Prakoonheang v Wat Buddhalavarn Inc

[2017] NSWSC 1776

Supreme Court

New South Wales

Medium Neutral Citation:	Prakoonheang v Wat Buddhalavarn Inc [2017] NSWSC 1776
Hearing dates:	7, 15 December 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Equity - Applications List
Before:	Parker J
Decision:	Receiver appointed
Catchwords:	Churches and Religious Associations – association conducting Buddhist Monastery with connections to Laotian community – dispute as to governance and membership of association – appointment of receiver with power to admit lay members
Cases Cited:	Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408
Category:	Procedural and other rulings
Parties:	Kevin Prakoonheang as Public Officer of the Wat Buddhalavarn Incorporated (Plaintiff)   Wat Buddhalavarn Incorporated (Fourth Defendant) Attorney General for the State of New South Wales (Fifth Defendant – but see paragraph 6) The Venerable Khamphaeng Saenpraseut (Sixth Defendant)
Representation:	Counsel: J Jobson (Plaintiff) JG Simpkins (Sixth Defendant)   Solicitors: Liberty Lawyers (Plaintiff) Thurlow Fisher Lawyers (Sixth Defendant)
File Number(s):	2013/204918
Publication restriction:	Nil

Judgment – EX TEMPORE

(revised and issued 18 december 2017)

1. These proceedings concern the governance of the fourth defendant, the Wat Buddhalavarn Incorporated, to which I will refer as “the Association”, which owns land at Wedderburn on which is located the Wat Buddhalavarn Forest Monastery and Meditation Centre. The Monastery operates in accordance with Buddhist rites and those who support it are principally members of the Laotian community in Australia.

2. The proceedings were commenced in 2013 as a result of disputes which had arisen between various factions of the clerical and lay communities who make use of the Monastery about the governance of the Association. In particular, the disputes have centred on the rules which apply to membership of the Association and to the election of the management committee which controls the activities of the Association as a corporate entity.

3. Further background about the disputes and the course of the proceedings is found in the judgment of Slattery J in Kevin as the Public Officer of the Wat Buddhalavarn Incorporated Prakoonheang v Thonsoun Phantha-oudomm, Abbot of the Wat Buddhalavarn Monastery [2016] NSWSC 305. In that judgment, his Honour made certain declarations concerning the invalidity of resolutions purportedly passed for the governance of the Association and also concerning the invalidity of appointments purportedly made to the management committee. Those declarations did not resolve all the disputes between the parties and his Honour made orders for a referee, who had previously been appointed pursuant to orders by Stevenson J, to prepare a report.

4. The referee, John Emmet McDermott, completed his report on 10 February 2017. On 8 March, the plaintiff filed a notice of motion seeking orders adopting the conclusions in the report and appointing "Receiver Managers" to the Association to:

1/ Facilitate a Constitution for the running of the Wat Buddhalavarn.

2/ Oversee a public meeting of interested parties to adopt the Constitution.

3/   Oversee the creation of a register of members.

4/   Oversee the election of a Management Committee from the register of members.

5. The matter came before me on 7 December. On that occasion, Mr Simpkins of counsel sought to present submissions on behalf of the Venerable Khamphaeng Saenpraseut who is now, after the death of his predecessors who were formerly parties to the proceedings, the Abbot of the Monastery. I made orders removing deceased parties as the first and second defendants and permitting the discontinuance of the proceedings so far as they concerned the third defendant.

6. The result was to leave the only remaining defendants as the fourth defendant, the Association itself, and the Attorney General as the fifth defendant (although it is not clear from the file whether an order formally joining the Attorney General has been made). On that occasion, counsel for the plaintiff proposed an order that the Abbot be joined as the sixth defendant.

7. Among other things, the referee's report had concluded that there were no validly appointed lay members of the Association and the only validly appointed members of the Association were clerical members representing the monks and the Abbot.

8. It was clear that the first step in achieving proper corporate governance was to establish a mechanism under which lay members could join the Association and then elect, in accordance with the Constitution, a management committee. Issues, or at least potential issues, however, remain as to the way in which the election should be conducted and who should be eligible.

9. It is clearly established that, in a case such as the present, the Court may exercise its power of appointing a receiver by way of interlocutory relief and confer appropriate powers on the receiver to ensure that the membership of an association such as this can be reconstituted. Relevant authorities are collected by Lindsay J in Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408. Accordingly, I adjourned the proceedings to see whether a form of consent order could be agreed to allow this to happen.

10. The matter has come before me today and orders have been presented which are broadly acceptable to the legal representatives of both the plaintiff and the Abbot as the proposed sixth defendant. Among other things, there is now agreement that the Abbot should be joined as the sixth defendant and the orders provide for this. The orders provide for a receiver to take control of the property of the Association, to cause a notice to be displayed inviting applications for membership, and then to determine those applications by 2 February 2018. Following that, the receiver will report to the Court (by 9 March 2018) identifying the persons who have been accepted as members of the Association. The next step will be the convening of a general meeting to allow the appointment of a management committee, but the orders do not provide for this at this stage since the disputes or potential disputes which may exist about eligibility and the like have not crystallised. It is contemplated that that will happen by way of pleadings in the meantime.

11. As I have said, the orders are broadly acceptable to the parties who are represented before me and, in my opinion, they are a proper exercise of the Court's interlocutory power to appoint a receiver in the interests of allowing the community ultimately to resume its proper place in the governance of the Monastery.

12. The receiver proposed by the sixth defendant is Mitchell Ball. Mr Ball is an experienced accountant and is also an official liquidator. The plaintiff's representatives have not formally consented to Mr Ball's appointment but the evidence before me demonstrates his suitability for the task. I wish to make it clear that as receiver Mr Ball's task will simply be to hold the ring between the different groups in the community. He will act ultimately under the control of the Court and his task will simply be to ensure that the members of the community get to play their proper role in the Association so that it may be run in accordance with its Constitution for the benefit of the members of the community. The fact that Mr Ball's name was proposed by the Abbot will not in any way affect the way in which he performs his role and, so far as I can see, there is no reason to think that he will do so otherwise than in a completely neutral way.

13. In the circumstances, it is appropriate to make orders in the form agreed between the representatives of the parties (subject to some further minor modifications which have emerged as a result of the discussions between the parties' legal representatives and the Bench today) appointing Mr Ball as the receiver.

14. I make the order and notations in paragraphs 1 to 19 of the form of orders which I initial and date with today's date. Those orders will bring the proceedings back before me on 19 March 2018 at 9.30am.

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Decision last updated: 18 December 2017