Order of AHEPA NSW Incorporated

[2021] NSWSC 1181

Supreme Court

New South Wales

Medium Neutral Citation:	Order of AHEPA NSW Incorporated [2021] NSWSC 1181
Hearing dates:	15 September 2021
Date of orders:	15 September 2021
Decision date:	15 September 2021
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	Previous orders partly dissolved upon the undertaking of the Defendants.
Catchwords:	EQUITY — Equitable remedies — Interlocutory injunctions — Whether the balance of convenience favours maintenance of interim relief — Where restraining the defendants would also prevent their communication with a public authority in their capacity as members of the public.
Category:	Procedural rulings
Parties:	Order of AHEPA NSW Incorporated (Plaintiff) Con Gouros (First Defendant) Penny Cretan (Second Defendant) George Lianos (Third Defendant) Demetrios James Antonakos (Fourth Defendant) Anthony Alexandrou (Fifth Defendant) Maria Alexandrou (Sixth Defendant)
Representation:	Counsel: L McGovern (Plaintiff) D Meyerowitz-Katz (Defendants) Solicitors: Pure Legal (Plaintiff) Levitt Robinson (Defendants)
File Number(s):	2021/259327

Judgment – ex tempore (Revised 16 September 2021)

1. By Summons filed on 10 September 2021, the Plaintiff, the Order of AHEPA NSW Incorporated ("AHEPA NSW") commenced another chapter in the range of litigation in which it has been involved over several years, by seeking orders, on an interim and a final basis, in respect of the composition of officeholders and members of the committee of management of AHEPA NSW, and orders, on a final basis, that certain persons have passed themselves off as members of AHEPA NSW or have engaged in misleading or deceptive conduct in respect of certain matters. By way of interim relief, AHEPA NSW in turn sought orders that specified Defendants be restrained from taking further actions, including purporting to act as or represent themselves to be members of the committee of management of AHEPA NSW.

2. The application was commenced on an ex parte basis and heard by Kunc J in the Duty List on 10 September 2021, when his Honour made orders, in paragraphs 4(a)-(b); restraining the First and Second Defendants up to today, 15 September 2021, from representing themselves to be acting as duly elected office bearers of AHEPA NSW or members of its committee of management, or representing themselves to be, or acting as having the authority of AHEPA NSW or its committee of management. The First and Second Defendants, without admission, now consent to an order that would continue that position until the next date on which the matter would be listed for directions, now 30 September 2021.

3. Kunc J also made an order restraining the First and Second Defendants for a short time, up to today, from communicating directly or indirectly with Bayside Council ("Council") in respect of AHEPA NSW's execution and entry into an agreement for licence and lease relating to the redevelopment of the Bexley Bowling Club or an associated resolution of the Council and, possibly more widely, restraining the Defendants up to and including today, from communicating directly or indirectly with the Council in connection with the lease or the resolution. The Defendants do not consent to the continuance of those orders and seek to have them dissolved, upon an undertaking that they would not, in any communication with the Council, represent that they have authority to represent AHEPA NSW or that they are authorised to speak on behalf of its incumbent committee of management.

4. AHEPA NSW seeks to maintain that interim relief, or alternatively, although not as its preference, to have the Court accept the undertaking offered by the Defendants given, or as a third alternative, to have that undertaking reformulated to provide that the Defendants would represent in any communication with the Council that they did not have the authority to represent AHEPA NSW. That third alternative may immediately be excluded on two grounds. The first is that it is not an undertaking that the Defendants offer, and it cannot be forced upon them where it is not offered, to that either the injunctive relief that the Plaintiffs seek should be granted or not, or the different undertaking that the Defendants offer should be accepted. The second reason that alternative can be excluded is that it is by no means apparent that it fairly represents the Defendants’ position, so far as it appears that they at least contend that they may represent AHEPA NSW’s committee of management as determined under an earlier constitution, or on alternative views as to the many disputed events in AHEPA NSW’s history.

5. AHEPA NSW relies on a lengthy affidavit of its solicitor, Ms Perry, sworn 9 September 2021, which sets out the history of the dispute and its various iterations, in litigation before me, before Rees J, in a judgment of the Court of Appeal, a further judgment of the Court of Appeal that varied its earlier judgment, and now, it appears, an application for special leave to appeal to the High Court of Australia. The affidavit also refers to steps taken by the Defendants or some of them to incorporate other entities with somewhat similar names to AHEPA NSW and a constituent entity, namely AHEPA Australia Limited and AHEPA in NSW Grand Lodge Incorporated. Little turns on that matter for the interim relief that is in issue today.

6. Ms Perry in turn refers to AHEPA NSW’s dealings with the Council in respect of the proposed lease of a new clubhouse to be situated at the former Bexley Bowling Club and the investment by AHEPA NSW in consultancy fees and preparation works for the refurbishment of the Bexley Bowling Club, which is the subject of that lease, and to correspondence from the Defendants, and later their solicitor, to the Council. I will refer to that correspondence below. Ms Perry also notes that there is an issue presently before the Council as to whether a special resolution that authorised an entry into the arrangement passed by AHEPA NSW was valid, as to which Council appear to have formed a view that it was not, although AHEPA NSW contests that matter; AHEPA NSW now proposes to put a further special resolution to members, by postal vote, which it appears will be contested by the dissenting members; and the Council is considering whether it should rescind the lease and licence arrangement with AHEPA NSW, which may depend upon whether they were validly authorised by AHEPA NSW and the outcome of the further special resolution.

7. A bulky exhibit to Ms Perry’s affidavit includes, inter alia, minutes of a meeting of the committee of management of AHEPA NSW, apparently attended by at least some of the Defendants, on 27 January 2021, which authorised Mr Fandakis to carry out discussions or required negotiations with the Council. Ms McGovern, who appears for AHEPA NSW, contends that that amounted to an exclusion of any other persons carrying out discussions or required negotiations with the Council, presumably on behalf of AHEPA NSW. Even if that were so, it does not seem to me that it would support a proposition that other persons who are opposed to the proposal are debarred from communicating that opposition to the Council.

8. The exhibit in turn includes communications from Mr Gouros and Ms Cretan, who are the First and Second Defendants, to the Council, including a letter dated 15 March 2021 which refers to a number of entities, by names which are, to say the least, confusing, including AHEPA Australia, The Grand Lodge of NSW, The Grand Lodge in NSW and The District Lodge of NSW. It would, however, have been plain to Council, on receiving that letter, that whatever entity was writing it, it was not AHEPA NSW under the control of its present committee of management, so far as the letter vigorously opposed the proposal which AHEPA NSW under its present committee of management supports.

9. By a further letter dated 9 August 2021, a firm of solicitors, Levitt Robinson, indicated that they acted for Mr Gouros and Ms Cretan, who were in turn described, possibly confusingly, as the President of AHEPA Grand Lodge in NSW and the District Lodge President of AHEPA NSW. Whether or not the descriptions of the roles those persons held or contended they held were accurate, the Council could not have been under any misunderstanding that Levitt Robinson were acting for anyone other than Mr Gouros and Ms Cretan or that Ms Gouros and Ms Cretan were anything other than dissentients in respect of the proposal put by AHEPA NSW that was before Council for consideration. A further letter dated 11 August 2021 from Levitt Robinson to the Council made clear that Mr Gouros and Ms Cretan contended that there was no special resolution authorising the entry into the relevant arrangements, and again made clear their opposition to the proposal.

10. A letter dated 27 August 2021 from the Council, to which Ms McGovern draws attention, indicates that the Council did not misunderstand the fact that the correspondence it had received came from lawyers representing parties to the proceedings in the Court of Appeal, who asserted the invalidity of the special resolution that was required for AHEPA NSW validly to enter the lease and licence arrangements with Council. Ms McGovern refers to the fact that that letter indicated Council’s concern as to the validity of the resolution, a matter which has now been addressed by AHEPA NSW, without admission, by its proposal for a further special resolution. While AHEPA NSW may no doubt prefer that those matters not be raised again with the Council, it is plain enough that the Council was not under any misapprehension as to whether there was a challenge to the validity of the resolution, or that that challenge was coming from the dissentients rather than from AHEPA NSW and the proponents of the proposal.

11. A letter dated 31 August 2021 from the solicitors acting for AHEPA NSW to the Council in turn referred to the existence of what was described as a “small number of dissenting members” and, no doubt accurately, to the costly and time consuming litigation which had previously existed, and it appears will now continue into the future. By a further letter dated 2 September 2021, Council in turn responded to that position.

12. By a letter dated 7 September 2021 to the Council, the solicitors for Mr Gouros and Ms Cretan in turn claimed that they acted for “the committee of management of the Order of AHEPA NSW Inc being the alternative committee of management to the committee of management” with which the Council had previously been dealing. Again, there can be no doubt that the Council, as the recipient of that letter, would have understood that it was dealing with solicitors for the dissentients, and was now being made aware that the dissentients now claimed that they were the “true” committee of management, in opposition to the committee of management which is presently managing AHEPA, in both an echo of past disputes and a foreshadowing of future disputes. Those solicitors in turn foreshadowed court process and threatened to join the Council as a Defendant in the proceedings, once more making clear that they were acting for the opponents to the resolutions, not its supporters.

13. I have dealt with this correspondence at some length because, it seems to me, this review of the correspondence makes clear that, whether or not a serious question to be tried could be established that the Defendants made any representation that they were acting on behalf of AHEPA NSW, as distinct from other organisations, and whether or not that could amount to misleading or deceptive conduct or a form of passing off, the balance of convenience is not satisfied in respect of the wider relief that is now sought by AHEPA NSW. There is no real risk, in the present circumstances, that the Council would understand the persons communicating with it to be anything other than opponents of the arrangement it has reached with AHEPA NSW. The Council has not been misled in that respect and is not likely to be misled in the future. Mr Meyerowitz-Katz, who appears for the Defendants, in turn points out that, where the dissentients in fact oppose the course that AHEPA NSW and the Council are taking, they should not be restrained from communicating that position to Council, in their capacity as members of the public and opponents of the course which is being adopted. It seems to me that there is substantial force in that proposition and that the Council also has a real interest in being made aware of the continuing disputes within or associated with AHEPA NSW, at the time that it is considering its position in respect of the lease and licence, and that it would not be appropriate to grant injunctive relief in a way that would potentially prevent the opponents of the proposal making their continued opposition to that proposal known to the Council, so that it can take it into account.

14. For these reasons, I would not continue orders 4(c) or 5 made by Kunc J. It seems to me that the interest in preserving free expression of the Defendants’ views, in communications with the Council, and the lack of any real risk that Council will be confused as to who they are dealing with, is sufficient reason not to grant the wider interlocutory relief that is sought by AHEPA NSW. I cannot adopt the alternative form of undertaking which AHEPA NSW would prefer, which the Defendants did not offer, for the reasons noted above. I will, in those circumstances, dissolve orders 4(c) and 5, although they would in any event expire today, upon the undertaking of the Defendants recorded in paragraph 1(b) of the Defendants’ proposed short minute of order, and upon the usual undertaking as to damages given by the Plaintiffs.

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Decision last updated: 17 September 2021