Link: Case Summary Document
Citation:  NSWSC 1377 Supreme Court of New South Wales, Black J
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
This was an application to have pleadings struck out and a case dismissed. The plaintiffs and were the ex-Rabbi and a member of the Strathfield and District Hebrew Congregation Ltd (the Congregation) and the defendants were the board members and the Congregation itself. The parties were engaged in an internal dispute about the positions they occupied.
In late 2010, the persons claiming to be the Board of Directors of the Congregation (first defendant) advised Rabbi Tov-Lev of the termination of his role as Rabbi of a Synagogue at Strathfield conducted by the Congregation and, in October 2011, Rabbi Tov-Lev was served with a notice of termination of tenancy in respect of the occupancy of a house associated with the Synagogue.
This led to proceedings being commenced by Rabbi Tov-lev and several members of the Congregation in June 2011. After some preliminary pleadings an amended Statement of Claim was filed in October 2011. The central claim was that a purported election on 1 May 2011 was contrary to the articles of association of the Congregation and there were various other deficiencies with an annual general meeting on that date. The plaintiffs sought a wide range of relief in the proceedings, including that the Congregation and its accountant produce financial accounts and records for forensic examination; a mandatory order that the Synagogue at Strathfield be preserved against sale and/or destruction and remain open for religious services; an order that Rabbi Tov-Lev have the rights to carry out his duties under the jurisdiction of Jewish religious law; and relief for oppression.
On 4 November 2011, Hallen AsJ ordered that the amended Statement of Claim be struck out (being bad in form) and directed that no further Statement of Claim be filed without the consent of each defendant or the leave of the Court, and that any application for leave be filed on or before 1 December 2011. His Honour also ordered the plaintiffs to pay the defendants’ costs of the motion. On 1 December 2011, the plaintiffs filed a Notice of Motion seeking to set aside the orders of Hallen AsJ. On 9 December 2011, Bergin CJ in Equity directed that that Notice of Motion not proceed until the plaintiffs had obtained the services of a lawyer for the purpose of assisting them in the future conduct of the proceedings.
On 15 February 2012, Nicholas J dismissed the Notice of Motion seeking to set aside the order of Hallen AsJ striking out the amended Statement of Claim. On 16 February 2012, Nicholas J dismissed a motion filed by Rabbi Tov-Lev seeking referral of the proceedings to the Director of Public Prosecutions and ordered the payment of the costs of the motion on an ordinary basis. That costs order was not met by the plaintiffs.
Nicholas J had also made orders that the proceedings be dismissed because of (inter alia) the failure by the nine persons constituting the first plaintiff to obtain and continue to retain legal representation. Therefore, at that point, the action had been dismissed.
Proceedings were then brought by the Congregation in the Consumer, Trader & Tenancy Tribunal of New South Wales (CTTT) seeking to terminate a tenancy under which Rabbi Tov-Lev occupied the house associated with the Synagogue. Rabbi Tov-Lev appears to have contested the validity of various decisions made or allegedly made by the Congregation in the proceedings before the CTTT. On 3 September 2012, the CTTT issued its decision terminating Rabbi Tov-Lev’s tenancy. On 12 September 2012, Rabbi Tov-Lev applied for a rehearing under section 68 of the Consumer, Trader & Tenancy Tribunal Act 2001 (NSW). On 13 September 2012, the Chairperson of the CTTT stayed the order for possession of the premises, but on 28 September 2012, lifted that stay, and dismissed the application for a rehearing.
In this hearing, the remaining plaintiffs were Mr De Varda and Rabbi Tov-Lev. They were not represented by solicitors. The plaintiffs sought to amend pleadings and to bring documents into evidence. His Honour said (at ):
The issue before me is not, ultimately, the merits of the claims made by the Plaintiffs in the proceedings, or whether the Plaintiffs or some of them should be entitled to pursue those claims, but whether they should be entitled to reopen these proceedings, and file amended pleadings in them, so as to pursue those claims in these proceedings without meeting the costs orders already made against them in these proceedings.
After detailed consideration of the issues, His Honour held that any further amended pleadings should be struck out, and that the proceedings had been formally dismissed by Nicholas J, so the matter did not need to be dismissed again.
The costs relating to this application were awarded against the plaintiffs in De Varda and Tov-Lev v The Board of Directors of the Strathfield and District Hebrew Congregation Ltd (No. 2)  NSWSC 1442.
The case may be viewed at: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1377.html
The costs decision may be viewed at: http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1442.html
Implications of this case
This case again illustrates the costs implications of pursuing internal disputes of nonprofit entities. In this case, the court made it perfectly clear from very early in the proceedings that the defendants were in the right, and that the plaintiffs’ claims were both improper in themselves, and improperly presented to the court. This was particularly so in the light of the plaintiffs’ apparent inability to retain legal advisers, and their insistence on representing themselves, after each failure to keep their legal advisers on side.