Chand v Chand - [2022] NZHC 303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-99

[2022] NZHC 303

IN THE MATTER of an interlocutory application for an injunction

BETWEEN

SATISH CHAND

Plaintiff/Applicant

AND

RAKESH CHAND

First Defendant/First Respondent

AND

SHREE SANATAN DHARAM PRATINIDHI SABHA MANUKAU BRANCH INCORPORATED

Second Defendant/Second Respondent

Hearing: 25 February 2022

Appearances:

RP Chaudhry for the Plaintiff/Applicant LT Meys for the Defendants/Respondents

Judgment:

28 February 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 February 2022 at 11.00am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Neilsons Lawyers, Auckland To: R Chaudhry, Auckland

CHAND v CHAND [2022] NZHC 303 [28 February 2022]

Introduction

[1] The applicant applies for an urgent interim injunction prohibiting a Special General Meeting (SGM) of the second respondent (the Society) from proceeding at 6.30pm today, 28 February 2022. This judgment is being delivered with urgency, having heard the (on notice) application last Friday afternoon, 25 February 2022.

[2] The applicant and first respondent are members of the Society, which is an incorporated society.1 The applicant says that the objects of the Society are “to promote the interests of the Fiji Indian community through the Hindu religion as guides its role”. The first respondent is the acting President of the Society, though whether he has been validly appointed as such is in dispute.

[3] It is not in dispute that the operation and management of the Society has been dysfunctional since around 2017, as a result of court proceedings in this Court, which were concluded in 2019, and then over a similar period of time, a Department of Internal Affairs investigation into the misuse of grant funds provided to the Society. That investigation ultimately led to the prosecution and, in 2018, conviction of five individuals connected with the Society, including the first respondent (then Vice President of the Society) and Pradeep Chand (the then President).

[4] As a result of this dysfunction, the Society has not held an Annual General Meeting (AGM) since 2017. The Society’s Constitution provides that the Society is to be run by an Executive Committee, the members of which are to be elected at an AGM. The Constitution provides that if an AGM is not held in accordance with its provisions, the Executive Committee officials will be deemed to have vacated their positions. The applicant accordingly says that given an AGM has not been held since 2017, those purporting to make up the current Executive Committee are not in fact lawful holders of the offices concerned, and thus cannot have lawfully called the SGM scheduled for this evening. The applicant says that he and other members of the Society who support his position2 say the meeting ought not to proceed, given it will

1 The applicant says that he has been a member since 2010, whereas the first respondent’s affidavit says he became a member in late 2020 or early 2021. The Society’s Register of Members, which…

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 Chand v Chand

Details

AGLC: Chand v Chand [2022] NZHC 303
Case: [2022] NZHC 303
Decision Date: 28 February 2022

CaseChat Overview and Summary

Satish Chand applied for an injunction to prevent a Special General Meeting (SGM) of Shree Sanatan Dharam Pratinidhi Sabha Manukau Branch Incorporated (the Society) from proceeding, claiming that the current Executive Committee of the Society was not validly appointed, and thus had no power to call the SGM. The Society was incorporated in 2008, and the Constitution requires an Annual General Meeting (AGM) to be held each year. An Executive Committee is to be elected at the AGM, and the Executive Committee is to be responsible for the management of the Society. If an AGM is not held on time, the Constitution provides that the Executive Committee is to be deemed to have vacated their positions. The Society has not held an AGM since 2017, and the applicant claims that the current Executive Committee is therefore not validly appointed, and thus has no power to call the SGM. The first respondent denies that his appointment as acting President is invalid, and claims that the SGM is necessary to regularise the Society's affairs. The Court found that there was a serious question to be tried that the Executive Committee was not validly appointed, and thus had no power to call the SGM. However, the Court found that the balance of convenience and interests of justice weighed in favour of allowing the SGM to proceed. The Court found that a significant number of members of the Society had called the SGM, and that there was no suggestion that any decision to sell the Society's properties would be made at the SGM. The Court found that the applicant's concerns could be addressed at a later date, either by way of an action in judicial review or contract. The application for interim relief was declined, and the SGM was allowed to proceed. The Court encouraged the parties to agree on costs, and if they were unable to do so, directed the parties to file memoranda on costs within 10 and 15 working days respectively.

Orders