Carlingford Bowling, Sports & Recreation Club v Carabetta

[2024] NSWCA 76

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Carlingford Bowling, Sports & Recreation Club v Carabetta [2024] NSWCA 76

Hearing dates:

05 April 2024

Date of orders:

05 April 2024

Decision date:

05 April 2024

Before:

Meagher JA; Gleeson JA; White JA

Decision:

(1) Dismiss the applicant’s summons seeking leave to appeal with costs.

(2) Dismiss the applicant’s notice of appeal filed 19 December 2023 as incompetent and order the applicant pay the costs of that appeal.

Catchwords:

APPEALS – application for leave to appeal – where applicant club’s constitution provides that by-laws invalid unless “not inconsistent with” constitution – no arguable error identified in primary judgment – no question of principle – leave refused

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Carlingford Bowling, Sports & Recreation Club (Applicant)
Robert Carabetta (First Respondent)
Anthony French (Second Respondent)

Representation:

Counsel:
J Agius SC / S Erian (Applicant)
N M Bender SC / R J Pietriche (Respondents)

Solicitors:
McManus Lawyers (Applicant)
Pigott Stinson (Respondents)

File Number(s):

2023/459517; 2024/71130

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2023] NSWSC 1442

Date of Decision:

27 November 2023

Before:

Henry J

File Number(s):

2023/363100

ex tempore JUDGMENT

1. MEAGHER JA (delivering the reasons of the Court): On 27 November 2023, the primary judge (Henry J) made declarations that By-Laws 10(f) and 18(c) made by the board of directors of the applicant, Carlingford Bowling, Sports & Recreation Club (the Club), on 25 September 2023 (and in relation to By-Law 18(c)(ii), amended on 19 October 2023) were inconsistent with the Club’s constitution and accordingly invalid and of no effect (Carabetta & Anor v Carlingford Bowling, Sports & Recreation Club [2023] NSWSC 1442).

2. Those declarations were made on the application of the respondents, Mr Carabetta and Mr French. Each is and was a member of the Club at all relevant times. Mr Carabetta was a Bowling Member of the Club and claimed that his right to nominate for election to its board was adversely affected by By-Law 18(c). Mr French was a Social Member of the Club and claimed that his right to vote in board elections of the Club was adversely affected by By-Law 10(f).

3. The applicant seeks leave to appeal from those declarations of the primary judge. Leave to appeal is required because the final relief granted by the primary judge does not involve a matter at issue amounting to or of the value of $100,000 or more or otherwise satisfy s 101(2)(r) of the Supreme Court Act 1970 (NSW).

4. That leave should be refused for the reasons given by the primary judge. Her Honour was plainly correct to conclude that the two challenged By-Laws were inconsistent with the Club’s constitution and accordingly invalid. The application for leave raises no question of principle.

5. For these reasons, the following orders should be made:

(1)   Dismiss the applicant’s summons seeking leave to appeal with costs.

(2)   Dismiss the applicant’s notice of appeal filed 19 December 2023 as incompetent and order the applicant pay the costs of that appeal.

6. These are the orders that the Court proposes to make. Is there anything that either of the parties wishes to say in relation to those orders?

AGIUS SC: No, your Honour.

BENDER SC: No, your Honour.

7. The orders announced are the orders of the Court.

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