Belmore Hercules Soccer Club Incorporated t/as Belmore United Football Club v Canterbury and District Soccer Football Association Inc. [2014] NSWSC 397 (7 March 2014)

Supreme Court of New South Wales Decisions

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Belmore Hercules Soccer Club Incorporated t/as Belmore United Football Club v Canterbury and District Soccer Football Association Inc. [2014] NSWSC 397 (7 March 2014)

Last Updated: 8 April 2014

Supreme Court New South Wales

Case Title:	Belmore Hercules Soccer Club Incorporated t/as Belmore United Football Club v Canterbury and District Soccer Football Association Inc.
Medium Neutral Citation:	[2014] NSWSC 397
Hearing Date(s):	7 March 2014
Decision Date:	07 March 2014
Jurisdiction:	Equity Division
Before:	Darke J
Decision:	Second to ninth defendants restrained until further order from purporting to act on behalf of the plaintiff, and ordered to withdraw forthwith the application they submitted to the first defendant purportedly on behalf of the plaintiff.
Catchwords:	CORPORATIONS - associations - soccer club expelled from district association - two groups each claim to be valid committee of club - both groups lodge applications for readmission of club - urgent interlocutory relief sought as to which group may make readmission application REMEDIES - injunction - soccer club expelled from district association - two groups each claim to be valid committee of club - both groups lodge applications for readmission of club - urgent interlocutory relief sought as to which group may make readmission application - balance of convenience
Category:	Principal judgment
Parties:	Belmore Hercules Soccer Club Incorporated t/as Belmore United Football Club (plaintiff) Canterbury and District Soccer Football Association Inc. (first defendant) Chris Balaouras (second defendant/ first cross-claimant) Nicholas Kambounias (third defendant/ second cross-claimant) Angelo Efstanthiou (fourth defendant/ third cross-claimant) Jim Kargas (fifth defendant/ fourth cross-claimant) Terry Gavrilides (sixth defendant/ fifth cross-claimant) George Antonopoulos (seventh defendant/ seventh cross-claimant) John Aligiannis (eighth defendant/ sixth cross-claimant) Nick Gratsounas (ninth defendant/ eighth cross-claimant) George Lazarou (first cross-defendant) Helen Dellis (second cross-defendant) John Pladas (third cross-defendant) Con Tahatos (fourth cross-defendant) Anne Botros (fifth cross-defendant) Katya Shigelski (sixth cross-defendant) Anastasia Kalas (seventh cross-defendant) Taryn Walsh (eighth cross-defendant) John Papaspiros (ninth cross-defendant)
Representation
- Counsel:	Counsel: Mr I Coleman SC (plaintiff/ cross-defendants) Mr S Robertson (first defendant) Mr P Jammy (second to ninth defendants/ cross-claimants)
- Solicitors:	Solicitors: Brown & Partners Solicitors (plaintiff/ cross-defendants) Diamond Conway (second to ninth defendants/ cross-claimants)
File Number(s):	2014/46555
Publication Restriction:	Nil

JUDGMENT - EX TEMPORE (REVISED)

1. The plaintiff, as its name indicates, is a soccer Club. I will refer to it as "the Club". It was established in 1971. It has since that time fielded numerous senior and junior teams in competitions organised by the first defendant, the Canterbury and District Soccer Football Association Incorporated ("the Association"). The Club has been an affiliate member of the Association but its status as such is currently in dispute. For the past 21 years the Club has used Beaman Park in Earlwood as its home ground. It has done that pursuant to agreements with the Canterbury Council.

2. The 2014 season is due to kick off on 5 April 2014. The Association is in the process of sorting out the necessary arrangements for the conduct of its competitions. This process necessarily includes identifying which teams will be participating. It is also necessary for Clubs, in preparation for the season, to make arrangements to secure playing fields.

3. In recent times various issues have arisen within the Club and as between the Club and the Association which seriously jeopardises the ability of the Club to participate in the forthcoming season. It is probably not an overstatement to say that these issues pose a significant threat to the continued existence of the Club.

4. The matter which initially prompted the commencement of these proceedings by the Club was the decision made by the Association on 14 October 2013 to expel the Club as an affiliate member. That decision was further confirmed by the Association on 4 November 2014. The Club took steps to approach the Court in February 2014. On 13 February 2014 Ball J granted the Club a short ex parte injunction. On 17 February 2014 Robb J made various orders, by consent and without admissions and upon the giving by the parties of certain undertakings. These orders facilitated the making by the Club of an application for affiliation with the Association and for the Association to consider such an application at its next scheduled meeting of the board which was to take place on 24 February 2014.

5. It appears that the Club made an application for affiliation as envisaged by those orders and that such application was indeed considered at a meeting of the Association on 24 February 2014. However, the position was complicated by the fact that on that day the Association received a letter from Mr Chris Balouris purportedly as President of the Club stating that the application which had been submitted had not been submitted by "the official committee" of the Club but was rather "from a group purporting to act on behalf of the Club". The letter included a request for "the opportunity to be included in whatever process the Association will take to review the application submitted".

6. The committee of the Association, at its meeting on 24 February 2014, resolved to defer a decision on the Club's application for affiliation "pending inquiries being made with the two committees which assert that they are the committee of the Club". In effect, the decision on affiliation has been stood over pending a determination of this issue.

7. It appears that on the following day, 25 February 2014, Mr Balouris and Mr Nick Kambourias, purportedly on behalf of the Club, submitted to the Association another application for affiliation.

8. The matter came before me on 4 March 2014. On that occasion I gave leave to the Club to file an Amended Summons which added as the second to ninth defendants Messrs Balouris, Kambourias and others who together claim to constitute the official committee of the Club. The Amended Summons includes claims for interlocutory relief as set out in paragraphs 4A and 4B to the effect: (a) that the second to ninth defendants be restrained from making any application or representation to either the Association or Football New South Wales Ltd (which I understand is the governing body of the sport in New South Wales) purporting to be on behalf of the Club, including any application for membership or affiliation; and (b) that the second to ninth defendants withdraw any application made by them or any of them to the Association purporting to be on behalf of the Club forthwith. The Amended Summons also included final relief on the issue of who has the right to represent the Club. The matter was adjourned to yesterday with a continuance of the existing restraint and undertakings, and also on the basis of undertakings proffered by Mr Doumanis, solicitor, who was present in Court for the proposed second to ninth defendants. He gave undertakings on their behalf in the same form as the undertakings previously given by the Club.

9. Yesterday, Mr White of senior counsel appeared for the second to ninth defendants. He sought and obtained leave to file a cross claim-cross summons naming nine individuals who apparently claim, contrary to the contentions of the second to ninth defendants, that it is indeed they who constitute the true committee of the Club. Relief, both final and interlocutory, is sought on the issue of who has the right to represent the Club. The relief essentially mirrors that sought by the plaintiff in its Amended Summons.

10. Mr White also sought and obtained an adjournment of the proceedings, over objection from Mr Coleman, senior counsel for the Club. I stood the matter over to today, continued the existing restraint and undertakings, and made directions for service by the second to ninth defendants of documents and affidavits upon which they seek to rely in relation to the Club's claims for interlocutory relief orders 4A and 4B.

11. As should be plain from the foregoing summary, those claims and the claims for interlocutory relief made by the second to ninth defendants need to be dealt with urgently. In the absence of a resolution, albeit only on an interim basis, of the issue of who has the right to represent the Club, the Club's affiliation with the Association, the ability of the Club to be included in the Association's preparations for the 2014 season and, as the evidence further discloses, the ability of the Club to secure playing fields is effectively stymied.

12. This state of paralysis has no doubt already caused significant damage to the Club, particularly in its efforts to attract players. If the situation is allowed to continue any longer the chances of the Club being able to participate in the 2014 season would be seriously jeopardised. Presumably, all sides of the dispute would at least agree that further damage to the Club, for which no doubt great affection is held, is to be avoided.

13. Mr Coleman, who again appeared for the Club and also the nine individuals who are named as cross defendants to the cross claim-cross summons, accepted that whilst almost every aspect of the material placed before the Court by the second to ninth defendants is challenged, he could not submit that ultimately, following a contested hearing, it could not possibly be accepted. He further noted that any such hearing would likely take some days, would be extremely costly for the parties, and was of course not possible given the urgency of the current situation. Therefore, he submitted, the question of interlocutory relief essentially came down to the balance of convenience.

14. He submitted that such balance favoured his clients largely because it was the Club, or at least the nine individuals who are cross defendants and are effectively bringing these proceedings as the Club, who has had the predominance of contact with the Canterbury Council concerning the securing of the ground and have been the ones who have actually obtained registrations of players for the 2014 season. He also referred to the fact that this group was in possession of the Club's kit, which is really just another word for the Club's equipment. He submitted that if the interlocutory relief was granted, even if only for five days, it would enable the group to proceed with its application for affiliation and negotiate with the Council over the ground and leave the second to ninth defendants in a position where, if they were ultimately successful, they would take over a Club which would or may then have the benefit of affiliation and be playing in the district competitions on their usual home ground.

15. Mr Jammy, who appeared today for the second to ninth defendants, agreed that in the circumstances the resolution of the matter really came down to the balance of convenience. He submitted that the balance of convenience was clearly in his clients' favour. He pointed to a lengthy history of control or management of the Club under the presidency of Mr Balouris which occurred without friction with the Association. He contrasted that with the period from September 2013, when Mr Balouris was removed as President, which has been marked by the conflict and disaffiliation. He submitted that the Club's interests in seeking affiliation were best served by having Mr Balouris' group bringing forward the application. He further submitted that the possession of the kit was of little significance as this possession was the result of the removal of Mr Balouris which is of course alleged to have been wrongful. Finally, he submitted that Mr Balouris' group had itself had some contact with the Council in relation to the ground.

16. As one would expect in these circumstances the Association, for whom Mr Robertson of counsel appeared, adopted an essentially neutral stance whilst emphasising the urgent need for some resolution of the issue so the question of affiliation of the Club can be further considered having regard to the timetable of the Association for the making of its arrangements for the competition. Mr Robertson also noted that the Association gave no assurances about the outcome of any such consideration of an application for affiliation.

17. I have not found this issue easy to resolve. Ultimately, I have proceeded on the basis that both sides can claim to have seriously arguable cases that they are in fact the genuine and lawful representatives of the Club and that, accordingly, the matter does come down to balance of convenience. I think this is finely balanced. However I have come to the conclusion that the balance slightly favours the nine individuals who are cross defendants.

18. I accept that they have since about September 2013 been in effective or de facto control of the Club. Whether or not they bear some responsibility for the decision of the Association to disaffiliate the Club, the fact remains that they have continued to deal with the Association, the Council and prospective players as best they can in advance of the 2014 season.

19. There is little evidence that Mr Balouris' group has engaged in similar activity. That is not any criticism of Mr Balouris or his group. However, ultimately it was this incumbent group consisting of the nine individuals who are cross defendants, which took action to challenge the Club's expulsion and bring the matter to Court. This group secured interlocutory relief and pursued an application for reinstatement. That application would have been dealt with, one would suppose, on 24 February 2014 were it not for the intervention of Mr Balouris' group on that day and the foreshadowing of an application of their own (which, as I have noted, was in fact made the following day).

20. Mr Balouris' group may well have better prospects of finding favour with the Association, but there is no firm evidence of this. In any case, I think that I must proceed on the basis that the Association will assess whichever application is found to be the one to go forward as properly on its merits having regard no doubt to the lengthy history of the Club.

21. I therefore think that interlocutory relief along the lines of orders 4A and 4B as sought by the Club should issue. That will enable the Club to at least on the surface present a united front to the Association in its application for affiliation and to the Council in its attempts to secure the home ground. It should also assist the Club in the recruitment of players for this season.

22. This result does not, of course, prevent Mr Balouris and his group continuing their efforts, whether in Court or through other, less expensive, avenues, to regain control of the Club. That is a matter which they will need to consider.

23. I have heard submissions today on the question of costs. I think in the circumstances of the case the appropriate order at this stage is simply to reserve costs. I do not think that the making of any award of costs at this stage would be a useful event to occur having regard to the relationships between the parties, who I would urge to seek some common ground as best they can in the coming weeks.

24. I make orders in accordance with paragraphs 4A and 4B of the Amended Summons which was filed on 5 March 2014, such orders to operate until further order of the Court. I make orders 1, 2, 3 and 4 as contained in the document headed "Orders" which is initialled by me, dated today's date and placed with the papers. I reserve all questions of costs of the interlocutory application which was heard today. I direct that these orders be entered forthwith. I give the parties liberty to restore on three days notice.

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