Khmer Buddhist Temple Association Inc v Chhet
[2021] VSC 45
•11 February 2021
| 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 quoted the following passage from Dome Resources NL v Silver outlining the principles governing the interpretation of the rules of an incorporated association:
…it is appropriate to approach the task so as to give the document a “businesslike interpretation”, paying “attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure”...[2]
[1][2020] VSC 134, [15].
[2](2008) 72 NSWLR 693, [11] (Basten and Bell JJA).
Complaints against the Abbot
Mr Chhet is a Buddhist monk. In 2012, the committee of the Association appointed him Abbot of the shrine and chapel. The position of Abbot is an honorary position for which wages are not paid. The Abbot resides at the premises and is supported by the charity of the Cambodian Buddhist community.
In the Buddhist faith, monks are expected to display spiritual enlightenment and the highest standards of rectitude. They renounce worldly things, and in return receive substantial charity and privileges from the Buddhist community. Monks in the order to which the Abbot belongs are celibate and cannot own property.
From March 2020, complaints were received by the committee about the conduct of the Abbot. The principal allegations were that:
(a)the Abbot was having ongoing sexual relations with a female person;
(b)the Abbot had registered another association called the Cambodian-Australian Buddhist Temple Association Inc (ABN 25 940 163 249) with very similar objects to the Association and registered to the address of the person with whom the Abbot was in a relationship;
(c)the Abbot had sponsored Buddhist monks to come to Australia without the knowledge or authority of the committee;
(d)the Abbot was in possession of a substantial amount of cash without the authority of the committee; and
(e)the Abbot had purchased a property in Cranbourne North with a mortgage from the Westpac Bank.
The allegations were serious going as to the Abbot’s adherence to his monastic vows and duties, and his integrity. They were investigated by Mr Put on behalf of the committee.
Meetings in November 2020
On about 28 October 2020, Mr Put sent a letter to the Abbot and the President calling a meeting of the committee for 14 November 2020 at the premises. The purpose of the meeting was to resolve the complaints about the Abbot.
On 12 November 2020, the Abbot obtained an interim intervention order from the Magistrates’ Court at Heidelberg prohibiting Mr Put from approaching or communicating with him, or going within 200 metres of his residence. As the Abbot resides at the premises, the order precluded Mr Put from attending the premises.
On or about 13 November 2020, the President called an annual general meeting for 22 November 2020 at the premises. He did not seek or obtain the concurrence of the other members of the committee when he did so. The agenda stated that the meeting would hear reports from the President, Treasurer and Secretary, and that there would be an election for a new Committee for the period 2021 to 2023. Because of the intervention order, Mr Put was unable to attend the meeting.
At least 100 people did attend. Mr Mom said that he and Mr Zor attended to object to its purpose and validity of the meeting. Mr Mom recognised some members of the Association, but many attending were strangers. Mr Mom deposes that he recognised Mr Youhorn Chea, a former Dandenong councillor, and Mr Sonn Top Kim, the fourth defendant, who were not members of the Association. Mr Mom says that the President, Mr Chea and Mr Kim were handing out forms to non-members and asking them to register to vote.
Mr Mom deposes that there was a great deal of commotion. Some members of the Association were very angry, and began grabbing forms and papers that were being handed out to non-members. Police officers attended.
After the general meeting, a notice was erected on the fence of the premises showing Mr Samreth remaining as President, and the third to fifth defendants as the new Vice President, Secretary and Treasurer of the Association. This notice was later removed.
Serious questions to be tried
Rule 30 of the Model Rules provides for the calling of annual general meetings by incorporated associations, and is in the following form:
(1)The Committee must convene an annual general meeting of the Association to be held within 5 months after the end of each financial year.
(2)…
(3)The Committee may determine the date, time and place of the annual general meeting.
(4) The ordinary business of the annual general meeting is as follows—
(a)to confirm the minutes of the previous annual general meeting and of any special general meeting held since then;
(b) to receive and consider—
(i)the annual report of the Committee on the activities of the Association during the preceding financial year; and
(ii)the financial statements of the Association for the preceding financial year submitted by the Committee in accordance with Part 7 of the Act;
(c) to elect the members of the Committee;
(d)to confirm or vary the amounts (if any) of the annual subscription and joining fee.
(5)The annual general meeting may also conduct any other business of which notice has been given in accordance with these Rules.
The general meeting conducted on 22 November 2020 was convened by the President alone and not by the committee under rr 30(1) and (3).
Under r 38, only members of the Association can vote at an annual general meeting. Mr Mom deposes that non-members were asked to vote and voted.
I find that there are serious issues to be tried as to whether the purported annual general meeting on 22 November 2020:
(a)was validly convened;
(b)was properly conducted;
(c)validly conducted an election; and
(d)validly passed any resolutions.
Appointment of solicitors
On 27 November 2020, solicitors were appointed to act for the Association. The appointment was approved by Mr Mom, Mr Put and Mr Zor on 12 December 2020 but not by the President.
Serious question to be tried
Rule 58 of the Model Rules provides:
(1)The Committee must meet at least 4 times in each year at the dates, times and places determined by the Committee.
(2)The date, time and place of the first committee meeting must be determined by the members of the Committee as soon as practicable after the annual general meeting of the Association at which the members of the Committee were elected.
(3)Special committee meetings may be convened by the President or by any 4 members of the Committee.
The appointment of solicitors to act for the Association must be authorised by the committee. The President did not convene a meeting of the committee on 27 November 2020 or on 12 December 2020. There are only three other members of the committee.
I find that it is a serious issue to be tried as to whether the Association’s solicitors were validly retained. Although a majority and quorum of the committee supported their appointment, no committee meeting was convened by the President or four committee members.
Meeting on 12 December 2020
On 12 December 2020, the committee met and resolved to:
(a)temporarily suspend the Abbot; and
(b)establish a disciplinary subcommittee to hear allegations against the Abbot.
On 13 December 2020, the committee informed the Abbot that:
(a)he was to remove himself from the premises before 5.00pm on 18 December 2020; and
(b)a disciplinary subcommittee had been established to hear the allegations against him.
The committee meeting on 12 December 2020 was not convened by the President or by four members of the committee.
Serious question to be tried
I find that there is a serious question to be tried as to whether the committee meeting on 12 December 2020 was validly convened, and as to whether the resolutions passed at the meeting were validly passed.
Disciplinary subcommittee
The disciplinary subcommittee met on 3 January 2021. The Abbot did not attend.
On 3 January 2021, the disciplinary subcommittee resolved to strike off the Abbot’s name from the list of members of the Association.
Serious questions to be tried
Rules 19 to 22 of the Model Rules provide for the conduct of a disciplinary subcommittee.
The appointment of Abbot of the Association is an honorary appointment made by the committee. There is no requirement for the Abbot to be a member of the Association.
There are serious issues to be tried as to whether:
(a)the disciplinary subcommittee was properly convened by the committee;
(b)the Abbot was a member of the Association;
(c)the disciplinary subcommittee had jurisdiction; and
(d)the finding of the disciplinary subcommittee was valid and effective.
Other events
Change of responsible officers
On 30 November 2020 and 11 December 2020, Mr Put received emails from CAV, advising that CAV had been requested to reset the password of the Association’s online account. On about 22 December 2020, he was advised by the ACNC that a form had been submitted to change the responsible person of the Association.
Change of locks
On 14 December 2020, the premises were locked and the gate lock changed without the approval of the committee.
Added parties
In view of the doubt as to whether the proceeding had properly been issued on behalf of the Association, Mr Mom, Mr Put and Mr Zor have consented to be added as plaintiffs in the proceeding.
Present position
Serious difficulties have arisen in the affairs of the Association. The committee is in deadlock, with the Vice President, Secretary and Treasurer of the view that the Abbot should resign or be removed, while the President supports the Abbot. The President and the Abbot have sought to have a new committee elected and obtain registration changes.
The dispute is inevitably having an adverse effect on the members of the Association and the conduct of worship.
Interim injunctions
The object of interim injunctions is to prevent irreparable damage that would be likely to occur if an injunction were not granted.[3]
[3]Magdalen College, Oxford v Ward (1839) 47 ER 849; Kidd v Chibnall (1878) 4 VLR(L) 488.
In the present case, interim injunctions are necessary to preserve the status quo by preventing the committee from being forced out of office by improper means and to ensure that registration details with the ACNC and CAV are not illegitimately altered.
There is a need for good governance and stability to return to the affairs of the Association, and permit. It seems inevitable in view of what has occurred that the members of the Association who are of the view that the Abbot should leave will need a different place of worship and organisation from those who support the Abbot.
The Abbot has established a new association and may have identified alternative premises for those who support him.
I will order a mediation between the parties to seek to resolve the dispute.
Interlocutory injunctions
If the mediation is unsuccessful in resolving the affairs of the Association, the application for interlocutory injunctions will be listed for hearing. It is plain that there are serious issues to be tried. The balance of convenience will likely be determinative of the outcome.[4]
[4]Bradto Pty Ltd v State of Victoria (2006) 15 VR 65 (Maxwell P and Charles JA).
Conclusion
I will add Mr Mom, Mr Put and Mr Tor as plaintiffs.
Interim injunctions will be granted until further order restraining the third to fifth defendants from:
(a)acting as the committee of the Association; and
(b)permitting or causing any instrument or document to be lodged with the ACNC or CAV seeking changes in the registration or recording of office bearers of the Association.
I will make orders for the conduct of a mediation.
I will adjourn the application for the defendants to be excluded from the premises, and for the Abbot to be removed. These applications will come on for hearing if the mediation is unsuccessful. Steps should be taken to discharge the interim intervention order in the Magistrates’ Court at Heidelberg as its continued existence may inhibit the resolution of the dispute.
SCHEDULE OF PARTIES
| KHMER BUDDHIST TEMPLE ASSOCIATION INC (ABN 63 990 104 294) | First Plaintiff |
| VISAL MOM | Second Plaintiff |
| SEREI PUT | Third Plaintiff |
| MAXWELL ZOR | Fourth Plaintiff |
| - and - | |
| HOUT CHHET | First Defendant |
| SOTHY SAMRETH | Second Defendant |
| KEAT A TE | Third Defendant |
| SONN TOP KIM | Fourth Defendant |
| DARARATH UCH | Fifth Defendant |
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