Ahmed v Chowdhury [2012] NSWSC 1452

Supreme Court New South Wales

Medium Neutral Citation: Ahmed v Chowdhury [2012] NSWSC 1452 Hearing dates: 21.09.2012, 17.10.2012 and 13.11.2012 Decision date: 28 November 2012 Jurisdiction: Equity Division Before: Lindsay J Decision: 1. Declare that the displacement of the first plaintiff as General Secretary of the fifth defendant on or about 24 April 2011 and the election, or purported election, of members of the fifth defendant to the Executive Council of the fifth defendant on 17 June 2012 are not invalid by reason of any contravention of the Associations Incorporation Act 2009 (NSW) or any provision of the constitution of the association. 2. Declare that, subject to the provisions of the Associations Incorporation Act 2009 (NSW) and the constitution of the fifth defendant, the Executive Council of the fifth defendant is constituted by the persons declared to have been elected to the Council on 17 June 2012. 3. Order that the first plaintiff, by himself his servants and agents, be restrained from acting, or holding himself out as entitled to act, as the General Secretary of the fifth defendant by reason of any election or appointment, or any purported election or appointment, that may have occurred before 17 June 2012. 4. Order that the costs of the proceedings (including the costs of all parties other than the fifth defendant), assessed on the ordinary basis, be paid by the fifth defendant. 5. Order that the interlocutory injunctions numbered 1, 2 and 8 made on 15 December 2011 be discharged. Catchwords: ASSOCIATIONS AND CLUBS - officers, trustees, servants and committees - removal - whether plaintiff's removal as General Secretary was an "irregularity" within the meaning of s 1322 of the Corporations Act 2001 (Cth) - whether controversial meetings which led to plaintiff's removal were validly called - not practical to restore the membership of governing committee to what it was before plaintiff's displacement as General Secretary - effect of subsequent election. Legislation Cited: Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Associations Incorporation Regulation 2010 (NSW) Corporations Act 2001 (Cth) Corporations (Ancillary Provisions) Act 2001 (NSW) Corporations Act: [2011] NSWSC 954 at [12]. Uniform Civil Procedure Rules 2005 (NSW), rr 6.20 and 6.25 Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Law Reform (Law and Equity) Act 1972 (NSW)) Uniform Civil Procedure Rules 2005 (NSW) Corporations (Ancillary Provisions) Act 2001 (NSW) Supreme Court Rules 1970 (NSW) Courts and Crimes Legislation Further Amendment Act 2010 (NSW), No 135, Schedules 6.1 and 6.4; Civil Procedure Act s 4(1A), Part 10, and Schedule 6 Part 5 Cases Cited: Chowdhury v Bangladesh Islamic Centre [2008] NSWSC 1073 Beck v Law Furniture Consolidated (Aust) Pty Limited [2012] NSWCA 76; 87 ACSR 672 at [222]-[225], [232]-[233] and [236]-[240] NSW Masonic Youth Property Trust v Attorney-General (NSW) [2009] NSWSC 1301; 3 ASTLR 520 at [123]-[153]. Goold & Porter Pty Ltd v Housing Commission [1974] VR 102 at 104 Countouris v Kallos [2008] NSWSC 840; 67 ACSR 543 at 546 [14] v Law Furniture Consolidated (Aust) Pty Limited [2012] NSWCA 76; 87 ACSR 672 at [222]-[225], [232]-[233] and [236]-[240] John v Rees [1970] Ch 345 at 369H- 374E (esp at 369H-370H, 371G-372A and 373H-374C) Duke of Bedford v Ellis [1901] AC1 at 8-11 Adair v New River Co (1805) 11 Ves 429; 32 ER 1153 Cockburn v Thompson (1809) 16 Ves. Jun 321; 33 ER 1005 Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 at 417 Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 at 417. Clark v University of Melbourne [1978] VR 457 at 475-477 Clark v University of Melbourne (No 2) [1979] VR 66 at 67 Templeton v Leviatan Pty Limited (1921) 30 CLR 34 at 75-78 Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398 at 403, 408, 415-424 and 427-429 Wong v Silkfield Pty Limited (1999) 199 CLR 255 at 261-263 [13]-[17] Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at 21-22 [6] and 29-30 [33]-[34] Edge; Re Eco Panels Australasia Pty Limited (In Liq) [2007] FCA 30; 61 ACSR 139 at [6]-[13] Wong v Silkfield Pty Ltd (1999) 199 CLR 255 at 262 [15] Cameron v Hogan (1934) 51 CLR 358 at 370-373 Scandrett v Dowling (1992) 27 NSWLR 483 Metyor Inc v Queensland Electronic Switching Pty Limited [2003] 1 QR 186 at [10]-[13] Spokes v The Grosvenor and West End Railway Terminus Hotel Co Ltd [1897] 2 QB 124 at 128-129 Jameson v Professional Investment Services Pty Limited (2009) 72 NSWLR 281 at 283-284 [3]-[5]) John v Rees [1970] Ch 345 at 370 EF; Campbells Cash & Carry Pty Limited v Fostiv Pty Limited (2006) 229 CLR 386 at 418 [44]. Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 at 21-22 [6] Arakella Pty Limited v Paton (as Representative of the Unitholders of GNS Training Trust) (2004) 60 NSWLR 334 at 346-349 [51]-[65] Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at 580 [63] Shepherd v Australia & New Zealand Banking Group Limited (1996) 20 ACSR 81 at 96 (lines 33-34) Scarel Pty Limited v City Loan & Credit Corporation Pty Limited (1988) 17 FCR 344 at 348, Foss v Harbottle Rivers v Bondi Junction-Waverley RSL Sub-Branch Limited (1986) 5 NSWLR 362 at 373F-374G and 376G-377 Ryan v South Sydney Junior Rugby League Club Limited (1974) ACLR 486 at 499 Singh v Singh [2008] NSWSC 386 at [156]-[158] Australian Coal & Shale Employees' Federation (1937) 38 SR (NSW) 48 at 60-61 McClelland v. Burning Palms Surf Life Saving Club [2002] NSWSC 470; 191 ALR 759 at [109] Rose v Boxing NSW Inc [2007] NSWSC 20 at [54]-[57] Goodwin v Vietnam Veterans Motor Cycle Club Australia NSW Chapter Incorporated (2008) 72 NSWLR 224 at 225 [3] and 231-232 [32]-[38] Luen Fook Tong Incorporated v Lowe [2011] NSWSC 1004 at [32] and [39] Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583-584 Federal Commissioner of Taxation v Bargwanna (2012) 244 CLR 655 at 661 Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd (1969) 92 WN (NSW) 199 at 207 Bailey v New South Wales Medical Defence Union Ltd (1995) 184 CLR 399 at 435-437 Bennett v Murray (1940) 64 CLR 382 at 390, 399, 405 and 406 Federal Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204 at 217 and 224 Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 at 222-223 Sturt v Farran [2012] NSWSC 400 Macdougall v Gardiner (1875) 1 Ch D 13 at 25-26 Texts Cited: P W Young, Declaratory Orders (Butterworths, Sydney, 2nd ed, 1984), paragraph [606] Unincorporated Non-Profit Associations: Their Property and Their Liability (Oxford, 1959), pp 94-96 KL Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (Law Book Co, Sydney, 1986), pp 190-192 Ashburner's Principles of Equity (2nd ed, by Denis Browne, Butterworth & Co, 1933) at p 43 Storey, Commentaries on Equity Jurisprudence (1st English ed, 1884), ch 22 (paras 852-860, on pp 567-570) Halsburys Laws of England (1st ed, 1910) vol 13, para 68 SJ Stoljar, Groups and Entities : An Inquiry into Corporate Theory (ANU, Canberra, 1973) KR Handley, Spencer Bower and Handley: Res Judicata (Lexis Nexis, London, 4th ed, 2009), paragraph [9.20] RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (Lexis Nexis Butterworths, Australia, 2005) paragraphs [7.25] and [19.7]-[19.16] RP Austin, HAJ Ford and IM Ramsay, Company Directors: Principles of Law and Corporate Governance (Lexis Nexis Butterworths, Australia, 2005) paragraphs [7.25] and [19.7]-[19.16] G Dal Pont, Charity Law in Australia and New Zealand (Oxford UP, Melbourne, 2000), ch 4-7 F.R. Jordon, Equity in NSW (6th ed, 1947), p 38 Category: Principal judgment Parties: Kabir Ahmed (1st plaintiff) Ayubur Rahman Chowdhury (1st defendant) Moshiur Rahman Redoy Sheikh (2nd defendant) Harun Rachid Azad (3rd defendant) Motiur Rahman Hakim (4th defendant) Bangladesh Islamic Centre of New South Wales Incorporated (5th defendant) Saiful Islam Chowdhury (6th defendant, formerly 2nd plaintiff) Iftikhar Uddin (7th defendant, formerly 3rd plaintiff) Fazlur Rahman (8th defendant, formerly 4th plaintiff) Representation: D O'Connor (1st Plaintiff) on 17 October 2012 only. L Young (1st and 3rd Defendants) Mitry Lawyers (1st Plaintiff) (HM Ayoub appeared on 21 September 2012 and M Lee appeared on 13 November 2012) File Number(s): 2011 / 173388