Chowdhury v Bangladesh Islamic Centre of NSW [2008] NSWSC 1073

New South Wales Supreme Court

CITATION : Chowdhury v Bangladesh Islamic Centre of NSW [2008] NSWSC 1073

HEARING DATE(S) : 18 September 2008

JUDGMENT DATE : 18 September 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Purported annual general meeting and removal of president invalid.

CATCHWORDS : ASSOCIATIONS AND CLUBS [28] - Officers, trustees, servants and committees - Removal - Purported removal of president invalid.

LEGISLATION CITED : Associations Incorporation Act 1984 s 26(3)(b)

CATEGORY : Principal judgment

Fakhruddin Ahmed Chowdhury (P) Bangladesh Islamic Centre of NSW Incorporated (D1) Mushtaque Ahmed Syed (D2) Shahid Uddin Ahmed (D3) Serajum Monir Chowdhury (D4) PARTIES : Ma Yousuf (D5) Ariful Haque (D6) Firoz Ahmed (D7) Khasrul Alam Talukder (D8) Didarul Alam Chowdhury (D9) Ishrat Hussain (D10) Syed Qamrul Hasan (D11)

FILE NUMBER(S) : SC 4576/08

COUNSEL : R Mitry, Solicitor (P) J G Azzi (Ds)

SOLICITORS : Morgan Ardino & Co (P) No appearance (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 18 SEPTEMBER 2008

4576/08 FAKHRUDDIN AHMED CHOWDHURY v BANGLADESH ISLAMIC CENTRE OF NSW INC & ORS JUDGMENT 1 HIS HONOUR: These proceedings concern the validity of a meeting and a resolution of the first defendant. In August 2007 the plaintiff was elected as president and the second to eleventh defendants were elected as other office bearers of the first defendant for a period of two years expiring in August 2009. Disagreements have broken out between the plaintiff on the one hand and the second to eleventh defendants on the other. On 29 June 2008 a meeting was held purporting to be an annual general meeting of the first defendant. At that meeting a resolution was passed which purported to bring to an end the holding by the plaintiff of the office of president of the first defendant and the election of a new president in his stead. 2 By summons filed on 5 September 2008 the plaintiff sought in effect declarations that the meeting was not a valid annual general meeting of the first defendant and that the resolution at the meeting that purported to remove him from office was invalid. That summons included a prayer for an order removing the second to eleventh defendants from office or from conducting the business of the first defendant. However, it is clear that there is really no basis for orders to that effect and, indeed, the plaintiff conducted the proceedings on the basis of seeking only the declarations of invalidity which I have mentioned above. 3 On 12 September 2008, when the matter came before me on the application for interlocutory relief, I suggested that to save time and money the proceedings be conducted on that day as a final hearing. The defendants would not consent to that course and I granted interlocutory relief preventing the defendants from acting on the basis that the defendant had been validly removed from office or that the meeting of 29 June was a valid annual general meeting of the first defendant. I then stood the matter over to today. Today the defendants have sensibly consented to the matter being heard on the basis of a final hearing, so that time and money need not be spent on the proceedings beyond today. 4 Central to the matters that I have to resolve are provisions of the constitution of the first defendant, which is incorporated under the Associations Incorporation Act 1984 ("the AIA"). Those provisions need to be set out at length. 5 The constitution provides by clause 31: "31(a) The Centre in a General Meeting may by resolution remove any member of the Executive Council from the office before the expiration of the member's term of office and by resolution appoint another person to hold office until the expiration of the term of office of the member so removed.