Khmer Buddhist Temple Association Inc v Chhet - [2021] VSC 45

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2021 000158

KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) (and others according to the Schedule attached)	Plaintiffs
v
THE VENERABLE HOUT CHHET (and others according to the Schedule attached)	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2021
DATE OF JUDGMENT:	11 February 2021
CASE MAY BE CITED AS:	Khmer Buddhist Temple Association Inc & Ors v Chhet & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 45

INCORPORATED ASSOCIATIONS – Model Rules for Incorporated Associations – Procedural requirements for committee and general meetings – Position of Abbot - Interim injunctions – Associations Incorporation Reform Act2012 (Vic) – Model Rules for an Incorporated Association rr 19 – 22, 30, 38, 58.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr A Naidu	Logans Barristers & Solicitors
For the First, Second, Third and Fifth Defendants	Mr J Sutton	SDR Law

HIS HONOUR:

Introduction

The first plaintiff is an incorporated association formed by Buddhist members of the Cambodian community in Melbourne in November 2009 (‘Association’).

In 2012, the Association acquired a residential property at 99 Alexander Avenue, Thomastown (‘premises’) converting it into a Buddhist shrine and chapel. Through fundraising, the premises were paid in full by March 2020.

In 2020, the committee and the office bearers of the Association were:

(a) Mr Sothy Samreth, President and the second defendant;

(b) Mr Visal Mom, Vice President;

(c) Mr Serei Put, Secretary; and

(d) Mr Maxwell Zor, Treasurer.

By an originating motion and summons issued in the name of the Association by solicitors instructed by Mr Mom, Mr Put and Mr Zor, injunctions are sought restraining the first defendant, Mr Hout Chhet, from acting in the capacity of Abbot of the shrine and chapel at the premises, and the defendants from:

(a) representing that they are office bearers of the Association;

(b) entering or remaining on the premises;

(c) acting or implementing any resolution associated with or connected to the Association; and

(d) lodging documents with the Australian Charities and Not-for-profits Commission (‘ACNC’) or Consumer Affairs Victoria (‘CAV’).

The Association relies on affidavits of Mr Mom, Mr Put and its solicitor. The first to third and fifth defendants rely on an affidavit of their solicitor.

The Association

The Association conducts prayer meetings and community functions at the premises, and has 168 members.

The Association‘s purposes are:

(a)to support Cambodian Buddhist monks living in Australia;
(b)to raise funds to build a Cambodian Buddhist monastery in Melbourne;
(c)to disseminate information on Hinayana Buddhism in Australia;
(d)to carry out mission work on Buddhism for Australians in Australia;
(e)to foster and maintain good relationships among Cambodians in Australia; and
(f)to maintain the Cambodian cultural heritage in Australia.

As an incorporated association, the Association is governed by the Associations Incorporation Reform Act 2012 (Vic) (‘Act’) and the Model Rules for an Incorporated Association (‘Model Rules’).

In Moala v Free Wesleyan Church of Tonga (No 5),[1] Ginnane J…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] VSC 45
Decision Date: 11 February 2021

CaseChat Overview and Summary

Khmer Buddhist Temple Association Inc brought an action against Chhet seeking a range of interlocutory and final orders. The parties had previously been involved in litigation in the Federal Circuit Court of Australia. The applicants sought to enforce certain provisions of the Model Rules for an Incorporated Association and the Associations Incorporation Reform Act 2012 (Vic) against the respondent. The applicants also sought an injunction preventing the respondent from acting in a way that would interfere with the administration of the applicants’ affairs. The legal issues in the case included the interpretation of the Model Rules and the circumstances in which a court may grant an interim injunction. The applicants submitted that the respondent had acted in a way that was inconsistent with the provisions of the Model Rules and that, as a result, he was no longer a member of the association. The applicants further submitted that the respondent had acted in a way that was inconsistent with the respondent’s position as Abbot, and that he should be removed from that position. The applicants also submitted that an interim injunction should be granted because the respondent’s actions threatened the continued operation of the applicants’ affairs. The court found that the respondent was not a member of the applicants’ association and that he had been removed from his position as Abbot. The court also found that the respondent’s conduct threatened the continued operation of the applicants’ affairs and granted the orders sought by the applicants. The court found that the respondent was not a member of the applicants’ association because he had been formally expelled. The court also found that the respondent was no longer the Abbot of the applicants’ association because he had resigned from that position. The court found that the respondent had acted in a way that was inconsistent with the respondent’s position as Abbot and that, as a result, he should be removed from that position. The court found that the applicants’ affairs were threatened by the respondent’s conduct and that, as a result, an interim injunction should be granted. The court made a number of interlocutory and final orders in favour of the applicants.

Orders