Khmer Buddhist Temple Association Inc v Chhet (No 2) - [2021] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2021 00158

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
DATES OF HEARING:	3 February 2021, 30 April 2021, and 16 June 2021
DATE OF JUDGMENT:	14 July 2021
CASE MAY BE CITED AS:	Khmer Buddhist Temple Association Inc & Ors v Chhet & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 418

INCORPORATED ASSOCIATIONS – Incorporated association for religious purposes – Interlocutory injunctions – Serious issue to be tried – Balance of convenience – Least risk of injustice – Position of Abbot – Associations Incorporation Reform Act2012 (Vic) ss 1(b), 33(1), 34, 46, 67, 83(2), 84, 85 – Model Rules for Incorporated Associations rr 42, 45(2)–45(5).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A Naidu	Logans Barristers & Solicitors
For the Defendants	Mr J Sutton	SDR Law

HIS HONOUR:

Introduction

The first plaintiff, Khmer Buddhist Temple Association Inc (ABN 63 990 104 294) (‘Association’), is an incorporated association formed by Buddhist members of the Cambodian community in Melbourne.

The Association owns the premises at 99 Alexander Avenue Thomastown (‘premises’), where it conducts prayer meetings and community functions. The temple at the premises is known as the Eysanmeanchey Temple (‘temple’).

In 2020, the committee (‘Committee’) and office bearers of the Association were:

(a) Sothy Samreth, President and second defendant;

(b) Visal Mom, Vice President and second plaintiff;

(c) Serei Put, Secretary and third plaintiff; and

(d) Maxwell Zor, Treasurer and fourth plaintiff.

By originating motion and summons filed 27 January 2021 (‘summons’), the plaintiffs seek an injunction to restrain the first defendant, Mr Hout Chhet (‘Abbot’), from acting as the Abbot of the temple. They also seek to restrain the defendants from:

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

(b) entering or remaining on the premises;

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

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

Hearing on 3 February 2021

The summons came on for hearing on 3 February 2021. I held that there were serious issues to be tried, and restrained the third to fifth defendants until further order from acting as the committee of the Association or from permitting or causing any instrument or document to be lodged with the ACNC or Consumer Affairs seeking changes in the registration or recording of office bearers of the Association.[1] I referred the proceeding to judicial mediation, and adjourned the summons until after the mediation was conducted.
[1]Khmer Buddhist Temple Association Inc v Chhet [2021] VSC 45 (‘previous reasons’).

The mediation was unsuccessful. The summons has now been fully heard, and stands for determination.

Affidavits

The plaintiffs principally rely on the affidavits and exhibits of:

(a) Serei Put…

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 418
Decision Date: 14 July 2021

CaseChat Overview and Summary

Khmer Buddhist Temple Association Inc v Chhet (No 2) involved the Khmer Buddhist Temple Association Inc, an incorporated association under the Associations Incorporation Reform Act 2012 (Vic), and Chhet, a former member of the association. The dispute centred on Chhet's removal from the association and the internal governance of the temple. The case was heard in the Supreme Court of Victoria.

The court was required to decide whether Chhet was entitled to an interlocutory injunction preventing the association from expelling him and whether the association's internal rules and procedures were valid and enforceable. The legal issues included the interpretation of the Associations Incorporation Reform Act 2012 (Vic) and the Model Rules for Incorporated Associations, and whether the association had the right to expel Chhet according to its rules. The court also needed to consider the balance of convenience and the least risk of injustice in granting or refusing the injunction.

The court held that Chhet was not entitled to an interlocutory injunction as the association had a serious issue to be tried and the balance of convenience and least risk of injustice favoured the association. The court found that the association's internal rules and procedures were valid and enforceable, and that the association had the right to expel Chhet according to its rules. The court also held that the position of the Abbot did not confer any special rights or privileges on him, and that the association's decision to remove Chhet was not unreasonable or capricious. The court noted that the association had acted in accordance with its rules and procedures, and that there was no evidence of any procedural unfairness or injustice.

The court refused Chhet's application for an interlocutory injunction and ordered him to pay the association's costs of the proceedings. The court also noted that the association had the right to expel Chhet according to its rules and that the association's decision to remove Chhet was not unreasonable or capricious. The court held that the association had acted in accordance with its rules and procedures, and that there was no evidence of any procedural unfairness or injustice.

Orders