Faamate v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) ABN 90 103 392 182 - [2019] QSC 194

SUPREME COURT OF QUEENSLAND

CITATION:

Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) ABN 90 103 392 182 & Ors [2019] QSC 194

PARTIES:

TAUA MEAULI FAAMATE

(first applicant)
and

LAGILAGIA FAAMATE

(second applicant)
and

VAEA LOLE NOUATA

(third applicant)
and

SEGIA NOUATA

(fourth applicant)
and

MAIAVA PERETISO MULIAGA

(fifth applicant)
and

NAUMATI MULIAGA

(sixth applicant)
and

TUITEA MAFUTAGA FOE

(seventh applicant)
and

LEITU FOE

(eighth applicant)
and

TAGO AVE IATIGA

(ninth applicant)
and

SEUAANA TAOFIA MULIAGA

(tenth applicant)
and

LINE MULIAGA

(eleventh applicant)
and

FAALAA TUSI FANOLUA

(twelfth applicant)
and

ALA FANOLUA

(thirteenth applicant)
and

LUATUA ASOSILI SETEFANO

(fourteenth applicant)
and

TALALELEI SETEFANO

(fifteenth applicant)
and

FALEAUTO TALUVALE FA

(sixteenth applicant)
and

JUNIOR PAPUA

(seventeenth applicant)
and

SENIA PATO

(eighteenth applicant)
and

ASO AUKUSO

(nineteenth applicant)
and

TIANA AFAESE

(twentieth applicant)
and

LEAVEA JONES

(twenty-first applicant)

v
CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA-AUSTRALIA (IPSWICH CONGREGATION)
ABN 90 103 392 182
(first respondent)
and
KERITA REUPENA
(second respondent)
and
TIPI TISEMA
(third respondent)
and
LOLINI SAKAIO

(fourth respondent)

FILE NO:

SC No 12831 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

9 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 – 27 March 2019; supplementary submissions from the applicants received 3 April 2019, 2 August 2019; supplementary submissions from the respondents received 4 April 2019, 2 August 2019

JUDGE:

Wilson J

ORDERS:

I declare that:

1.   The applicants are members of the first respondent, except for the nineteenth and twentieth applicants.

2.   The purported amendment to the first respondent’s constitution which is alleged to have occurred on 4 September 2016 is invalid.

3.   The first respondent’s constitution is the document exhibited as TMF-2 to Mr Taua Meauli Faamate’s affidavit filed herein.

4.   Any appointment to the first respondent’s management committee, not in compliance with clauses 11 to 13 of the first respondent’s constitution, was invalid.

I order that:

1.   The application for winding up be dismissed.

2.   The parties will provide a draft Order giving effect to the reasons for judgment within fourteen days.

3.   The question of costs is adjourned to a date to be fixed.

CATCHWORDS:

CORPORATIONS – WINDING UP – OTHER GROUNDS FOR WINDING UP – JUST AND EQUITABLE – OTHER CASES – where the applicants seek winding up of a solvent ongoing charitable organisation – whether the Association should be wound up on the just and equitable ground

Associations Incorporation Act 1991 (Qld) s 3, 48, 60, 61, 62, 69A, 71, 89, 90

Ananda Marga Pracaraka Samgha Ltd v Tomar (No 2) [2010] FCA 1342, cited

ASIC v ABC Fund Managers [2001] VSC 383; (2000) 39 ACSR 443, cited
Australian Public Service Association (Fourth Division Officers) v Lawrence (1982) IR 166, cited
Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49, cited
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492; [1972] 2 WLR 1289, cited
Finch v Oake [1896] 1 Ch 409, cited
Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641, considered
Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, cited
In re Bleriot Manufacturing Aircraft Company Ltd [1916] TLR 253, cited
Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 125 ACSR 227, followed
In re Sick and Funeral Society of St John’s Sunday School, Golcar [1973] Ch 51, cited
Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105, cited
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305, cited
Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc [2013] QCA 358; [2015] 1 Qd R 542, cited
Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247, applied
Reupena v Senara [2016] WSSC 140, cited
Salamon Nominees Pty Ltd v Moneywood Pty Ltd [1998] QCA 440, cited

Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408, cited

COUNSEL:

V B Brennan for the applicants

P K O’Higgins for the respondents

SOLICITORS:

Corney & Lind Lawyers for the applicants

Neumann and Turnour for the respondents

The proceeding

The dispute in this proceeding involves two competing groups in the Congregational Christian Church in Samoa-Australia (Ipswich Congregation) (“the Association” or “the Ipswich Church”).
The Association is conducted as a church and is a registered charitable organisation[1] incorporated under the Associations Incorporation Act 1981 (Qld) (“the Act”).
[1]Australian Charities and Not-for-profits Commission Registration Search, exhibit 5 (trial bundle), tab 24.
The applicants seek orders winding up the Ipswich Church on the just and equitable ground.[2] Alternatively, they sought the appointment of a receiver,[3] however, no longer seek such an alternate order.[4]
[2]Amended Originating Application filed 3 August 2018 (“Application”), exhibit 5 (trial bundle), tab 1, p 2, [1]-[4].
[3]Application, exhibit 5 (trial bundle), tab 1, p 2-3, [5].
[4]Transcript of the hearing on 1 April 2019, p 58, line 1-10.
At the commencement of the trial, the respondents openly accepted the appointment of a receiver as a means of avoiding this trial.[5] However, on day three of the trial the respondents’ counsel submitted in opening address:[6]
“MR O’HIGGINS: Your Honour, the applicant’s case is seeking to wind up the association as your Honour has heard on the grounds of insolvency, and on the ground that is just and equitable that the association of the church be wound up. They maintain the alternative belief for the appointment of a receiver. The respondent’s opposable of the relief sought.”
[5]Exhibit 3 (written submissions on the issue of appointment of a receiver).
[6] Transcript of the hearing on 20 March 2019, p 50, line 32 to 36.
The applicants ultimately submitted that they did not consider the appointment of a receiver to be an “appropriate” remedy.[7] At the end of the trial, the applicants formally abandoned the alterative relief sought of the appointment of a receiver.[8]
[7]Transcript of hearing on 22 March 2019, p 78, line 38-45.
[8]Transcript of the hearing on 1 April 2019, p 58, line 1-10.
The respondents oppose winding up of this solvent[9] ongoing charitable organisation providing religious and community activities for the Samoan Christian community.
[9]Exhibit 4 (expert report). The applicants have conceded the Association is solvent, see exhibit 29 (applicants’ final submissions), p 4, [1].
The respondents’ primary position is that the application to wind up ought to be refused and no appointment of a receiver ought to be made.
However, if it became necessary to do so in the context of an appointment of a receiver, the respondents would concede that all of the applicants[10] were members (plus those on their list for which Mr Faamate, the first applicant, did not account and which appear on the respondents’ list) for the purpose of a receiver convening a general meeting to determine the Ipswich Church’s future.[11]
[10]Save for Junior Papua and Segia Papua, Aso Aukuso and Tiana Afaese, see Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 11, p 358, [40]-[41]).
[11]Exhibit 30 (respondents’ final submissions), p 29, [137].
The respondents considered that this relief is a less drastic means of resolving the dispute than winding up (a remedy of last resort), particularly for an otherwise solvent entity.[12]
[12] Exhibit 30 (respondents’ final submissions), p 1, [4].
The respondents have, upon a request from me, provided a draft order and affidavits by Mr Harris and Mr Connelly who both consent to be appointed by the Court to act as a receiver of the Association.[13]
[13]Affidavit of William James Harris affirmed 2 August 2019, received 2 August 2019; Affidavit of Anthony Norman Connelly sworn on 2 August 2019, received 2 August 2019; draft Order received 2 August 2019.
The applicants’ further amended application[14] also seeks that the Court declare that:
a.the purported amendment to the first respondent’s constitution which is alleged to have occurred on 4 September 2016 is invalid;
b.the purported undocumented amendment to clauses 11 and 12 of the first respondent’s constitution which is alleged to have occurred on or about 20 October 2013 is invalid;
c.the first respondent’s constitution is the document exhibited as TMF-2 to Mr Taua Meauli Faamate’s affidavit filed herein;
d.the appointment of the second, third and fourth respondents as the first respondent’s committee is invalid; and
e.the applicant is a member of the first respondent.
[14] As amended by leave on 26 March 2019.
The applicants’ further amended application[15] seeks the following order:
a.the first respondent take all reasonable steps to register with the Office of Fair Trading Queensland the document exhibited as TMF-2 to Mr Taua Meauli Faamate’s affidavit as the first respondent’s constitution.
[15] As amended by leave on 26 March 2019.
The declarations sought by the applicants form part of the underlying issues of the winding up application.[16]
[16] List of Agreed Issues as at 28 March 2019.

Legal principles: winding up on just and equitable grounds

Pursuant to section 90(1)(e) of the Act, an incorporated association may be wound up by the Court if the Court is of the opinion that it is just and equitable to do so.
This ground of winding up, on just and equitable grounds, confers upon the Court a discretionary power of a very wide character.[17] The words “just and equitable” are words of the widest significance, and do not limit the jurisdiction of the Court to any case.[18] It is a question of fact and each case must depend on its own circumstances.[19]
[17]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [135], referring to Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492.
[18]In re Bleriot Manufacturing Aircraft Company Ltd [1916] TLR 253 at 255.
[19]In re Bleriot Manufacturing Aircraft Company Ltd [1916] TLR 253 at 255.
However, the Court would decline to make a winding up order on the just and equitable ground where there is an alternative means of redress short of such an order.[20]
[20]Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227 at [78].
Section 89(1) of the Act states that an incorporated association may be wound up by special resolution of the members passed at a general meeting called for that purpose. A special resolution must be passed by the votes of three quarters of the members who are present at the meeting and entitled to vote.[21]
[21]Associations Incorporation Act 1981 (Qld) s 3(4).
It is noted that this alternative means of liquidation in the form of voluntary winding up in section 89(1) of the Act requires a special majority. It follows that a compulsory winding up will only be ordered where the circumstances are so exceptional as to justify the Court in disregarding the statutory requirement in a members voluntary winding up of three-fourths majority.[22]
[22]See McPhersons Law of Company Liquidation, Thomson Reuters, online, [4.225], referring to sections 9 and 491(1) of the Corporations Act 2001 (Cth).
In ASIC v ABC Fund Managers,[23] Warren J (as her Honour then was) said:[24]
“There are general fundamental principles applied by the courts with respect to a winding-up application on the just and equitable ground. First, there needs to be a lack of confidence in the conduct and management of the affairs of the company: see Loch v John Blackwood Ltd [1924] AC 783 at 788; [1924] All ER 200. Second, in these types of circumstances it needs to be demonstrated that there is a risk to the public interest that warrants protection. Third, there is a reluctance on the part of the courts to wind up a solvent company”.
[23][2001] VSC 383; (2000) 39 ACSR 443.
[24][2001] VSC 383; (2000) 39 ACSR 443 at [119].
The “lack of confidence” must be grounded on the conduct of the directors and not in regard to their private life or affairs, but in regard to the company's business. The lack of confidence cannot spring from being outvoted on the company policy or on what is called the domestic policy of the company.[25] The lack of confidence can be based on lack of probity in the conduct of the affairs of the company.[26]
[25]Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 at [118] per Hasluck J.
[26]Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 at [118] per Hasluck J, citing Loch v John Blackwood Ltd [1924] AC 783.
One of the principal reasons for the remedy, which developed from partnership law,[27] is to allow a member to withdraw their capital investment from the firm, where because it is solvent, it is not suitable for winding up in insolvency.[28]
[27] Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227 at [77].
[28]See McPherson, B, ‘Winding up on the “Just and Equitable” Ground’, Modern Law Review, May 1964, 282 at 286; see also McPhersons Law of Company Liquidation, Thomson Reuters, online, [4.225], citing the remarks of Lord Cairns in Re Suburban Hotel Co (1867) LR 2 Ch App 737 at 742-743, set out at [4.10]; Re Co-op Development Funds of Australia Ltd (No 3) (1978) 3 ACLR 437; [1977-78] ACLC 40-396 at 468 (ACLR).
The analogy between a corporation and an association and particularly the members of each (and the relationship of those members to each other and the body corporate) is one which was explained by King CJ in Chiropractic and Osteopathic College of SA Inc v Struthers.[29] In that case, the Chief Justice observed:[30]
“... Incorporation under [the South Australian Act] renders the association and its members for the time being a body corporate (section 12), capable of holding property and of suing and being sued in its own name. Other powers are conferred by the Act on an incorporated association. I think that there is a valid analogy between the relationship of members of an incorporated association and body corporate on the one hand, and the relationship of members of a company incorporated under the Companies Act and the body corporate on the other. On the analogy of the principles applied in the cases under the Companies Act it seems to me that upon incorporation each member of the Association and the body corporate enter into a contract with each other in terms of the rules and that thereafter there is not only a binding legal relationship between the members inter se but also between each member and the incorporated association. Similarly, when a member joins an already incorporated association, a contract in terms of the rules comes into existence”.[31]
[29]Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49.
[30]Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49 at 51.
[31]See also Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc [2013] QCA 358; [2015] 1 Qd R 542 at 551, [31] in which Fraser JA referred to an extensive number of matters by which incorporated associations have “striking similarities with companies”.
A person seeking winding up on the just and equitable ground must come to the Court with clean hands.[32]
[32]Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492; [1972] 2 WLR 1289 at 387 (AC); See also Ruut & Charest Pty Ltd v Head (1996) 20 ACSR 160 where Santow J did not dismiss the application for winding up merely because the applicant had not come with clean hands but it was “an important factor in the exercise of the court’s discretion along with other factors ...”.
The classes of conduct which justify the winding up of a company on the just and equitable ground are not closed, and the ground brings in broad equitable considerations.[33]
[33]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [136], referring to Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492.
The courts have regard to pre-existing categories of cases, without necessarily treating those categories as rigid or comprehensive.[34] Those categories include where:
a.it becomes impossible to achieve the objects for which the company was formed;
b.it has become impossible to carry on the business of the company; or
c.there was been serious fraud, misconduct or oppression in regard to the affairs of the company.[35]
[34]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [136].
[35]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [136] citing International Hospitality Concepts Pty Ltd v National Marketing Concepts Inc (No 2) (1994) 13 ACSR 368 at 371 per Young J.
It is not easy to apply the recognised categories where a company is not a commercial company.[36]
[36]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [137].
Although the categories of cases are not closed and courts have been reluctant to define the circumstances in which an association or a company should be wound up on the just and equitable ground, the reported cases establish some categories of conduct which, in all the circumstances, will provide a sufficient basis to wind up a body corporate on the just and equitable grounds, including:
a.if there is oppression by those controlling the defendant in the expulsion of members, as directors and members of the body corporate;[37]
b.if there is a lack of confidence in the conduct and management of a body corporate’s affairs;[38]
c.if the body corporate has not carried on its business candidly and in a straightforward manner with the public, or failed to comply with regulatory requirements relating to financial records and reports;[39]
d.if there is a breakdown of trust and confidence of the members;[40] or
e.if there is a deadlock which, in effect, totally inhibits the functioning of the body corporate. For example, circumstances in which management of an association is deadlocked or paralysed by a loss of mutual trust and confidence between the members of the association.[41]
[37]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [137].
[38]Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 at [152] per Lindsay J citing In the matter of SJG Securities Pty Limited [20113] NSWSC 588 at [13] per Black J.
[39]Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 at [152] per Lindsay J citing In the matter of SJG Securities Pty Limited [20113] NSWSC 588 at [13] per Black J.
[40]Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492 at 380 (AC).
[41]Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 at [153] per Lindsay J.
In this case, the Association is solvent.[42]
[42]Exhibit 4 (expert report). The applicants have conceded the Association is solvent, see exhibit 29 (applicants’ final submissions), p 4, [1].
The applicants concede that winding up a solvent body corporate is a “remedy of last resort”,[43] however still assert that “if there was going to be an association in this State that needed to be wounded up on the just and equitable grounds, this is it”.[44]
[43]Exhibit 29 (applicants’ final submissions), p 58, [140], citing Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227.
[44]Transcript of the hearing on 18 March 2019, p 7, line 18-19.

The reasonableness of the applicants’ position needs to assessed by consequence of the events and circumstances upon which the application is founded and what is necessary to address them:[45]
[45]Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227 at [46]-[52], footnotes omitted.
“[46] In my view, the reasonableness of the applicant’s position is to be assessed by reference to the consequences of the events and circumstances upon which the application is founded and what is necessary to redress them. If they could be redressed only by a winding up, then the pursuit of a winding up order would not be unreasonable in the relevant sense. On the other hand, if there is an alternative remedy which would equally redress those consequences, then an applicant’s preference for a winding up order would usually be considered to be unreasonable, because ordinarily the winding up of a solvent company will have far reaching effects. It will not only deprive the other shareholders of their investment in a solvent enterprise, but it will also be likely to affect the interest of others, such as the company’s employees and third parties whose interests from transacting business with the company would be affected. It is the likelihood of substantial and wide ranging prejudice of this kind which would cause judges to describe a winding up of a solvent company in this context as an extreme step. In Hillam v Ample Source International Ltd (No 2), the Full Court of the Federal Court (Emmett, Jacobson and Buchanan JJ) said that although there is no presumption against the winding up of a solvent company, a court should bear in mind the “warnings given in the authorities, that an order to wind up a solvent company is an extreme step”.
[47] The evident purpose of the proviso in s 467(4) is to avoid the extreme step of a winding up if there is an alternative and adequate remedy. Consequently a winding up will be ordered if there is no other remedy which is adequate, in that it would redress the consequences of the facts and circumstances which are the basis for relief. This is another way of saying what McPherson J said in Re Dalkeith Investments Pty Ltd about the statutory predecessor of s 467(4) namely “that winding up is to be regarded as a remedy of last resort and which ought not to be granted if some other less drastic form of relief is available and appropriate. In referring to a winding up as “drastic form of relief”, McPherson J was referring to the far reaching consequences of a winding up. In referring to an alternative form of relief which was “appropriate”, his Honour was referring to what was necessary, in the interests of the applicant, to redress the consequences of the relevant events and circumstances.
[48] That principle has been endorsed in many cases: see for example: French & Ors v Smith & Ors; Netbush Pty Ltd v Fascine Developments Pty Ltd; Turner v Ulicorp Pty Ltd; Short v Crawley (No 30); Re Hollen Australia Pty Ltd; Holt v Burnside; Tomanovic & Anor v Global Mortgage Equity Corporation Pty Ltd & Anor; In the matter of Amazon Pest Control Pty Ltd and Ian Allan Byrne v AJ Byrne Pty Ltd.
[49] In Short v Crawley (No 30), White J (as he then was) discussed the statement by McPherson J in Re Dalkeith Investments Pty Ltd and explained its relevance to the operation of s 467(4) in terms which I would respectfully adopt:
“In Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247, McPherson J … said (at 252) that winding-up is to be regarded as a remedy of last resort and one which ought not to be granted if some other less drastic form of relief is available and appropriate. Presumably, if some other less drastic form of relief is available and appropriate, it can then be seen that the applicant for winding-up is acting unreasonably in seeking such an order, even if such an applicant has cogent reasons to advance in support of the application … [W]here the various parliaments have re-enacted s 367(3) of the Companies Code as s 467(4) of the Corporations Law and then as s 467(4) of the Corporations Act … it may be taken that the legislatures have adopted the judicial construction of the provision, particularly where the construction is by an acknowledged authority in the field.”
[50] Against those authorities is Re Bluechip Development Corporation (Cairns) Pty Ltd where that passage from the judgment of White J was criticised as follows:
“In Re Dalkeith Investments Pty Ltd it was said that the effect of an earlier provision similar to s 467(4) of the Corporations Act was that winding up “is to be regarded as a remedy of last resort and one which ought not to be granted if some other less drastic form of relief is available and appropriate”. In Short v Crawley (No 30) (Short) with respect to this statement, it was said, “Presumably, if some other less drastic form of relief is available and appropriate, it can then be seen that the applicant for winding up is acting unreasonably in seeking such an order, even if such an applicant has cogent reasons to advance in support of the application.” ... Section 467(4) identifies two matters that, taken together, would justify not making a winding up order, namely, that some other remedy is available to the applicant, and that the applicant is acting unreasonably in seeking to have a company wound up instead of pursuing another remedy. The passage from Short, in my respectful opinion, gives no weight to the reference to an applicant acting unreasonably.” (footnotes omitted)
[51] In my respectful opinion, that criticism of Short v Crawley (No 30), and thereby of Re Dalkeith Investments Pty Ltd, did not pay sufficient regard to White J’s reference to an alternative remedy which is “appropriate”, meaning that it is appropriate to redress the position in which the appellant or the company have reached as a result of the relevant events and circumstances.
[52] It follows that I differ from the trial judge in the present case, insofar as he declined to apply the statement in Re Dalkeith Investments Pty Ltd. His Honour apparently regarded that statement as being too restrictive of the power to order a winding up, even where, as he recognised, a court should keep in mind that the winding up of a solvent company is an extreme step. In my view, that is a warning which is not inconsistent with what was said in Re Dalkeith Investments and the cases which have applied it.”
The respondents submit that there does not appear to be any Australian decision in which a court has wound up a solvent charitable incorporated association on the just and equitable ground.[46]
[46] Exhibit 30 (respondents’ closing submissions), p 6, [22].
The closest authority to the circumstances of this case is that of Gregor v British-Israel World Federation (NSW)[47] which involved an application to wind up a non-profit company (with some religious aims), which was limited by guarantee,[48] on the just and equitable ground.
[47] [2002] NSWSC 12; (2002) 41 ACSR 641.
[48]Defined in section 9 of the Corporations Act 2001 (Cth) as “a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up”; such companies are public companies (section 112(1)).
In that case, Austin J was persuaded that there was a practical impossibility of carrying out the activities of the company because of a bifurcation of the board, which could not be remedied by re-admission of members.[49] The two bitterly opposed factions were fighting for control at board level and both purported to be holding meetings and to be running the organisation. The dispute about membership could not be resolved because it took a properly constituted board to exercise its discretion to admit or refuse members and the records were an “irretrievable mess”. This had occurred at a time when the company had received a bequest to be used for the objects of the entity and the board could not make any decisions.
[49]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [139]-[140].
The banks had “stopped” the company’s bank accounts. A bequest was left to the organisation, the application of which the court found could best be directed by the overseas entity in accordance with the wishes of the testator.[50] The overseas entity with which the company was affiliated had withdrawn its endorsement and its representative gave evidence about the dis-endorsement and said that on winding up it would not seek to benefit from the assets but would hold the assets as “security” for the re-establishment of another entity under properly constituted and acceptable management.[51] Austin J found that winding up provided the “best chance” for the assets, including the bequest, to be used for the purposes of the company.[52]
[50]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [149].
[51]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [72].
[52]Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641 at [158]-[160].
Whilst there is no presumption against the winding up of a solvent company, a court should bear in mind the “warnings given in the authorities, that an order to wind up a solvent company is an extreme step”.[53]
[53]Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227 at [46] citing Hillam v Ample Source International Ltd (No 2) [2012] FCAFC 73; (2012) 202 FCR 336 at 350 [70].
Winding up is a remedy of last resort; one only to be considered where there is no alternative remedy that would equally redress the legitimate concerns of those applying for winding up.[54]
[54]Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247; Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227.
Accordingly, the grounds relied upon by the applicants ought to be scrutinised with care.
If an alternative remedy which is less drastic and extreme than winding up is available, then the Court would not order winding up in lieu of that lesser remedy.[55]
[55]Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247; Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227.

Background

The Ipswich Church was established in 1988[56] by five families in Goodna and was incorporated under the Act in 1991,[57] principally to allow it to be the legal owner of real property.[58]
[56]Exhibit 7 (list of agreed facts), [1].
[57]Exhibit 7 (list of agreed facts), [3].
[58]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 162, [6]-[9].
The Association’s objects include:[59]
a.providing premises, facilities, leadership and teachings to give spiritual and pastoral care to the Samoan people and other people, and enable them to protect and practise their faith;
b.acting as a cultural centre for the Samoan people and others, holding religious services, funeral services, marriages, meetings or any other form of gathering to provide, foster and promote the religious beliefs, social customs, practices and cultural beliefs of those people;
c.guiding and helping the Samoan communities residing in Australia and Samoa to practise their religion and provide such groups with the personnel and finances to establish their own organisations, so as to further the religious and cultural needs and interests of these communities;
d.holding and arranging fundraisings, the proceeds of which are devoted to Church funds for its development;
e.holding and arranging social functions, gatherings or meetings for the purpose of supporting and furthering the traditional island cultural pursuits; and
f.conducting lectures, classes and other forms of instruction to promote the continuance of traditional family, religious and social customs, beliefs and practices.
[59]Constitution, exhibit 5 (trial bundle), tab 10/11.
The Association was, and still is (according to many of the respondents’ witnesses),[60] a hub for spiritual and community activities for its congregation, including:[61]
a.church services;
b.Sunday school;
c.bingo nights;
d.youth groups, men’s groups, women’s groups and bible studies; and
e.a meeting place and hub for the surrounding community.[62]
[60]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 139, [35]; Affidavit of Tepatasi Melila, exhibit 14 (respondents’ book of affidavits), tab 3, p 90, [27]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 181, [101]; Affidavit of Lolini Sakaio, exhibit 14 (respondents’ book of affidavits), tab 13, p 460, [40]; Affidavit of Michelle Seupule, exhibit 14 (respondents’ book of affidavits), tab 14, p 467, [25]; Affidavit of Temukisa Tisema, exhibit 14 (respondents’ book of affidavits), tab 17, p 488, [68]; Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 502, [52].
[61]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 139, [35].
[62]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 141, [49].

Affiliation with the Mother Church

For 28 years, the Association was one of a network of Australian associations which had a direct affiliation with the Congregational Christian Church in Samoa (“the Mother Church” or “the Samoan Church”).
That affiliation is enshrined in the original constitutional objects[63] whereby its first object was that it was a part of a network of Churches that had, as its head, the Congregational Christian Church in Samoa (the Samoan Church).
[63]Constitution, exhibit 5 (trial bundle), tab 10/11.
The Mother Church is a transnational church with a number of Districts worldwide. Within these Districts, there are a number of subdistricts which are divided according to their locality and region and within each subdistrict there are a number of parishes. The parishes are, generally, incorporated associations such as the Association.[64]
[64]Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 23, [11].
An “Elder Minister” oversees each subdistrict. A single Elder Minister is selected to be the Representative of the District in the Churches Ministerial Sub-Committee in Samoa.[65]
[65] Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 23, [13].
The Association was, for all intents and purposes, the Ipswich Parish of the Church. For this reason, the Association’s members are often called “Church Members”, and the Association is sometimes called “the Ipswich Congregation” or “the Ipswich Church”.[66]
[66] Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 23, [15].
Mr Faamate, the first applicant, and a past secretary of the Association, sets out the connection between the Association and the Mother Church:[67]
[67]Affidavit of Taua Faamate, exhibit 13 (applicants' book of affidavits), tab 6, p 97, [56].
a.the Association has regularly participated in the Law Preacher Circuit managed by the Mother Church. This is a rotating Preaching Circuit where Lay Preachers will travel to the various member Churches of the Mother Church to preach. The Association has historically hosted these Lay Preachers.
b.the Association has always sent delegates to participate at the Mother Church’s annual conference held in May, where all members Churches of the Mother Church gather (even where those churches are established outside of Samoa, such as in Australia, New Zealand, America and Fiji).
c.I recall that the Mother Church made an initial cash contribution of $15,000.00 when the Association opened the Church Building and Minister’s Residence at 11 Bailee Street, Goodna;
d.the Association makes financial contributions annually to the Mother Church in the form of “Taulaga” contributions. This can be seen in the audited statements of the Association annexed to the Mr Kerita Reupena’s Affidavit sworn 6 February 2017 as follows:
i.the Non-Current Liability described as “EFKS Toomaga”. The EFKS Toomaga Fund (EFKS stands for “Ekalesia Faapotopotoga Kerisiano Samoa”) is administered and operated by the Mother Church. The Association is able to borrow funds and makes payments to the Mother Church through this fund.
ii.the expenses of the Association described as “Offering to Samoa”.
e.the winding-up clause of the constitution of the Association states that all distribution of surplus assets shall be given or transferred to the Mother Church. This clause is still present in the amended constitution (annexed to the Mr Kerita Reupena’s Affidavit sworn 6 February 2017).
It is noted that Reverend Reupena, the second respondent, states that the Mother Church has never provided financial assistance to the Association.[68]
[68]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 163, [13].

Reverend Reupena

The principal Minister (and Chair) of the Ipswich Church has been, since 1988, Reverend Kerita Reupena.[69]
[69]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 161, [1]; Exhibit 7 (list of agreed facts), [2].
Reverend Reupena was elected by the then members of the Ipswich Church in mid-1988 and formally appointed (a process known as being “sealed”) as the Minister on 24 September 1998.[70]
[70]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 162, [7].
Reverend Reupena provides guidance and teaching in matters of Christian faith and pastoral care to church members. Reverend Reupena states that as the leader of the church, he has ultimate responsibility and oversight of all administrative and financial matters.[71]
[71]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 162, [8].
A Minister cannot be engaged in a ministerial post in the Mother Church without a wife[72] and Reverend Reupena is assisted by his wife Mrs Binary Reupena.[73] On the evidence, it is clear that Mrs Reupena plays an important part in the Association’s affairs.
[72]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 134, [5].
[73]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 134, [3]-[6].
The Chief Justice of Samoa in Reupena v Senara [2016] WSSC 140 (at first instance) described the position of Minister for a congregation of the Samoan Mother Church (such as Reverend Reupena) in the following terms:[74]
“With Samoa, a minister of a village church is chosen and appointed by the congregation of that village. His remuneration is paid for by the congregation from voluntary donations by its members. There is no fixed remuneration, a minister’s remuneration depends on what the members of the congregation can afford and are willing to donate. The congregation can also terminate the service of the minister if they want to any time without having to consult the Church [in Samoa] or its governing body. It is unheard of that a minister can sue a village in Court if his service as minster is terminated by whatever reason by the village congregation and many ministers have been terminated over the years. The church building where religious services are held is also built by the village congregation and belongs to the village and not the Church [in Samoa]. The residence of the minister is also built by the village congregation on village land and belongs to them. The use of the residence by the minister is rent free. A minister occupies a special position within a village and is accorded special treatment and the highest respect in accordance with Samoan customs and the Christian beliefs of the Samoan people. He is the spiritual father of the village. In such circumstances, there can be no contract between a minister and the Church [in Samoa]. The relationship is one between the minister and the village congregation and it is not contractual”.
[74]Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, a copy of the decision is annexed at TMF-5, p 58-83, see [56].

There is evidence that in relation to the Association, it is not for the Mother Church to decide who the Minister should be of the Church[75] but rather it is a matter for the congregation to choose their Minister.[76]
[75]Transcript of hearing on 18 March 2019, p 67, line 37-38; To allow an outside body to choose the minister would be inconsistent with the contractual nature of the relationship between the members and the association – such a provision if expressed in the rules would be void: G E Dal Pont, Law of Associations (LexisNexis, 2018) [6.96].
[76]Transcript of hearing on 18 March 2019, p 68, line 5.
It is clear from the evidence that Reverend Reupena effectively rules the Association with a dominating presence.
Not only was Reverend Reupena the pastor of the Church but during the life of the Association, he has been the Association’s President[77] and Chairman.[78]
[77]Transcript of the hearing on 20 March 2019, p 60, line 39 (cross-examination of Binary Reupena); Transcript of the hearing on 21 March 2019, p 44, line 15-16 (cross-examination of Binary Reupena).
[78]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 161, [1]; Exhibit 7 (list of agreed facts), [2].
Reverend Reupena was also one of a select number of pastors who, together, formed the Elders’ Committee of the Samoan Church.[79]
[79] Transcript of the hearing on 26 March 2019, p 30, line 43-46 (cross-examination of Kerita Reupena).

The Association’s assets and funding

The Association is solvent.[80]
[80]Exhibit 4 (expert report). The applicants have conceded the Association is solvent, see exhibit 29 (applicants’ final submissions), p 4, [1].
The applicants initially contested the Association’s solvency, however, at the hearing[81] they ultimately conceded that the Association is solvent.[82] The applicants submit that whilst the Association is solvent the Association is still in a precarious position of being “cash poor”.[83]
[81]        Exhibit 8 (List of Agreed Issues as at 14 March 2019), p 3.
[82]        Exhibit 29 (applicants’ final submissions), p 4, [1].
[83]        Exhibit 29 (applicants’ final submissions), p 65, [151.(e)].
The Association currently owns land[84] purchased in 2008 as an investment[85] and the church premises[86] comprising a manse (pastor’s residence), church hall (which seats about 1,000 people), the church building itself (which seats about 400 people), and a volleyball/basketball court, set over about 2 acres.[87]
[84]Title Search for Lot 34 on SP 246354 and Title Search for Lot 44 on RP 199393, exhibit 5 (trial bundle), tabs 22 and 23.
[85]Exhibit 7 (list of agreed facts), [4]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 184, [108]-[110].
[86]Exhibit 7 (list of agreed facts), [5].
[87]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 184, [109].
The Ipswich Church acquired the vacant land and built the hall in 1999. The church building, manse (the residence for Reverend Reupena and Mrs Reupena) and car park were completed in 2011.[88]
[88]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 140, [42].
Bingo is run from the church hall. The bingo receipts, donations, and fundraising activities form the Association’s main income.[89] The members’ voluntary contributions also paid for the pastor’s salary.[90]
[89]Exhibit 7 (list of agreed facts), [38]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 184, [113].
[90] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 163, [13].
The Ipswich Church’s financial statements at the end of 2018 recorded its land and buildings at $2.78 million and its total assets at $3.39 million. Mr Lucas, the independent expert, concluded it had net assets of $2.576 million as at 31 December 2018.[91]
[91]Exhibit 4 (expert report), p 13, [3.2.3].
Reverend Reupena is the sole paid employee of the Association. His wages and superannuation contributions are funded by donations and offerings of the Association’s members.[92]
[92]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 163, [13].
As a charitable organisation, the members of the Ipswich Church are not entitled to a share in the net assets on winding up.[93]
[93]Constitution, clause 29, exhibit 5 (trial bundle), tab 10/11.
If the Association is wound up then the constitution dictates that any surplus of assets shall be given or transferred to the funds in the Mother Church, or to donate to any parish or congregations of the Congregational Christian Church in Samoa – in Australia, being institutions having objects similar to the objects of the Association.[94]
[94]Constitution, clause 29, exhibit 5 (trial bundle), tab 10/11.

Disputes with the Mother Church

The Association was, until late 2016, directly affiliated with the Mother Church; such an affiliation was recognised by the Association’s constitution.
There have been ongoing disputes with Reverend Reupena and the Mother Church which underlie the disputes presently before the Court.
The members are now split into two groups euphemistically called “the Remainder Group” (named by virtue of their desire to “remain” as part of the Mother Church) and “the Reupena Group” (named after the second respondent who is the Church pastor and the Association’s permanent President).
The applicants in the proceedings are the Remainder Group.
The second to fourth respondents form part of the Reupena Group. The third respondent was the Association’s secretary[95] at the time the proceedings were commenced.[96] The fourth respondent was the Association’s treasurer in 2017,[97] having been appointed on 11 December 2016 with a commencement date of 1 January 2017.[98] However, according to the minutes of general meeting on 20 December 2015[99] and the Office of Fair Trading Association extract records as at 17 November 2016,[100] Mrs Faamaau Moe was the treasurer at the time the proceedings were commenced.[101]
[95]Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 495, [6]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 167, [37].
[96]        Originating Application filed 9 December 2016.
[97]Affidavit of Lolini Sakaio, exhibit 14 (respondents’ book of affidavits), tab 13, p 456, [3]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 167, [37].
[98]        Affidavit of Nuuialii Afele, exhibit 14 (respondents’ book of affidavits), tab 1, p 67.
[99]        Affidavit of Nuuialii Afele, exhibit 14 (respondents’ book of affidavits), tab 1, p 51.
[100]Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 38. See also transcript of the hearing on 21 March 2019, p 6, line 4 to 14 (cross-examination of Binary Reupena: Mrs Reupena states Mrs Moe is the treasurer in 2016).
[101]       Originating Application filed 9 December 2016.
In March 2015, Reverend Reupena was dismissed from the Elders’ Committee.
On 15 March 2015, Reverend Reupena attended a general meeting of the Association and informed attendees words to the effect that the Mother Church had purportedly decided to remove him as an Elder Minister and that he and Mrs Reupena were considering challenging the decision by Court proceedings.[102] Reverend Reupena and his wife asked the members if they could borrow $50,000 to pursue that litigation.[103]
[102] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 11, p 362, [55].
[103] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 11, p 362, [55].
The Association lent Reverend Reupena and Mrs Reupena $50,000 to pursue Reverend Reupena’s litigation against the Samoan Church.[104] The final repayment for this loan occurred on 4 August 2017.[105]
[104]Exhibit 7 (list of agreed facts), [8].
[105]Exhibit 7 (list of agreed facts), [20].
Reverend Reupena commenced proceedings in Samoa against the Mother Church.
On 3 August 2016, in a published decision of the Samoan Supreme Court, Chief Justice Sapolu dismissed Reverend Reupena’s proceedings against the Mother Church (“the Samoan Supreme Court decision”).[106] However, this decision was overturned by Court of Appeal of Samoa on 31 March 2017.[107]
[106]Reupena v Senara [2016] WSSC 140,
[107]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 11, p 367, [75], a copy of the decision is annexed at KR-2, p 80-99.
Some of the Association’s members supported Reverend Reupena’s challenge to the Mother Church’s decision whilst others did not agree with him suing the Mother Church.
Mr Faamate (the first applicant) was part of the group that did not agree with Reverend Reupena’s action against the Mother Church. The Reupena Group supported Reverend Reupena’s challenge with the Mother Church’s decision.
Subsequent to the Samoan Supreme Court decision, the Mother Church in Samoa also decided to remove Reverend Reupena as a Church Minister. The Ministerial Sub-Committee for Matters Concerning the Ministeries decided on 24 August 2016 to strip Reverend Reupena of his ministerial status and that he must leave the Association’s premises because he was no longer a recognised ordained Minister of the Mother Church.[108]
[108]Exhibit 5 (trial bundle), tab 25.
On 3 September 2016 a District Emergency meeting (“the Inala meeting”) was held at the premises of the Inala Congregation.[109] At the Inala meeting, the Mother Church’s decision to remove Reverend Reupena as an ordained Minister and strip him of his ministerial duties was read out by Reverend Lauie Lupematasila of the Inala Congregation.[110]
[109] Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 27-28, [36]-[40].
[110] Exhibit 7 (list of agreed facts), [9].
Prior to the Inala meeting, on 31 August 3016, the Association’s secretary, Mr Tisema, called a meeting to be held after bingo finished that night to discuss the Inala meeting.[111]
[111]Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 496, [12]-[15]; Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 26, [30].
After bingo finished on 31 August 2016 the members assembled for the meeting. The applicants submit that there were a larger than usual number of people attending this meeting and they were uncertain as to whether all of the people attending the meeting were in fact members of the Association.[112] There is evidence that for the first time an attendance roll was circulated.[113] Some present at the meeting refused to sign it.[114]
[112]See exhibit 29 (applicants’ closing submissions), p 7, [13]. Having regard to the submissions below regarding the requirements of membership and how a member may lose that status, it might be thought the uncertainty was warranted.
[113]Transcript of the hearing on 20 March 2019, p 78, line 9-10 (cross-examination of Seremao Teo); Transcript of the hearing on 26 March 2019, p 23, line 36-39 (cross-examination of Kerita Reupena).
[114] Transcript of the hearing on 18 March 2019, p 58, line 5 (cross-examination of Taua Faamate).
The issue to be discussed at this meeting was whether or not the Association’s members should attend the Inala meeting.[115] The majority of the Association’s members who were in attendance at this meeting voted against attending the Inala meeting.[116]
[115]See, e.g., Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 496, [17]; Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 26, [31]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 136, [13].
[116]See, e.g., Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 496, [18]; Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 26, [32]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 137, [17].
However, the first applicant, Mr Faamate, did attend the Inala meeting where the Mother Church’s decision, to remove Reverend Reupena as an ordained minister of the Mother Church and strip him of his ministerial duties, was read out.[117] Afterwards, Mr Faamate delivered a letter to Reverend Reupena which apparently informed him that two members of the Elders’ Committee would attend the Ipswich Congregation the following morning to read out the Mother Church’s decision.[118]
[117] Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 27-28, [36]-[37].
[118] Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 27-28, [38]-[39].

After the Sunday service on 4 September 2016

After the Sunday morning service, the letter from the Mother Church was read to the Ipswich Congregation.[119]
[119] Exhibit 7 (list of agreed facts), [10].
After the letter was read, either Mr Tisema,[120] or Reverend Reupena,[121] told those gathered that there would be a meeting at 4:00pm that day to discuss the letter.
[120] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 172, [63].
[121]Exhibit 7 (list of agreed facts), [10]; see, e.g., Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 27-28, [42]; Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 498, [27].

The 4pm meeting on 4 September 2016

At 4:00pm on 4 September 2016 people gathered in the hall. The hall was arranged with seating either side; the Reupena Group sat on one side and the Remainder Group sat opposite.[122]
[122]See, e.g., Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 29, [45]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 175, [72]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 138, [25].
The 4 September 2016 meeting is of critical importance.
The respondents’ case is that all of the applicants as part of the Remainder Group resigned from the Association at the meeting. The applicants deny that they resigned from the Association.
Mrs Tisema video-recorded the meeting at Reverend Reupena’s request.[123] The meeting was conducted in Samoan, however, a translation is in the Trial Bundle tendered.[124] The video recording usefully captures the mood of the meeting whilst the translation is relied upon as to what was said at the meeting.
[123]Transcript of the hearing on 22 March 2019, p 27, line 24 (cross-examination of Tipi Tisema); p 70, line 6 to 11 (cross-examination of Temukisa Tisema).
[124]Exhibit 5 (trial bundle), tafb 12, p 114 to 125.
Ultimately, the 4 September 2016 meeting ended with Reverend Reupena allowing the Remainder Group to use the Association’s facility at 1.00pm on Sundays for the remainder of September 2016.[125] Reverend Reupena stated that “we are giving them a chance to submit a letter of resignation”.[126]
[125] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 178 to 179, [87].
[126]Exhibit 5 (trial bundle), tab 12, p 121.
What was said, and who said what, at this meeting is important in determining whether there was a mass resignation by the Remainder Group at this meeting. If there was such a mass resignation then the applicants do not have standing to bring these proceedings.
At the end of the meeting there was hugging, kissing, and crying between the two groups and then the Remainder Group left the hall.

Events after the 4 September 2016 meeting

After the Remainder Group left, the Reupena Group had some discussions and it was agreed that the Association would amend the constitution to remove reference to the Mother Church.[127]
[127] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 179, [91].
However, it is noted that, clause 29 of the constitution remained intact which states that if the Association is wound up then any surplus assets will be transferred to the Samoan Church, or to donate to any parish or congregation of the Samoan Church in Australia. This amended constitution was registered with Office of Fair Trading on 23 September 2016.[128]
[128]Exhibit 7 (list of agreed facts), [14].
On the evening of 9 September 2016, Mr Tisema, the secretary of the Association, delivered a letter to Mr Muliaga (the fifth applicant) from the management committee. This letter outlined the management committee’s recollection of what transpired at the 4 September 2016 meeting.[129]
[129] Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 499, [34] to [35].
It is noted that the 9 September 2016 letter does not say that the Remainder Group had “resigned”. However, the penultimate paragraph does say that “you have to give us your resignation letter” before the promised 1:00pm access on Sundays would be granted.[130]
[130] Exhibit 5 (trial bundle), tab 30, p 274 to 275.
Members of the Remainder Group arrived just before 1:00pm on 11 September 2016 to use the Church. They were refused entry by both Mr Tisema and Reverend Reupena.[131]
[131]See, e.g., Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 30 to 31, [54] to [57]; Affidavit of Maiava Muliaga, exhibit 13 (applicants’ book of affidavits), tab 16, p 146, [6] to [8]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 180, [96]; Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 500, [39].
Reverend Reupena’s recollection of his conversation with Mr Muliaga (a representative of the Remainder Group) was that if he did not have the letter confirming the agreement made at the 4 September 2016 meeting where they were leaving the Association and had resigned as members, then he should go and see a lawyer.[132]
[132]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 180, [96].

[100]An “invitation to reconcile” was extended by the applicants, via their lawyers, on 31 October 2016, asking to resolve their dispute peacefully and by way of open discussions in line with the ethos and objects of the Association as set out in the constitution.[133] However, according to Mr Tisema, the secretary of the Association, he had no intention of doing that.[134]
[133]Exhibit 23 (letter from Corney & Lind Lawyers dated 31 October 2016).
[134]Transcript of the hearing on 22 March 2019, p 41, line 46.
[101]These proceedings were commenced on 9 December 2016.[135]
[135] Originating Application filed 9 December 2016.
[102]Members of the Remainder Group did not return to the Ipswich Church or participate in Association events. They set up their own church with ties to the Mother Church and the group:
a.are communicant members[136] of a congregation affiliated with the Mother Church;[137]
[136]Transcript of the hearing on 18 March 2019, p 78, line 17 to 21 (cross-examination of Taua Faamate); Transcript of the hearing on 19 March 2019, p 17, line 18 to 46 (cross-examination of Naumati Muliaga); Transcript of the hearing on 19 March 2019, p 26, line 1 to 13, 28 to 31 (cross-examination of Luatua Setefano) Transcript of the hearing on 19 March 2019, p 46, line 1 to 9, 20 to 22 (cross-examination of Ala Fanolua); Transcript of the hearing on 20 March 2019, p 13, line 19 to 26 (cross-examination of Maiava Muliaga); Transcript of the hearing on 20 March 2019, p 29, line 27 to 38 (cross-examination of Itagia Uaea).

[137]Transcript of the hearing on 19 March 2019, p 26, line 19 to 26 (cross-examination of Luatua Setefano); Transcript of the hearing on 20 March 2019, p 13, line 4 to p 14, line 4 (cross-examination of Maiava Muliaga). Mr Faamate said he attend[s] “our own church”: transcript of the hearing on 18 March 2019, p 75, line 42 (cross-examination of Taua Faamate).
b.use a hall at Booval, near Ipswich, which had previously been used by another congregation, although initially used Mr Muliaga’s home to hold services;[138]
[138]Transcript of the hearing on 20 March 2019, p 11, line 45 to p 12, line 8 (cross-examination of Maiava Muliaga).
c.have a new minister,[139] Reverend Tavita;[140]
[139]Transcript of the hearing on 18 March 2019, p 78, line 15 (cross-examination of Taua Faamate).
[140]Transcript of the hearing on 19 March 2019, p 46, line 1 to 9, 20 to 22 (cross-examination of Ala Fanolua).
d.holds their own fundraising events for the new church, because they “came with nothing” (to the new church);[141]
[141]Transcript of the hearing on 18 March 2019, p 78, line 3 to 8 (cross-examination of Taua Faamate).
e.make financial contributions to the new church[142] (and stopped making contributions to the Ipswich Church prior to 4 September 2016[143]);
[142]Transcript of the hearing on 18 March 2019, p 78, line 19 (cross-examination of Taua Faamate); Transcript of the hearing on 19 March 2019, p 26, line 19 to 26 (cross-examination of Luatua Setefano); Transcript of the hearing on 19 March 2019, p 46, line 1 to 9, 20 to 22 (cross-examination of Ala Fanolua).
[143]Transcript of the hearing on 18 March 2019, p 74, line 46; p 75, line 9 to 24 (cross-examination of Taua Faamate).
f.Mr Fanolua (the thirteenth applicant) described the Mother Church’s contributions to the Booval congregation as including the funding for this proceeding[144] (of $150,000); and
[144]Transcript of the hearing on 19 March 2019, p 46, line 36 to 37 (cross-examination of Ala Fanolua).
g.Mr Muliaga[145] and Mr Setefano (the fourteenth applicant)[146] also confirmed that their congregation receives financial contributions from the Mother Church, including the $150,000 in legal fees.
[145]Transcript of the hearing on 20 March 2019, p 14, line 6 to 38 (cross-examination of Maiava Muliaga).
[146]Transcript of the hearing on 19 March 2019, p 26, line 33 to 47, p 27, line 1 to 13 (cross-examination of Luatua Setefano).

[103]The Reupena Group appeared to have carried on as normal and have run the Association since September 2016. A further nineteen new members and sixteen new non-members joined the Association between 4 September 2016 and 6 February 2017.[147]
[147] Exhibit 7 (list of agreed facts), 12.
[104]According to Mrs Tepatasi Melila, who swore an affidavit in support of the respondents but who is not a party to the proceeding:[148]
[148]Affidavit of Tepatasi Melila, exhibit 14 (respondents’ book of affidavits), tab 3, p 90, [27] to [28].
“27. Since the Evening 4 September 2016 Meeting, CCCSA Ipswich has continued its church and community activities as usual, including:
(a) two church services every Sunday;
(b) Men’s and Women’s Fellowship meetings on Saturdays;
(c) Sunday School;
(d) choir;
(e) bingo nights;
(f) fundraising activities;
(g) cleaning the church, property and facilities; and
(h) preparing the Holy Communion.
28. The only real difference is we are no longer connected to CCC Samoa.”

[105]According to the respondents, the Association still provides a spiritual and community hub for many members of the Samoan community.[149] It is clear that for many, their lives and families’ lives are bound up in the Association. It has been a place for members of the Association and their families to worship, to learn, experience and practice the Samoan culture, speak in Samoan and provide guidance to others in need.[150]
[149]Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 139, [35]; Affidavit of Tepatasi Melila, exhibit 14 (respondents’ book of affidavits), tab 3, p 90, [27]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 181, [101]; Affidavit of Lolini Sakaio, exhibit 14 (respondents’ book of affidavits), tab 13, p 460, [40]; Affidavit of Michelle Seupule, exhibit 14 (respondents’ book of affidavits), tab 14, p 467, [25]; Affidavit of Temukisa Tisema, exhibit 14 (respondents’ book of affidavits), tab 17, p 488, [68]; Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 502, [52].
[150]Affidavit of Tepatasi Melila, exhibit 14 (respondents’ book of affidavits), tab 3, p 90, [29].
[106]What has occurred has caused great distress for many of its members.
[107]The Remainder Group are distressed about being removed from their Association by the force of Reverend Reupena.[151]
[151] See, e.g., Affidavit of Maiava Muliaga, exhibit 13 (applicants’ book of affidavits), tab 16, p 147, [12].
[108]The Reupena Group are distressed about the possibility of this Association being wound up and losing their place of worship and community.[152]
[152] See, e.g., Affidavit of Tipi Tisema, exhibit 14 (respondents’ book of affidavits), tab 18, p 503, [58] to [59].
The hearing
[109]The trial spanned nine days with eight days of evidence; the final morning was taken up with submissions.
[110]Many of the witnesses required a translator, which, on occasions, meant some witnesses’ evidence was laborious. Often, questions had to be repeated and on occasions issues arose when there was no Samoan word for an English word.
[111]I acknowledge the difficulties in giving evidence via a translator and do not readily conclude that a witness is unresponsive or evasive in these circumstances.
[112]The use of a translator made assessing a witness’ credit more difficult, however, not impossible.
[113]However, I make the general observation that both parties’ witnesses were, at times, unimpressive.
[114]I found some of the applicants’ and the respondents’ witnesses deliberately non-responsive and evasive; I make this observation giving full allowance to the inherent difficulties in giving evidence via a translator.
Issues to be determined
[115]The parties have agreed to the issues that need to be determined in this matter:[153]
[153]List of Agreed Issues as at 28 March 2019, some issues had fallen away which explains the numbering.
“The Applicants and their standing
1.
(a) Were the applicants members of the Association as at the date of the commencement of the proceeding (such that they have standing to commence the proceeding) or had they resigned their membership on 4 September 2016 (such that they have no standing to commence the proceeding)?
(b) Who were members of the Association at the commencement of the meeting at around 4pm on 4 September 2016?
(c) Who were members of the Association at the time of the vote to amend the Constitution on 4 September 2016?
The Association and its records
3. Has the Association maintained an accurate register of members as required by clause 9(i) of its Constitution and s 69A(1)(d) of the Act:
(a) from incorporation?
(b) from October 2013?
(c) until 5 September 2016?
Including whether the ‘church diaries’ constituted a register of members as required in the periods set out above?
6.
(a) Mr Reupena appointed the Association’s committee from October or November 2013 to 11 December 2016.
(b) Could Mr Reupena be authorised to appoint other members of the Association’s committee, at any time?
(c) Was Mr Reupena authorised to appoint other members of the Association’s committee:
(i) prior to 11 December 2016?
8. Did the applicants acquiesce to the irregularities alleged by them as to:
(a) the register of members?
(b) any appointments by Mr Reupena of committee members?
(d) the loan by the Association of $50,000 to Mr Reupena?
(e) the non-compliance with time limits for auditing of financial statements and their presentation to general meetings?
The Association’s Constitution
9. Did the resolutions said to have been passed at the meeting on 4 September 2016 validly amend the Association’s constitution notwithstanding the alleged non-compliance with:
(a) clause 24 of the Constitution;
(b) s 48(1) and 48(3) of the Act;
(c) s 3(1) and s 3(2) of the Act.
10. Should the Court exercise its discretion to declare the following acts valid pursuant to s 133 of the Associations Incorporation Act 1981, that is to say:
(a) the calling of the extraordinary general meeting at which the Association’s constitution was amended?
(b) the amendment to the Association’s constitution?”

[116]Two issues of standing have been raised:
a.whether the seventeenth, eighteenth, nineteenth and twentieth applicants were members of the Association at the relevant time; and
b.whether the applicants all resigned at the meeting on 4 September 2016.

[117]If the seventeenth, eighteenth, nineteenth and twentieth applicants were not members of the Association at the relevant time then they would have no standing to be applicants in these proceedings.
[118]If the applicants resigned at the 4 September 2016 meeting, then they would have no standing to bring these proceedings.
[119]The most efficient way to deal with these issues is in the following order:
a.membership and accuracy of register;
b.standing of the seventeenth, eighteenth, nineteenth and twentieth applicants; and
c.resignation, or not, of the applicants at the 4 September 2016 meeting.

[120]The remaining issues are then dealt with when considering whether the Association, in the exercise of discretion, should be wound up.
[121]Ultimately the issues agreed by the parties feed into the issues relevant to the exercise of discretion when considering whether the Association should, or should not, be wound up pursuant to section 90 of the Act.[154]
[154]Section 90(1) of the Associations Incorporation Act 1981 (Qld) provides “(1) An incorporated association may be wound-up by the Supreme Court under the following circumstances, that is to say— (a) if the incorporated association suspends its operations for the space of a whole year; (b) if the members of the incorporated association are reduced in number to not constitute a quorum at a general meeting; (c) if the incorporated association is unable to pay its debts; (d) if the incorporated association carries on any operation whereby any member thereof makes any financial gain contrary to the provisions of this Act; (e) if the Supreme Court is of the opinion that it is just and equitable that the incorporated association should be wound-up.”
[122]The issues relevant to the exercise of discretion for winding up the Association on the just and equitable ground have been summarised, and agreed to, by the parties:[155]
[155] List of Agreed Issues as at 28 March 2019, some issues had fallen away which explains the numbering.
“Is it just and equitable to wind up the Association?

Do the following matters (of which all save (h) and (l) are raised on the applicants’ case, and disputed) justify winding up on the just and equitable ground:
(a) its failure to maintain an accurate membership register, at least until 5 September 2016 (on the Applicants’ case);
(d) Mr Reupena’s unilateral appointment of the Association’s Committee since October 2013;
(e) the Reupena Group’s exclusion of the Remainder Group from the Association’s affairs;
(f) the Reupena Group’s exclusion of the Remainder Group from the Association’s premises;
(h) Mr Reupena’s receipt of a loan of $50,000 from the Association to pay for his legal fees in Samoa;
(i) the Reupena Group’s use of Association’s funds to defend this proceeding;
(j) the purported amendment to the Association’s Constitution;
(k) the Association’s failure, at least until 2017, to comply with its financial obligations as pleaded in paragraph 18 of the Statement of Claim (admitted at paragraph 17 of the Defence);
(l) the admission of 19 new members since 4 September 2016.
13. Do the following matters justify the Court refusing to wind up on the just and equitable grounds:
(a) Mr Reupena’s defrocking by the Denomination (subsequent reinstatement and then further defrocking);
(b) Mr Reupena’s repayment of the loan of $50,000 from the Association;
(c) the events of 4 September 2016 relevantly the alleged resignations of the applicants (see above);
(d) the alleged ‘deadlock issues’ being whether or not Mr Reupena ought to remain employed or the minister of the Association, and whether or not the Association ought to remain affiliated with the Denomination;
(e) the admission of new members since 4 September 2016 to the Association;
(f) whether the applicants, since 4 September 2016 have:
(i) made any efforts or attempts to attend church services, meetings, functions or other activities regularly held by the first respondent?
(ii) contributed financial or other material forms of support to the Association?
(iii) been excluded from the Association and its premises;
(g) the alleged acquiescence by the applicants to the alleged irregularities (see above);
(h) the alleged actions by the Association since a date to be determined but not before 4 September 2016 to:
(i) translate records to English;
(ii) have its accounts audited;
(iii) prepare a ‘stand alone’ complete register of members.
(i) the conduct of the Association since 4 September 2016 in continuing to:
(i) conduct weekly church services in Samoan;
(ii) conduct funerals in Samoan and following Samoan cultural traditions upon request;
(iii) conduct marriages in Samoan and following Samoan cultural traditions on request;
(iv) conduct Sunday school in Samoan;
(v) conduct its Women’s Ministry in Samoan;
(vi) conduct its Youth Ministry for young people from Samoan families;
(vii) hold ad hoc social events following Samoan cultural traditions;
(viii) host ad hoc lectures promoting Samoan cultural and family customs.”

Membership and termination of membership
[123]The process of membership for the Association is set out in the constitution:[156]
[156]Constitution, exhibit 5 (trial bundle), tab 10/11.
“MEMBERSHIP
4. (i) The Association consists of ordinary members
(ii) The number of members shall be unlimited.
5. Every applicant for membership of the Association shall be proposed by one member and seconded by another member. Application for membership shall be in writing or verbal.
6. There are no membership fees or subscriptions payable to become a member.
7. (i) In the same general meeting for all members which an application for membership is received, the members shall determine upon the admission/rejection of applicant.
(ii) Any applicant who receives a majority of the votes of members present at the meeting at which such application is being considered, shall be accepted to become a member.
(iii) A person whose application for membership has been rejected, shall be notified by secretary of reasons of rejection; has no right to appeal, but may apply at a later stage.”

[124]The issue of membership and termination of membership was one that loomed large in the evidence.

Becoming a member of the Association

[125]The constitution dictates a simple process for obtaining membership of the Association.
[126]An application for membership shall be in writing or verbal and every applicant for membership shall be proposed by one member and seconded by another member.[157]
[157]Constitution, exhibit 5 (trial bundle), tab 10/11, cl 5.
[127]In practice, the process of membership for the Association involves more intricacy than the process as set out in the constitution.
[128]The evidence of Reverend Reupena was to the effect that there were two categories of members of Ipswich Congregation:[158]
[158]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [24] to [25].
a.members; and
b.non-members.

[129]When Reverend Reupena referred to members he meant those people who were/are members under the original constitution or amended constitution and have a right to vote at the Association’s meetings.[159]
[159]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [24].
[130]Members were called “communicants”, i.e. someone who was permitted to receive Holy Communion and who had voting rights.[160]
[160]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [24].
[131]Non-members participate in the activities of the Association but do not have a right to vote at meetings; they are also not communicants.[161]
[161] Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [25].
[132]A person could become a communicant member either by being part of the congregation, being nominated (often by their parents), undergoing classes of instruction in matters of faith, and accepted by a meeting of members including by undergoing a religious ceremony or ritual,[162] or, if they were communicant members of another congregation that was part of the Mother Church, by “transferring” their membership to the Ipswich Church[163] (e.g. Mr Teo,[164] and Mr Faamate and his family).[165]
[162]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [27] to [28]; Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 12, p 448 to 449, [10]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 135 to 136, [7] to [10]; Transcript of the hearing on 21 March 2019, p 19, line 24 to p 20, line 5; p 21, line 37 to p 22, line 14 (cross-examination of Binary Reupena); Transcript of the hearing on 22 March 2019, p 15, line 11 to 35 (cross-examination of Tipi Tisema).
[163]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 12, p 448 to 449, [10]; Transcript of the hearing on 22 March 2019, p 15, line 11 to 35; p 68, line 44 to 47; p 69, line 1 to 6 and 20 to 21 (cross-examination of Tipi Tisema).
[164]Transcript of the hearing on 21 March 2019, p 23, line 26 to 31 (cross-examination of Binary Reupena).
[165]Transcript of the hearing on 22 March 2019, p 66, line 32 to 34 (cross-examination of Tipi Tisema).
[133]As a practical matter, the respondents submit,[166] a person would not be nominated or accepted if they did not themselves accept and profess the Christian faith and demonstrate a commitment to the Ipswich Church.[167]
[166] Exhibit 30 (respondents’ closing submissions), p 13, [58].
[167]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165 to 166, [28]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 135 to 136, [7] to [10].
[134]Although financial contributions to the Ipswich Church were normally given by those that could, it was not a compulsory requirement of membership.[168]
[168]Transcript of the hearing on 25 March 2019, p 28, line 35 to 36 (cross-examination of Binary Reupena); Transcript of the hearing on 18 March 2019, p 54, line 34 (cross-examination of Taua Faamate).
[135]There was evidence about members of the congregation who participated in church activities[169] but who are described as “non-members”; these members do not have voting rights.[170] Some witnesses described these members as “community members”,[171] or just members.[172]
[169]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165 to 166, [28].
[170]Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 10, p 165, [26]; Affidavit of Binary Reupena, exhibit 14 (respondents’ book of affidavits), tab 7, p 135, [7] to [10].

[511]The applicants acknowledges that the Association has continued to perform these services for its congregation, with the following caveats:[554]
[554] Exhibit 29 (applicants’ closing submissions), p 67 to 68, [154.(e)].
a.conduct weekly church services in Samoan. That is conceded. However, it fails to take into account the two and half years that the Remainder Group have had to make alternative arrangements for their own weekly church services when, prior to 4 September 2016, they had the unfettered use of purpose built premises they helped build.
b.conduct funerals in Samoan and following Samoan cultural traditions upon request. Four have been conducted in the last four years. Miss Seupule can only recall three.[555]
[555]Transcript of the hearing on 27 March 2019, p 8, line 25 (cross-examination of Michelle Seupule).
c.conduct marriages in Samoan and following Samoan cultural traditions on request. Only one has been conducted and there are now serious doubts about its legality.
d.conduct Sunday school in Samoan. Miss Seupule asserts that the Sunday School is no longer part of the Association and it is merely “affiliated with it”. [556]
[556] Transcript of the hearing on 27 March 2019, p 8, line 5 to 7 (cross-examination of Michelle Seupule).
e.conduct its Women’s Ministry in Samoan. This is conceded; but with the same caveat as set out in the response to (a) above.
f.conduct its Youth Ministry for young people from Samoan families. This is conceded; but with the same caveat as set out in the response to (a) above.
g.hold ad hoc social events following Samoan cultural traditions. Again, this is conceded with the same caveat referred to in (a).
h.host ad hoc lectures promoting Samoan cultural and family customs. “Some” have apparently been conducted and it was for members only, at the end of 2018.[557]
[557]Transcript of the hearing on 27 March 2019, p 7, line 44 to p 8, line 1 (cross-examination of Michelle Seupule).

[512]However, the applicants note that because of the respondents’ conduct for two and half years that the Remainder Group have had to make alternative arrangements for their own weekly church services when, prior to 4 September 2016, they had the unfettered use of purpose built premises they helped build.[558]
[558] Exhibit 29 (applicants’ closing submissions), p 67, [154.(e)(i)].

Alternate relief

[513]It is clear from the evidence that the Association provides a spiritual and community hub for its members.
[514]Winding up is a remedy of last resort and ought not be granted if some less drastic form of relief is available.[559]
[559]Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247 at 252 per McPherson J; Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105 at [119] per Hasluck J.
[515]The applicants submit that the Originating Application sought certain alternative relief for the appointment of a receiver to undertake investigations as to membership and the Association’s finances and to call meetings at which a committee can be appointed. The applicants no longer seek such a remedy and do not consider the appointment of a receiver to be an appropriate remedy.[560]
[560] Exhibit 29 (applicants’ closing submissions), p 68 to 68, [156].
[516]The respondents provided written submissions on the appointment of a receiver on day one of the trial.[561] The applicants no longer seek that relief.[562] The respondents withdrew that offer in the Association’s opening.[563]
[561]Exhibit 3 (written submissions on the issue of appointment of a receiver).
[562]Transcript of the hearing on 1 April 2019, p 58, line 1-10.
[563] Transcript of the hearing on 20 March 2019, p 50, line 32 to 36.
[517]The respondents’ primary position is that the application to wind up ought to be refused and no appointment of a receiver ought to be made for the reasons set out above.
[518]However, if it became necessary to do so in the context of an appointment of a receiver, the respondents would concede that all of the applicants[564] were members (plus those on their list for which Mr Faamate did not account and which appear on the respondents’ list), for the purpose of a receiver convening a general meeting to determine the Ipswich Church’s future.[565]
[564]Save for Junior Papua and Segia Papua, Aso Aukuso and Tiana Afaese (see Affidavit of Kerita Reupena, exhibit 14 (respondents’ book of affidavits), tab 11, p 358, [40].
[565]Exhibit 30 (respondents’ final submissions), p 29, [137].
[519]The applicants contend that the alternative relief would be inappropriate for the following reasons:[566]
[566] Exhibit 29 (applicants’ closing submissions), p 69, [156] to [160].
a.first, in the absence of any agreement, the determination of who are the members of the Association is a task that is borders on the impossible. That is particularly so given the Association’s historical departure from the constitution’s requirements. That critical issue is ripe for further (future) dispute;
b.secondly, the Receiver would need to be fluent in Samoan to be able to understand and interpret the Association’s records;
c.thirdly, while the Association is conceded to be solvent, it is clearly still in a precarious position in terms of being “cash poor”. The forensic task the Receiver would need to undertake, coupled with ongoing threat of the Reupenas’ self-managed superfund calling in or refusing any further extensions would be more likely than not to push the Association into insolvency; and
d.fourthly, it is clear during that the Association’s members have been entrenched in a bitter dispute for a number of years. The disputants have taken intractable positions which will be unlikely solved even with the oversight of an independent third party.

[520]The respondents submit that the appointment of a receiver is a matter that the Court can consider as an appropriate and less drastic remedy than liquidation if it considers it necessary to resolve issues concerning the membership of the Ipswich Church.[567] The respondents submit that it is not incumbent on them to plead or claim the existence of such a lesser remedy but, in the context of corporate winding up and the application of the proviso in section 464(4) of the Corporations Act 2001 (Cth), the courts have said that the respondent to a winding up application on just and equitable grounds bears the onus of establishing (in terms of that section) that the applicant is acting unreasonably in seeking winding up where there is a lesser remedy available. That position merely confirms the position that the courts will not compulsorily wind up a solvent organisation unless there are exceptional circumstances and where no lesser remedy will resolve matters.[568]
[567]       Exhibit 30 (respondents’ closing submissions), p 28, [135].
[568]       Exhibit 30 (respondents’ closing submissions), p 28, [135].
[521]The respondents submit that even where, there may be some difficulties with some of the historical records, a properly informed and assisted (probably by a translator) receiver is should be able to determine any disputed questions of membership.[569]
[569]       Exhibit 30 (respondents’ closing submissions), p 28, [136].
[522]In order to consider the appointment of a receiver I requested that the respondents provide draft orders for the appointment of a receiver, which detail the mechanics of such an appointment and identify an appropriate person who would accept such an appointment.
[523]Accordingly, for the purposes of providing the Court with an indication of the orders that could be made should the court determine that the appointment of a receiver is appropriate, the respondents provided the following draft orders:
“1. Anthony Norman Connelly and William James Harris of McGrath Nicol (the Receivers), upon filing an appropriate consent, be appointed as receiver and manager of the assets and undertaking of the first respondent (the Church) commencing on the date of this order and continuing until further order of the Court.
2. The Receiver:
(a) convene an extraordinary general meeting (the Meeting) of the members of Church to be held as soon as practicable, for the purposes of electing a management committee;
(b) issue a notice (the Notice) to all members of the Church at least 14 days before the date fixed for the Meeting, which specifies:
i. the place of the Meeting;
ii. the date of the Meeting;
iii. the time of the Meeting;
iv. the nature of the business to be transacted at the Meeting, namely the election of a management committee

(c) preside as chair at the Meeting and exercise all the rights as chair at the Meeting as provided for under the Church’s constitution; and
(d) without limiting the terms of order 2(c) above, determine who is eligible to vote as a member of the Church at the Meeting;
3. The Notice be given to:
(a) each of the applicants; and
(b) each person determined by the Receiver to be eligible to vote, as required by order 2(d) above;
4. The Receiver has all of the rights and powers:
(a) of the Church;
(b) of a member of the Church;
(c) of any and all members of the management committee of the Church;
(d) necessary to manage any and all of the assets and undertaking of the Church in such manner as the Receiver considers appropriate, consistent with the objectives of the Church; and
(e) as may be reasonably incidental to the pursuit of any of the matters identified in order 2 or the exercise of any of the powers otherwise conferred by these orders;
(f) to retain or engage such contractors as the receiver sees fit to pursue any of the matters identified in order 2;
5. Within seven days of the conclusion of the Meeting, the Receiver provide to the Court and to the legal representatives of the parties, a written report which:
(a) summarises the events at the Meeting;
(b) identifies those persons who were elected to the management committee of the Church at the Meeting;
(c) records any other resolution of the members of the Church at the Meeting.
6. The reasonable costs and expenses properly incurred by the Receiver in the performance of his or her duties and the exercise of his or her powers and any matters arising from, relating to, incidental to and in connection with the performance of his or her duties and the exercise of his or her powers under these orders be paid from the assets of the Church.
7. The Receiver shall be at liberty to seek directions from the Court in respect of any question, matter or issue touching or concerning his appointment, the discharge of his duties or the exercise of his powers, and the Receiver’s costs of and incidental to the seeking of such directions shall be allowed as costs of the receivership, unless the Court orders otherwise.
8. Subject to further or other order the Receiver is not required to file or otherwise provide security for the performance of his duties.
9. Liberty be reserved to all parties to apply to the Court to vary or discharge these orders or for directions generally.”

[524]The respondents reserved the right to seek amendments to these draft orders as the precise task for the receiver may depend upon my findings and reasons for judgment.
[525]The respondents provided affidavits from Mr Harris and Mr Connelly who both consent to be appointed by the Court as a receiver for the Association.

Conclusion

[526]Serious concerns have been raised about the management of the Association under the leadership of Reverend Reupena.
[527]Reverend Reupena has exerted his power and influence as the congregation’s Minister to chart the course of the Association. The Reupena Group’s loyalty to the Mother Church rather than Reverend Reupena was an unheralded challenge to his power and influence within the congregation.
[528]I have considered all of the applicants’ submissions as to the matters justifying the winding up of the Association on just and equitable grounds. I have considered each of the issues raised by applicants in isolation, and in combination, as to whether the conduct alleged justifies winding up of the Association.
[529]At various times I have stated an issue is of little weight when considering whether the Association should be wound up. However, to be clear, I have also considered the combined and cumulative effect of each individual issue in deciding this matter.
[530]In my view, in particular, the applicants have raised justifiable complaints about the management of the Association:[570]
[570] Exhibit 8 (List of Agreed Issues as at 14 March 2019).
a.the exclusion of the Remainder Group;
b.the purported amendment of the constitution;
c.the failure to maintain a register of members (at least up until September 2016); and
d.concerns over the accuracy of the list of members.

[531]In the circumstances of this case these are the matters that concern me the most as to whether the Association should be wound up on just and equitable grounds.
[532]However, it is an extreme step, to wind up a solvent company and where an alternative and lesser remedy is available, such as the appointment of a receiver, the Court should be slow to order a winding up.[571]
[571]Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227 at [46].
[533]The courts will not compulsory wind up a solvent organisation unless there are exceptional circumstances and where no lesser remedy will resolve matters.[572]
[572]See McPhersons Law of Company Liquidation, Thomson Reuters, online, [4.225]
[534]The applicants, up to the first day of trial, pleaded as an alternative remedy, the appointment of a receiver.[573]
[573]Application, exhibit 5 (trial bundle), tab 1, p 2-3, [5].
[535]On the eve of the trial the respondents made an open offer to avoid the need for a trial and to accept the appointment of a receiver.[574]
[574]Transcript of the hearing on 18 March 2019, p 6, line 25.
[536]The respondents on the first day of trial made submissions that I should consider the appointment of a receiver.[575]
[575]Exhibit 3 (written submissions on the issue of appointment of a receiver).
[537]The applicants refused to entertain this alternative:[576]
[576]Transcript of the hearing on 18 March 2019, p 7, line 14 to 20.
“MR BRENNAN: No, your Honour. The matter has been on foot for two and a half years. That alternative relief has been open for two and a half years. Even quite apart from that, my learned friend says that it's a remedy of last resort. It's an extreme remedy, but not one of last resort. That's what always resources says. But putting that aside for a moment, if there was going to be an association in this State that needed to be wounded up on the just and equitable grounds, this is it.”

[538]The applicants in their written submissions acknowledge that the winding up of an otherwise solvent body corporate is a “remedy of last resort”.[577]
[577]Exhibit 29 (applicants’ submissions), p 58, [140].
[539]The respondents during the trial withdrew this offer[578] and the applicants at the conclusion of the trial formally abandoned the alternative remedy.[579]
[578]       Transcript of the hearing on 20 March 2019, p 50, line 32 to 36.
[579]Transcript of the hearing on 1 April 2019, p 58, line 1-10.
[540]The Court has power to appoint a receiver either under its inherent jurisdiction to do so[580] or under section 12 of the Civil Proceedings Act 2011 (Qld).
[580]      Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 at [170] per Lindsay J.
[541]I have assessed the applicants’ position by reference to the consequences of the events and circumstances upon which the application is founded and what is necessary to address them. It is my view that there is an alternative remedy, other than a winding up, which could equally address those consequences.
[542]In my view, the most concerning aspect of the applicants’ grievances are the problems with the accuracy of the membership lists, their expulsion from the Association and how the Association was managed under the autocratic leadership of Reverend Reupena without reference to the Constitution.
[543]It is my view that, despite my concerns about the management of the Association, a lesser remedy[581] than winding up is available that will resolve matters.
[581]Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247; Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 25 ACSR 227.
[544]I accept the respondents’ alternate position that a receiver should be appointed for the purpose of convening a general meeting to determine the Association’s future.[582]
[582]       Exhibit 3 (written submissions on the issue of appointment of a receiver).
[545]I consider that the draft order as proposed by the respondents provides an alternate and lesser remedy to resolve matters. Further, any proposed amendment to the constitution should be dealt with under the supervision of the receiver and, if required, the receiver should establish a process for this to be done.
[546]In terms of who could attend this meeting and vote, the respondents would concede that all of the applicants, save for Junior Papua, Segia Papua, Aso Aukuso and Tiana Afaese are members (plus those on their list for which Mr Faamate did not account and which appear on the respondents list).[583] I have found in the course of this matter that Junior Papua and Segia Papua were members of the Association.
[583]       Exhibit 30 (respondents’ closing submissions), p 29, [137].
[547]Such an outcome of appointing an independent third party to govern the meeting will give the members of the Association an opportunity to exert their membership rights and determine the future of the Association, including whether the constitution should be amended.
[548]I have considered the applicants’ submission that such a relief would be inappropriate[584] for the following reasons:
[584] Exhibit 29 (applicants’ closing submissions, p 69, [157] – [160].
a.the difficulty in determining the Association’s members;
b.the difficulty in understanding and interpreting the Association’s records;
c.the Association is “cash poor”; and
d.the Reupena Group and the Remainder Group have been entrenched in a bitter dispute for a number of years and taken intractable positions.

[549]I do not consider these matters raised by the applicant as unsurmountable.
[550]I do not regard the Association’s records as an irretrievable mess and I consider that a receiver, assisted by an interpreter, could determine the membership of the Association so that a meeting could be called for the members to determine the Association’s future. This is particularly so given the respondents’ concession as to the membership of the Association.
[551]I note that since the applicants’ exclusion from the Association in 2016 that new members have been admitted. I have found that the admission of these members was not an act of oppression by the Reupena Group.
[552]The applicants did not have the opportunity to vote on whether these persons could be members of the Association. I have not been asked to determine whether these members should be able to continue to partake in the Association’s affairs and the exercise about to be embarked upon as supervised by a receiver.
[553]However, it is my preliminary view (without determining this matter) that these “new members” should be allowed to exert their membership rights. I note that pursuant to the constitution, a simple majority is required for a person to be accepted as a member of the Association. Even on the Remainder Group’s list of membership,[585] the Reupena Group held the majority of members in late 2016. Accordingly, on one view, it may be assumed that these new members would have achieved the simple majority required by the constitution to obtain membership even if the Remainder Group had not been excluded. This may be a pragmatic way to move forward.

[585]Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 5, p 25, [17], p 57, TMF-4; Affidavit of Taua Faamate, exhibit 13 (applicants’ book of affidavits), tab 6, p 91 to 94, [40], [42].
[554]Both parties have been intractable throughout these proceedings. I note that the applicants stated in a letter from their lawyers on 31 October 2016 that their “only desire is that the dispute between the Association’s members is resolved amicably by mediation”.[586]
[586] Exhibit 23 (letter from Corney & Lind Lawyers dated 31 October 2016).
[555]The applicants rejected out of hand the appointment of a receiver on the first day of trial to resolve this trial.[587]
[587] Transcript of the hearing on 18 March 2019, p 7, line 14 to 19.
[556]For there to be any reconciliation between the parties there needs to be a desire on both sides for this to occur. However, there may not ultimately be a reconciliation of the members but that does not mean that the Association needs to be wound up. It means that a once harmonious congregation is divided due to their loyalties.
[557]All members need to be treated in accordance with the terms of the constitution. This did not occur in September 2016. It will occur now.
[558]When any meeting is convened it should be acknowledged that the Association is a part of the Mother Church as the amendment to the constitution deleting such a connection was invalid.[588]
[588]Transcript of the hearing on 1 April 2019, p 52, line 1 to 6.
[559]The Reupena Group should now appreciate that their fellow members, the Remainder Group, have been excluded from their association and that all members belong to an association that is part of the Mother Church and will remain so until the constitution is validly amended. Whether this occurs is a matter for the membership of the Association.
[560]As noted previously, the receiver should supervise the process of any proposed amendment to the constitution.
[561]If the constitution is not so amended then this may affect whether Reverend Reupena should stay on as the Minister of this congregation. This will be a matter for the members of the Association and the Mother Church.
[562]I declare that:
a.The applicants are members of the first respondent, except for the nineteenth and twentieth applicants.
b.The purported amendment to the first respondent’s constitution which is alleged to have occurred on 4 September 2016 is invalid.
c.The first respondent’s constitution is the document exhibited as TMF-2 to Mr Taua Meauli Faamate’s affidavit filed herein.
d.Any appointment to the first respondent’s management committee, not in compliance with clauses 11 to 13 of the first respondent’s constitution, was invalid.

[563]I will order that the application for winding up be dismissed.
[564]I will order the appointment of a receiver to convene a general meeting of all members to determine the future of the Association.
[565]The receiver will determine who are the members of the Association taking into account the respondents’ concession that all of the applicants (except for Aukuso and Tiana Afaese) (plus those on their list for which Mr Faamate did not account and which appear on the respondents list) are members of the Association.[589] Any dispute as to membership will be resolved by reference to the requirements of the constitution and whether there is evidence to support such compliance. Any proposed amendment of the constitution will only be undertaken with the receiver’s supervision.
[589] Exhibit 30 (respondents’ closing submissions), p 29, [137].
[566]Within fourteen days, the parties will provide me with an order that gives effect to these reasons for judgment. I encourage the parties to discuss and provide an order that gives the most practical effect to these reasons in relation to the work of the receiver.
[567]Following this, I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on an order for costs but if this cannot occur then the parties should agree on a timetable for the exchange of written submissions. If it is appropriate, then I will deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.

CITATION:	Faamate & Ors v Congregational Christian Church in Samoa-Australia (Ipswich Congregation) ABN 90 103 392 182 & Ors [2019] QSC 194
PARTIES:	TAUA MEAULI FAAMATE (first applicant) and LAGILAGIA FAAMATE (second applicant) and VAEA LOLE NOUATA (third applicant) and SEGIA NOUATA (fourth applicant) and MAIAVA PERETISO MULIAGA (fifth applicant) and NAUMATI MULIAGA (sixth applicant) and TUITEA MAFUTAGA FOE (seventh applicant) and LEITU FOE (eighth applicant) and TAGO AVE IATIGA (ninth applicant) and SEUAANA TAOFIA MULIAGA (tenth applicant) and LINE MULIAGA (eleventh applicant) and FAALAA TUSI FANOLUA (twelfth applicant) and ALA FANOLUA (thirteenth applicant) and LUATUA ASOSILI SETEFANO (fourteenth applicant) and TALALELEI SETEFANO (fifteenth applicant) and FALEAUTO TALUVALE FA (sixteenth applicant) and JUNIOR PAPUA (seventeenth applicant) and SENIA PATO (eighteenth applicant) and ASO AUKUSO (nineteenth applicant) and TIANA AFAESE (twentieth applicant) and LEAVEA JONES (twenty-first applicant) v CONGREGATIONAL CHRISTIAN CHURCH IN SAMOA-AUSTRALIA (IPSWICH CONGREGATION) ABN 90 103 392 182 (first respondent) and KERITA REUPENA (second respondent) and TIPI TISEMA (third respondent) and LOLINI SAKAIO (fourth respondent)
FILE NO:	SC No 12831 of 2016
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	9 August 2019
DELIVERED AT:	Brisbane
HEARING DATE:	18 – 27 March 2019; supplementary submissions from the applicants received 3 April 2019, 2 August 2019; supplementary submissions from the respondents received 4 April 2019, 2 August 2019
JUDGE:	Wilson J
ORDERS:	I declare that: 1. The applicants are members of the first respondent, except for the nineteenth and twentieth applicants. 2. The purported amendment to the first respondent’s constitution which is alleged to have occurred on 4 September 2016 is invalid. 3. The first respondent’s constitution is the document exhibited as TMF-2 to Mr Taua Meauli Faamate’s affidavit filed herein. 4. Any appointment to the first respondent’s management committee, not in compliance with clauses 11 to 13 of the first respondent’s constitution, was invalid. I order that: 1. The application for winding up be dismissed. 2. The parties will provide a draft Order giving effect to the reasons for judgment within fourteen days. 3. The question of costs is adjourned to a date to be fixed.
CATCHWORDS:	CORPORATIONS – WINDING UP – OTHER GROUNDS FOR WINDING UP – JUST AND EQUITABLE – OTHER CASES – where the applicants seek winding up of a solvent ongoing charitable organisation – whether the Association should be wound up on the just and equitable ground Associations Incorporation Act 1991 (Qld) s 3, 48, 60, 61, 62, 69A, 71, 89, 90 Ananda Marga Pracaraka Samgha Ltd v Tomar (No 2) [2010] FCA 1342, cited ASIC v ABC Fund Managers [2001] VSC 383; (2000) 39 ACSR 443, cited Australian Public Service Association (Fourth Division Officers) v Lawrence (1982) IR 166, cited Chiropractic and Osteopathic College of SA Inc v Struthers (1981) 97 LSJS 49, cited Ebrahimi v Westbourne Galleries Ltd [1973] AC 360; [1972] 2 All ER 492; [1972] 2 WLR 1289, cited Finch v Oake [1896] 1 Ch 409, cited Gregor and Another v British-Israel-World Federation (NSW) [2002] NSWSC 12; (2002) 41 ACSR 641, considered Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc [2018] VSC 413, cited In re Bleriot Manufacturing Aircraft Company Ltd [1916] TLR 253, cited Asia Pacific Joint Mining Pty Ltd v Allways Resources Holdings Pty Ltd [2018] QCA 48; [2018] 3 Qd R 520; (2018) 125 ACSR 227, followed In re Sick and Funeral Society of St John’s Sunday School, Golcar [1973] Ch 51, cited Nilant v RL & KW Nominees Pty Ltd [2007] WASC 105, cited Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305, cited Pine Rivers, Caboolture and Redcliffe Group Training Scheme Inc [2013] QCA 358; [2015] 1 Qd R 542, cited Re Dalkeith Investments Pty Ltd (1984) 9 ACLR 247, applied Reupena v Senara [2016] WSSC 140, cited Salamon Nominees Pty Ltd v Moneywood Pty Ltd [1998] QCA 440, cited Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408, cited
COUNSEL:	V B Brennan for the applicants P K O’Higgins for the respondents
SOLICITORS:	Corney & Lind Lawyers for the applicants Neumann and Turnour for the respondents