Australian Islamic Society of Bosnia Herzegovina Incorporated v Muhamed Kumalic [2023] NSWSC 1505

Supreme Court New South Wales

Medium Neutral Citation: Australian Islamic Society of Bosnia Herzegovina Incorporated v Muhamed Kumalic [2023] NSWSC 1505 Hearing dates: 30 November 2023 Date of orders: 30 November 2023 Decision date: 30 November 2023 Jurisdiction: Equity Before: Kunc J Decision: Vesting order made in favour of successor incorporated association Catchwords: CHURCHES AND RELIGIOUS ASSOCIATIONS — Church property and trusts — Authority to deal with — Vesting of property from original trustees to incorporated association Legislation Cited: Associations Incorporation Act 1984 (NSW) Charitable Collections Act 1934 (NSW) Trustee Act 1925 (NSW) Cases Cited: Church of the Foursquare Gospel (Australia) Ltd, the v New Hope Church Swansea Inc. [2019] NSWSC 519 Category: Principal judgment Parties: Australian Islamic Society of Bosnia Herzegovina Incorporated (plaintiff) Muhamed Kumalic (first defendant) Abaz Talic (second defendant) Majro Muhov (third defendant) Representation: Counsel: S Philips (plaintiff)

Solicitors: Cordoba Legal (plaintiff) File Number(s): 2022/169283

EX TEMPORE JUDGMENT (REVISED)

Summary 1. These proceedings concern a common issue among faith based groups. While some denominations in New South Wales have the benefit of specific legislation creating statutory trustees to hold property, others at least began with what, in law, were trustees holding land and other property for the benefit of the congregation as an unincorporated body. Members of the congregation would donate funds to acquire the property for a place of worship, school, community centre, or such like, which would then be purchased by some of the congregants as trustees. 2. That is what occurred in this case. In the late 1970s and early 1980s a group of Bosnian Muslims came together as the Islamic Society Hurstville (ISH). Properties were purchased in the names of members of ISH. 3. For the reasons which follow, the Court is satisfied that ISH became the plaintiff Society by incorporation under the Associations Incorporation Act 1984 (NSW) (the Act). By amended statement of claim filed on 19 May 2023, the Society seeks relief to perfect its registration as the registered proprietor of a property at Smithfield (Smithfield Property) and two adjacent properties at Penshurst (Penshurst Properties) originally purchased for the benefit of ISH. Orders to effect that result will be made. 4. Mr S Philips of Counsel appeared for the Society. I gratefully acknowledge the assistance I have received from both his full written submissions and thorough presentation of the evidence. For reasons I will next explain, there was no appearance for the defendants.