Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5) - [2012] FCA 390

FEDERAL COURT OF AUSTRALIA
Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5) [2012] FCA 390

Citation: Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5) [2012] FCA 390

Parties: ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE) v SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE); SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE); ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)

File number: VID 208 of 2010

Judge: DODDS-STREETON J

Date of judgment: 5 April 2012

Catchwords: PRACTICE AND PROCEDURE – Cross-examination – Defendants sought to cross-examine second plaintiff in relation to proceeds of sale of two company properties – Whether proposed line of cross-examination relates to pleaded claim or otherwise sufficiently notified

Cases cited: Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 discussed
Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 discussed

Date of hearing: 5 April 2012

Date of publication of reasons: 18 April 2012

Date of last submissions: 5 April 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 30

Counsel for the Plaintiffs/Cross‑Defendants: Mr C Gunst QC with Mr M Irving

Solicitor for the Plaintiffs/Cross-Defendants: Holding Redlich

Counsel for the Defendants/Cross Claimants: Mr BE Walters SC with Mr TR Messer

Solicitor for the Defendants/Cross Claimants: Moores Legal

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 208 of 2010

BETWEEN:
ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)
Plaintiff

SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE)
Cross-Claimant

AND:
SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE)
Defendant

ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)
Cross-Defendant

JUDGE:

DODDS-STREETON J

DATE:

5 APRIL 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

On 4 April 2012, in the course of the trial of the proceeding, senior counsel for the defendants, Mr Walters SC, sought to cross-examine the second plaintiff, Mr Devendhran Vadiveloo Pillay, in relation to the proceeds of sale of two properties of the company, which were sold in 2008 and 2009, for about $250,000 and $600,000 respectively. The plaintiffs objected to the proposed line of cross-examination on the ground that it was not relevant to any question validly at issue in the litigation and should be disallowed, save as going to credit. Mr Walters indicated that the defendants would allege that the sale of the first property was not recorded in the company’s accounts for the relevant period, and that the defendants had not been provided with accounts for the period in which the sale of the second property occurred.
On 5 April 2012, the parties made further submissions in relation to the question. The defendants submitted that the court was required to consider all of the evidence before it, and as the company…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 390
Decision Date: 5 April 2012

CaseChat Overview and Summary

Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5) involved a dispute between the plaintiffs, who were members of a religious corporation, and the defendants, who sought to challenge the management of the corporation's assets. The case was heard by the Federal Court of Australia, where the defendants sought to cross-examine one of the plaintiffs regarding the proceeds from the sale of two company properties. The central legal issues before the court were whether the defendants' proposed line of cross-examination related to the pleaded claims and whether it was sufficiently notified.

The court considered whether the proposed cross-examination regarding the proceeds from the sale of the company properties related to the pleaded claims or was otherwise sufficiently notified. The plaintiffs argued that the allegations concerning the proceeds from the sale of the company properties were not part of the defendants' pleadings and thus were not relevant to the pleaded claims. The court noted that the defendants' cross-claims did not include any specific allegations about the proceeds from the sale of the company properties. The court held that the proposed cross-examination did not relate to the pleaded claims and was not sufficiently notified, and therefore, the defendants were not permitted to pursue that line of inquiry.

Based on the court's reasoning and outcome, the defendants were not allowed to cross-examine the second plaintiff about the proceeds from the sale of the company properties. The court's decision reinforced the importance of ensuring that any cross-examination aligns with the pleaded claims and is sufficiently notified. The court's ruling prevented the defendants from introducing irrelevant or improperly notified evidence that could potentially disrupt the trial's course.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Gunst further submitted that any application to amend to incorporate the new allegations would, if granted, significantly expand and dislocate the course of the trial. BACKGROUND As the plaintiffs contended, the allegations of failure to account for the proceeds of sale of the company properties appear nowhere in the defendants’ pleadings. The defendants’ further amended cross-claim dated 4 November 2011 pleads:(a)that the company holds its assets on trust or is bound to apply them for the object of propagating the “ideals, the philosophy and practice of the religion known as Ananda Marga”;(b)that the religion has various rules and practices, including that monks and nuns must obey posting orders and the commands of the General Secretary of Ananda Marga Pracaraka Samgha (Central) (“AMPS Central”);(c)that on a proper construction of the company’s memorandum and articles, persons not members of Ananda Marga in good standing shall not remain members, directors or secretary of the company;(d)that company assets shall not be used contrary to the lawful directives of AMPS Central; and(e)that directors shall not treat company assets as if beneficially owned by the company or to satisfy their personal wishes or financial interests. The further amended cross-claim further alleges that various persons, including the second plaintiff, failed to obey posting orders, lost their spiritual titles in Ananda Marga and were thereby prohibited from acting as directors, members or secretary of the company, and, further, that other persons described as “supporting parties”, having failed to comply with letters of the General Secretary, also lost standing under the rules and practices of Ananda Marga and, thus, were no longer qualified to hold office as a director or to be a member or secretary of the company. The further amended cross-claim also pleads a conflict of interest in relation to the bringing and funding of the proceeding. Under the heading “Oppressive Conduct”, the further amended cross-claim, in paragraph 31, states that if, and only if, the members of the company are those identified by the plaintiffs, do the defendants make the contentions that are pleaded in the succeeding paragraphs 32 to 38. Paragraphs 32 to 38 of the further amended cross-claim plead that the company was incorporated for the sole purpose of being the vehicle by which the Ananda Marga religion was expressed, promoted and organised in Australia, and that subscribers had the expectation that the company’s affairs would be conducted consistently with the Ananda Marga religion’s rules and practices. The further amended cross-claim pleads that the company was required to give effect to the expectation notwithstanding the provision of the articles, and that by reason of the allegations in paragraphs 11 to 23 (which relate to disobedience of posting orders and non‑compliance with letters of the General Secretary) the company was not conducted consistently with the rules and practices of the Ananda Marga religion so as to give effect to the expectation. The defendants plead that, in the premises, the company’s conduct has been, and remains, oppressive, contrary to the interests of the members as a whole, and unfairly prejudicial or discriminatory to the defendants. By paragraph 38 of the further amended cross-claim, the defendants claim relief under s 233 of the Corporations Act2001 (Cth) (“the Act”) by reason of the above matters.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citation:		Ananda Marga Pracaraka Samgha Ltd v Tomar (No 5) [2012] FCA 390
Parties:		ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE) v SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE); SUNIL KUMAR SINGH TOMAR & ORS (ACCORDING TO THE ATTACHED SCHEDULE); ANANDA MARGA PRACARAKA SAMGHA LTD (ACN 003 193 879) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)
File number:		VID 208 of 2010
Judge:		DODDS-STREETON J
Date of judgment:		5 April 2012
Catchwords:		PRACTICE AND PROCEDURE – Cross-examination – Defendants sought to cross-examine second plaintiff in relation to proceeds of sale of two company properties – Whether proposed line of cross-examination relates to pleaded claim or otherwise sufficiently notified
Cases cited:		Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 discussed Gould v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 discussed
Date of hearing:	5 April 2012
Date of publication of reasons:	18 April 2012
Date of last submissions:	5 April 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Plaintiffs/Cross‑Defendants:	Mr C Gunst QC with Mr M Irving
Solicitor for the Plaintiffs/Cross-Defendants:	Holding Redlich
Counsel for the Defendants/Cross Claimants:	Mr BE Walters SC with Mr TR Messer
Solicitor for the Defendants/Cross Claimants:	Moores Legal

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 208 of 2010

JUDGE:	DODDS-STREETON J
DATE:	5 APRIL 2012
PLACE:	MELBOURNE