Nagra v Sri Guru Singh Sabha Auckland Incorporated (1229571)

[2020] NZHC 2223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1406

[2020] NZHC 2223

IN THE MATTER

of an application under the Judicial Review Procedure Act 2016

BETWEEN

DALJIT SINGH NAGRA and GURNEK SINGH NIJJAR

Applicant

AND

SRI GURU SINGH SABHA AUCKLAND INCORPORATED (1229571)

Respondent

Hearing:	28 August 2020
Appearances:	M I S Phillipps for the applicants P Amaranathan for the respondent
Date of judgment:	28 August 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Friday, 28 August 2020 at 2.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Vicki Ammundsen Trust Law, Auckland Rice Craig, Auckland

NAGRA v SRI GURU SINGH SABHA AUCKLAND INC (1229571) [2020] NZHC 2223 [28 August 2020]

The proceeding and application

[1]    Mr Daljit Singh Nagra and Mr Gurnek Singh Nijjar apply for judicial review of a decision of the Sri Guru Singh Sabha Auckland Inc (Sabha), an Incorporated Society and registered charity. The decision challenged is to sell the Sabha’s Gurdwara (Sikh Temple) in Papatoetoe. The grounds of review are that the sale decision was made with improper motive, was irrational and was not fair or reasonable.

[2]    The sale tender closes at 4 pm today.  The tender acceptance date is Friday   4 September 2020. When the proceedings were filed yesterday, the applicants also sought an interim injunction, without notice, preventing sale of the property by tender or any other means until further order of the Court, in order to preserve their position until the hearing. The papers were served on the respondents on a Pickwick basis and I convened an urgent teleconference this morning.

Submissions

[3]    The applicants seek interim interim relief until their application for interim relief can be heard, once the respondents have had to time to respond. The interim interim relief sought is an order that, prior to 4 pm today, the closing date of the tender be extended by a maximum of 20 working days and that the vendor be restrained from entering any sale and purchase agreement  or  accepting  any tender  in  that  time. Mr Phillipps, for the applicants, submits the orders would preserve the position of the parties, if there are tenderers.

[4]    Mr Phillipps submits the primary ground of the judicial review is unreasonableness. The Gurdwara is of public benefit to the congregation and wider community and is the epicentre of the Sabha. Mr Nagra has sworn affidavits that sale “runs contrary to all Sikh traditions and conventions”.1 The alleged unreasonableness is leaving the Sabha without a facility, given its objects as an incorporated society and as a registered charity, and the fact the wider community can contribute to the Sabha’s liabilities, which might arise from an Employment Court judgment against the Sabha.

1 Affidavit of Daljit Singh Nagra at [34].

[5]    Ms Amaranathan, for the respondents, submits there is a preliminary issue of the applicants’ standing, as former members of the Sabha. She also submits there is no evidence establishing a serious question to be tried. Her instructions are:

(a)The Sabha’s rules allow it to sell the property and the Sabha followed that process. A special general meeting of 40 of the 50 members of the Sabha unanimously agreed to sell the property.

(b)The Sabha is currently funding high mortgage repayments on the property  and,  as  former  factory  premises,  it  needs  renovation. The Employment Court judgment has been satisfied.

(c)When the tenders are considered, the Sabha will consider not only purchase prices but also whether any tenders provide accommodation for the congregation through, for example, a leaseback.

[6]    Ms Amaranathan submits the Sabha is concerned the interim relief sought might cause them to lose potential purchasers. A meeting of the Sabha last night instructed her to offer an undertaking that the Sabha would not accept any tender offer nor enter into any sale and purchase agreement before 12 noon on Friday 11 September 2020. They expect a potential purchase would not be deterred by an extension of only one week, which could allow a hearing to occur. She submits the Sabha could also decide, if it is able to do so in the time available and considers it in its interests, to extend the closing date in the way proposed by the applicants.

Interim interim orders

[7]    Under s 15 of the Judicial Review Procedure Act 2016, the court may make interim orders “if, in its opinion, it is necessary to do so to preserve the position of the applicant”. The Court has a wide discretion to consider all the circumstances of the case in deciding whether to grant interim relief.2 Making interim orders involves considering the seriousness of the question to be argued and the strength of the applicant’s case, the balance of convenience between the parties and the overall justice

2      Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.

of the case. Here, the interim interim orders would last until determination of the application for interim orders at a two-hour hearing on Thursday 10 September 2020.

[8]    No doubt the standing issue will be considered at the substantive hearing. But rules of standing in New Zealand are relatively relaxed in judicial review proceedings,3 and the applicants undoubtedly have an interest in the decision they seek to challenge. I am more troubled by the substantive merits of the applicants’ case. Unreasonableness is a difficult ground of judicial review to make out. The applicants do not appear to have any information about the reasons for the decision they are challenging. The instructions to Ms Amaranathan suggest there are reasons for the decision. On the basis of the information available to me, the applicants’ case does not appear strong.

[9]    Against that, if no orders are made and the applicants succeed, their challenge may be rendered nugatory. If orders are made, and the respondents succeed, the efficacy of the sale may or may not be impaired. The balance of convenience of interim interim orders favours the applicants.

[10]   The position can be reviewed with the benefit of more evidence at the hearing of the application for interim orders. In the meantime, given the merits favour the respondents but the balance of convenience favours the applicants, I accept the respondents’ proposal to preserve the position of the parties. I decline to make interim interim orders but rely on the undertaking given by the respondents that the Sabha will not accept any tender offer nor enter into any sale and purchase agreement before 12 noon on Friday 11 September 2020. That undertaking must be honoured as if it is an interim interim order of the Court.

[11]   I make the following timetabling directions to the hearing on the application for interim orders:

(a)By 4 pm Friday 4 September 2020, the respondents will file their notice of opposition and supporting affidavits.

3      Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094.

(b)By 3 pm Tuesday 8 September 2020, the applicants will file any affidavits strictly in reply and their written submissions.

(c)By 3 pm Wednesday 9 September 2020, the respondents will file their written submissions.

(d)At 10 am Thursday 10 September 2020, the application for interim orders will be heard for up to two hours.

(e)Within 10 working days of the judgment on interim orders being issued, the applicants and respondents will file a joint memorandum (or separate memoranda if necessary) about timetabling to a hearing of the substantive application for judicial review.

Palmer J