts ‘will not hesitate to enforce, as arrangements intended to have contractual or other binding force, rules of a proprietorial character concerned with proprietorial rights.’ (Ermogenous, above at 110, 115, 117-119; referring to Wylde (1948) 78 CLR 224)
Even if there were an issue, arising under Jewish law, regarding the right of the plaintiff to decide not to renew the contract, outside its express terms, its resolution in favour of the defendant could at best only entitle the defendant in due course to a further contract, or to an award of damages. It could not affect the operation of the provisions of the contract entered into by the parties when the defendant accepted its terms on 4 May 2005.
The defendant also asserts that as a result of an expectation, created by the plaintiff, that if he were to travel to South Australia from New York to take up the position as Rabbi to the plaintiff’s congregation, he would be entitled to tenure and, pursuant to a licence coupled with an equity, to remain indefinitely in occupation of the housing provided by the plaintiff. For the purposes of the application, the plaintiff accepts that the defendant’s assertions relating to his personal circumstances may be relied on by the defendant, notwithstanding the lack of evidence, and the defendant’s case may be taken at its highest.
I accept, for the purposes of the application, that the defendant, with the encouragement of the plaintiff, travelled to South Australia eight years ago from his home in New York to take up a position of Rabbi here. I accept that in doing so, he and his family were necessarily separated from the support of family, friends and members of their religious community. I accept the defendant gave up other career opportunities in New York and he gave up being part of a larger Jewish community.
The defendant has held the position of Rabbi here for over eight years. There is no suggestion that he has not been provided with concomitant benefits under a series of previous contracts, including salary, housing, a motor vehicle, recreation leave and superannuation. Relocating to another country with a young family for the purposes of employment is not uncommon and is often associated with both advantages and disadvantages. In my opinion, even accepting at its highest the personal hardship associated with the move of the defendant and his family from New York, such an arrangement does not suggest a basis for the kind of equity recognised by the authorities on which the defendant relied.
In Inwards and others v Baker ([1965] 1 All ER 446), the defendant had been induced by a promise made by his father, to build a house, largely at his own expense, on land owned by his father. Having built the house in the expectation that he would be allowed to live there indefinitely, the court would not allow that expectation to be defeated where it would have been inequitable to do so. In Vinden v Vinden ([1982] 1 NSWLR 618), the defendant offered to meet certain financial obligations of his father, allowing his father to retire and to keep his house. His father accepted the offer by retiring and allowing the defendant to make the payments. The defendant’s consequent licence to live in the house was found to be irrevocable – or put another way – ‘an equity arose which could be satisfied only by holding the plaintiff estopped from denying that the licence was irrevocable’. (at 625)
In this case, whatever the defendant’s expectation may have been when he left New York eight years ago, an expectation that he would be indefinitely employed by the plaintiff and thereby entitled to live in the house provided by the plaintiff indefinitely is in any event entirely inconsistent with the provisions of the contract accepted by the defendant on 4 May 2005, for example:
1.The contract period was from 4 May 2005 to 30 December 2006;
2.Three months notice was to be given by the plaintiff if the contract was not to be renewed;
3.The defendant might terminate at any time on three months notice;
4.Relocation expenses were to be paid if the defendant relocated to the Northern Hemisphere; and in particular,
5.In the event that the defendant decided to terminate the contract before the expiry date due to unworkable differences, the plaintiff was to pay his relocation expenses to New York.
There is no suggestion that the defendant was induced to enter into the contract as a result of any representation made by the plaintiff, for example, that he could expect that its terms would not be enforced. If the defendant had such a hope, it is not said to arise from any encouragement on the part of the plaintiff. The evidence and the terms of the contract itself are to the contrary. There is no relevant conduct of the plaintiff asserted by the defendant which could establish that the plaintiff would be taking unfair or unconscionable advantage of him by enforcing its rights under the contract he signed, so as to give rise to an equitable estoppel in his favour. (Rodgers and another v Moonta Town Corporation (1981) 37 ALR 49 at 53; Crabb v Arun District Council [1975] 3 All ER 865 at 871, 877)
The High Court said, in Rodgers and another v Moonta Town Corporation, above, at 52):
The provisions of s 192 and the following sections of the Real Property Act do not, in terms, limit the power of the court to make an ejectment order to cases in which no triable issue has emerged. However, assuming that the court has a discretion to decline to proceed with the determination of disputed questions of fact and law, it is apparent that it would not be right to refuse to make an order for possession if the relevant issues before the court had been fully explored and the evidence revealed that the applicant had a right to possession.
The contract of employment accepted and signed by the defendant on 4 May 2005 was not renewed. The reasons for its not being renewed are not relevant to this application. Notice of the plaintiff’s intention not to renew the contract was given to the defendant by letter dated 25 June 2006. The contract came to an end on 30 December 2006 by virtue of its terms. If the defendant has a claim against the plaintiff in relation to an expectation he had, or on any other basis, such a claim does not in my opinion, give rise to a licence coupled with an equity or an estoppel preventing the plaintiff from asserting a clear present right to possession of the property. The defendant is at liberty, as he has already demonstrated, to pursue an action against the plaintiff in a court of law or before the Beth Din.

The defendant has not established grounds on which the proceedings should be stayed. The defendant’s application filed on 21 February 2007 for a stay of proceedings is refused. In my opinion, the plaintiff is entitled to the relief it seeks on this application. The defendant has not pointed to any possible basis that would allow him a continuing right to occupy the property contrary to the terms of the contract he accepted on 4 May 2005.
On the application of the plaintiff filed on 14 February 2007:
1.I declare that the term of the contract of employment between the plaintiff and the defendant has expired.
2. I order that the defendant give up possession to the plaintiff within seven (7) days of the service of a copy of this order upon him of the land comprised in Certificate of Title Register Book Volume 5787 Folio 630 situated at 10 Windsor Road, Glenunga in the State of South Australia.
3. The order requiring the defendant to give up possession of the said land is to have endorsed on it the warning required under District Court Rule 225(1) and is to be served personally on the defendant.
On the application of the plaintiff following judgment, I order the defendant is to pay the plaintiff’s costs of both applications, to be taxed if not agreed.
As to the application of the defendant following judgment for a stay of execution of the order for possession, in my opinion, it is appropriate that the defendant have an opportunity to institute an appeal from the judgment without in the meantime having to vacate his home. I order pursuant to District Court Rule 300(2) a stay of execution of the order for possession, pending the institution by the defendant of an appeal within the time provided by the Rules.
Liberty to both parties to apply.