Rana v Survery - [2012] NSWCA 394

Court of Appeal

New South Wales

Case Title: Rana v Survery

Medium Neutral Citation: [2012] NSWCA 394

Hearing Date(s): 26 November 2012

Decision Date: 03 December 2012

Before: Beazley JA

Decision:
1. The appellants are to file and serve a summons for leave to appeal within 7 days of today's date;

2. Direct that the summons for leave to appeal and the appeal be heard concurrently;

3. Expedite the hearing of the summons for leave to appeal and the appeal;

4. Dispense with the requirement to file a White Book;

5. Direct the appellants to file and serve a written submission comprising no more than 2 pages as to why leave should be granted by 10 December 2012;

6. Direct that the matter be listed before the Registrar on Monday 10 December 2012 for further directions;

7. The appellants' notice of motion filed 5 November 2012 is otherwise dismissed;

8. The appellants' alternative claim for injunctive relief is dismissed;

9. The appellants are to pay the respondents' costs of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: STAYS - Application for stay of parties' agreement pending judgment - Stay not available.

INJUNCTIONS - Associations and clubs - Annual general meetings - Application for injunction to restrain holding of annual general meeting pending hearing of appeal - Parties entered into agreement as to holding of meeting - Court reluctant to restrain meeting - Balance of convenience not in favour of grant of injunction.

Legislation Cited: Corporations Act 2001 (Cth)

Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57
Contouris v Kallos [2008] NSWSC 840; 67 ACSR 543
His Eminence Petar The Diocesan Bishop Of The Macedonian Orthodox Diocese Of Australia And New Zealand v Lambe Mitreski [2012] NSWSC 1207
Luen Fook Tong Incorporated & Ors v Daphne Lowe & Ors [2011] NSWSC 1004

Category: Interlocutory applications

Parties: Wajahat Ali Khan Rana (First Appellant)
Mohammad Abdul Sami (Second Appellant)
Rab Nawaz (Third Appellant)
Hafizur Rahman Khan Survery (First Respondent)
Masud Cheema (Second Respondent)
Islamic Association Western Suburbs Sydney Inc (Third Respondent)
The Australian Islamic College of Sydney Limited (Fourth Respondent)

Representation

- Counsel: Counsel:
J Needham SC; A M Pickles (Appellants)
A P Cheshire (Respondents)

- Solicitors: Solicitors:
Denison Toyer (Appellants)
NA Lawyers (Respondents)

File Number(s): CA 2012/306283

Decision Under Appeal

- Court / Tribunal: Supreme Court

- Before: Pembroke J

- Date of Decision: 10 August 2012

- Citation: Rana v Survery (No 2) [2012] NSWSC 905

- Court File Number(s): 2011/400057

JUDGMENT

HER HONOUR: The appellants brought proceedings…

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.

Continue reading Rana v Survery

Details

AGLC: Rana v Survery [2012] NSWCA 394
Case: [2012] NSWCA 394
Decision Date: 03 December 2012

CaseChat Overview and Summary

In *Rana v Survery*, the appellants sought a stay of an agreement between the parties concerning the holding of an annual general meeting, and alternatively, an injunction to restrain the holding of that meeting pending the hearing of an appeal. The matter came before Beazley JA.

The primary legal issues were whether a stay of the parties' agreement was available in these circumstances, and whether an injunction should be granted to restrain the annual general meeting. The court was required to consider the balance of convenience in relation to the injunctive relief sought.

Beazley JA found that a stay of the parties' agreement was not available. Regarding the application for an injunction, the court expressed reluctance to restrain the holding of the annual general meeting, particularly as the parties had entered into an agreement concerning its conduct. The balance of convenience was not found to be in favour of granting the injunction.

The appellants' notice of motion was dismissed, as was their alternative claim for injunctive relief. The appellants were ordered to pay the respondents' costs of the notice of motion. Directions were also given regarding the filing of a summons for leave to appeal, the concurrent hearing of the summons and appeal, and the expedition of these proceedings.

Orders

Orders of the court

1. The appellants are to file and serve a summons for leave to appeal within 7 days of today's date;

2. Direct that the summons for leave to appeal and the appeal be heard concurrently;

3. Expedite the hearing of the summons for leave to appeal and the appeal;

4. Dispense with the requirement to file a White Book;

5. Direct the appellants to file and serve a written submission comprising no more than 2 pages as to why leave should be granted by 10 December 2012;

6. Direct that the matter be listed before the Registrar on Monday 10 December 2012 for further directions;

7. The appellants' notice of motion filed 5 November 2012 is otherwise dismissed;

8. The appellants' alternative claim for injunctive relief is dismissed;

9. The appellants are to pay the respondents' costs of the notice of motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Case Title:	Rana v Survery
Medium Neutral Citation:	[2012] NSWCA 394
Hearing Date(s):	26 November 2012
Decision Date:	03 December 2012
Before:	Beazley JA
Decision:	1. The appellants are to file and serve a summons for leave to appeal within 7 days of today's date; 2. Direct that the summons for leave to appeal and the appeal be heard concurrently; 3. Expedite the hearing of the summons for leave to appeal and the appeal; 4. Dispense with the requirement to file a White Book; 5. Direct the appellants to file and serve a written submission comprising no more than 2 pages as to why leave should be granted by 10 December 2012; 6. Direct that the matter be listed before the Registrar on Monday 10 December 2012 for further directions; 7. The appellants' notice of motion filed 5 November 2012 is otherwise dismissed; 8. The appellants' alternative claim for injunctive relief is dismissed; 9. The appellants are to pay the respondents' costs of the notice of motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	STAYS - Application for stay of parties' agreement pending judgment - Stay not available. INJUNCTIONS - Associations and clubs - Annual general meetings - Application for injunction to restrain holding of annual general meeting pending hearing of appeal - Parties entered into agreement as to holding of meeting - Court reluctant to restrain meeting - Balance of convenience not in favour of grant of injunction.
Legislation Cited:	Corporations Act 2001 (Cth)
Cases Cited:	Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 Contouris v Kallos [2008] NSWSC 840; 67 ACSR 543 His Eminence Petar The Diocesan Bishop Of The Macedonian Orthodox Diocese Of Australia And New Zealand v Lambe Mitreski [2012] NSWSC 1207 Luen Fook Tong Incorporated & Ors v Daphne Lowe & Ors [2011] NSWSC 1004
Category:	Interlocutory applications
Parties:	Wajahat Ali Khan Rana (First Appellant) Mohammad Abdul Sami (Second Appellant) Rab Nawaz (Third Appellant) Hafizur Rahman Khan Survery (First Respondent) Masud Cheema (Second Respondent) Islamic Association Western Suburbs Sydney Inc (Third Respondent) The Australian Islamic College of Sydney Limited (Fourth Respondent)
Representation
- Counsel:	Counsel: J Needham SC; A M Pickles (Appellants) A P Cheshire (Respondents)
- Solicitors:	Solicitors: Denison Toyer (Appellants) NA Lawyers (Respondents)
File Number(s):	CA 2012/306283
Decision Under Appeal
- Court / Tribunal:	Supreme Court
- Before:	Pembroke J
- Date of Decision:	10 August 2012
- Citation:	Rana v Survery (No 2) [2012] NSWSC 905
- Court File Number(s):	2011/400057