Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rana v Survery [2013] NSWCA 234 Hearing dates: 26 February 2013 Decision date: 24 July 2013 Before: Bathurst CJ at [1]; Macfarlan JA at [83]; Hoeben JA at [84] Decision: Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ASSOCIATIONS AND CLUBS - incorporated association - resolution at committee meeting regarding nominees for membership - whether primary judge erred as to resolution to approve candidates. ASSOCIATIONS AND CLUBS - incorporated association - effect of a conclusive evidence provision in the Association's Constitution. Legislation Cited: Associations Incorporation Act 1984, s 11, s19 Associations Incorporation Act 2009, s 26 Associations Incorporation Regulation 1999, Schedule 1 Corporations Act 2001 (Cth), s 140 Cases Cited: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Kerr v John Mottram Ltd [1940] 1 Ch 657 Islamic Association of Western Suburbs Sydney v Survery [2008] NSWSC 875 Category: Principal judgment Parties: Wajahat Ali Khan Rana (First appellant) Mohammad Abdul Sami (Second appellant) Rab Nawaz (Third appellant) Hafizur Rahman Khan Survery (First respondent) Masud Cheema (Second respondent) Islamic Association Western Suburbs Sydney Incorporated (Third respondent) The Australian Islamic College of Sydney Limited (Fourth respondent) Representation: Counsel: P Taylor SC and A M Pickles (Appellants) A Cheshire (Respondents) Solicitors: Denison Toyer (Appellants) NA Lawyers (Respondents) File Number(s): 2012/306283 Publication restriction: No Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 905 Date of Decision: 2012-08-10 00:00:00 Before: Pembroke J File Number(s): 2011/400057 Judgment 1BATHURST CJ: This is an appeal from a judgment of a judge of the Equity Division of the Court in which his Honour dismissed a claim brought by the appellants that 183 or 186 persons were validly admitted to membership of the Islamic Association Western Suburbs Sydney Inc. (the Association) at a meeting of the Executive Council of the Association on 21 November 2008. As the appeal was ultimately formulated, it was contended that there were 175 persons admitted on that date, being "the 175 people listed on the handwritten list that was Exhibit B in the proceedings" and whose names are set out in a typewritten list annexure marked "21 November 2008 Executive Council Resolution List". Background 2The Association is an incorporated association that at the relevant time was incorporated under the Associations Incorporation Act 1984 (Act). Its objectives as stated in its Constitution are to "foster and promote Islam and to assist Muslims to abide by the principles of Islam in regard to their social, moral and spiritual way of life and to organise instructions in certain languages and cultures as determined by the members from time to time". 3The appellants are members of the Executive Council of the Association. The first respondent (Dr Survery) and the second respondent (Mr Cheema) are respectively the President and Secretary of the Association and are also members of the Executive Council. 4The following provisions of the Association's Constitution are relevant to the issues in these proceedings: "2. MEMBERSHIP 1) The membership of the Association shall be of three categories: a) Full member b) Association member and c) Honorary member 2) Excepting that the Associate and Honorary members cannot be elected to any position in the executive council nor that they can vote in any election of the Association, they shall have all other privileges and rights as those of full members. ... 4. REQUIREMENTS FOR MEMBERSHIP 1) Membership of the association shall be open to all Muslims over the age of sixteen (16) years provided the applicant: a) Believes in the finality of Prophet Muhammad (SAW) as the last and final prophet of Allah (SWT) and that no prophet or reformer of Islam succeeded him or ever will. b) Is not a full member of any other Islamic association or society in Australia. c) Believes in IAWSS constitution and will always work to uphold it. d) Is a citizen or Permanent Resident of Australia. 2) Associate membership of IAWSS shall be open to every Muslim over the age of eighteen (18) years and regardless of their being a member of other Islamic associations or societies. An Associate Member will not be entitled to vote on any IAWSS occasion. 3) Honorary membership may be conferred by the Executive Council on any distinguished Muslim who by his action the cause of Islam in Australia. 4) The executive council shall have the right to refuse membership to any person without giving any reason. 5) The Muslim Heads of the Diplomatic Corps resident in Australia may be considered as PATRONS to the Association subject to the approval of the executive council. ... 8. REGISTER OF MEMBERS 1) The public officer of the Association shall establish and maintain a register of members of the Association specifying the name and address of each person who is a member of the Association together with the date on which the person became a member and the category of membership. 2) The register of members shall be kept at the principal place of administration of the association and shall be open for inspection, free of charge, by any member of the association at any reasonable hour. 9. FEES, SUBSCRIPTIONS, ETC 1) The annual subscription for membership shall be ten dollars ($10) per member such other amount as the members may in General Meeting decide. 2) A member shall be non financial if his/her subscription is not paid within two months of the end of the financial year. 10. MEMBERS' LIABILITIES 1) The liability of a member of the Association to contribute towards the payment of the debts and liabilities of the Association or the cost, charges and expenses of the winding up of the Association is limited to the amount, if any unpaid by the member in respect of membership of the Association as required by rule 9. ... 12. POWERS, ETC, OF COMMITTEE 1) The committee shall be called the executive council of the Association and subject to the Act, the regulation and these rules and to any resolution passed by the Association in general meeting: a) Shall control and manage the affairs of the Association; b) May exercise all such functions as may be exercised by the Association other than those functions that are required by these rules to be exercised by a General Meeting of members of the Association; and c) Has power to perform all such things as appear to the Executive Council to be necessary or desirable for the proper management of the affairs of the Association. d) E.C, before entering into any litigation in regards with any matter/s affecting IAWSS and that could involve an expenditure of more than $100,000, shall not proceed to do so without the prior approval of a General Meeting (SGM or AGM) of IAWSS. ... 16. PROCEEDINGS OF EXECUTIVE COUNCIL 1) The executive council may meet together for the despatch of business, adjourn and otherwise appoint and regulate its meetings as it thinks fit. The President may at any time and the secretary on the requisition of any two (2) members of the Council summon a meeting of the Council. ... 5) Proceedings of the business transacted at any meeting shall be forthwith entered in the minute book and shall be confirmed at the succeeding meeting and signed by the president and so confirmed and signed, shall be conclusive evidence of the matters therein set forth." 5Although it is not expressly set out in the Association's Constitution, the parties proceeded on the basis that members could only be admitted to the Association by the Executive Council. In my opinion this is correct. It is implicit in the power contained in cl 12(1)(a) of the Constitution to control and manage the affairs of the Association and, further, in the power in cl 12(1)(b) to exercise such functions as may be exercised by the Association other than those required by the rules to be exercised by a General Meeting. It is also implicit in the Executive Council's power to refuse to admit persons to membership under cl 4(4) of the Constitution. 6There have been a number of previous disputes between various members of the Association as to the precise identity of those persons who had been admitted to membership. The disputes were resolved in earlier proceedings in the Equity Division of this Court: Islamic Association of Western Suburbs Sydney v Survery [2008] NSWSC 875. 7Following the delivery of judgment in that case on 26 August 2008, a meeting of the Executive Council was held on 1 November 2008 where concerns about membership were raised and a membership committee was appointed. The membership committee produced a report recommending procedures for membership. 8There was a further meeting of the Executive Council on 7 November 2008; the minutes record the following comments by Brother Sami: "New membership applications as attached list subject to scrutiny by the membership committee, resolution passed unanimously final decision after report received." 9It was in these circumstances that the meeting of 21 November 2008 took place. On the question of membership the minutes record the following: "DR. Kirmani: Membership list:- BR. Masud & BR Wajahat: Take [170] now later on [41] Dr Kirmani: Capped at 500-550 is ok and review??? Constitution. BR. SOHAIB - out of (440) members in old list only [300] are interested. BR Masud: People supported us, helped us, we must accept them. We gave commitment to them to BR, IRFAN, BR SAHFAQT & BR IFTEKHAR it should be unanimously not just voting. All agreed to this. Our Association Strong but ??? (unreadable) DR Kirmani: let us fulfil our promise first, review and take the leftover also. DR. AKRAM - Every Ex member must give their opinion None of us should be against of the decision BR Masud - They are our strength of AGM, etc We need them have to work hard do not have to worry in future elections member numbers. BR. Wajahat - Why not cap at [600] then we can take all of them. DR Survery; just (300) it took us from 1000.AM to 6.00 pm. When there is (600) will take much longer. BR Wajahat - AGM & election to be held on separate day * break for Ishah prayer at 9.30pm. BR. Ajaz we have to take immediate family members of EXC Committee also BR. Abbas. We should take all. BR Wajahat, BR Masud & BR Sohaib - ex committee family members are already included in this list. BR Wajahat - Decision made already we should not refuse BR Sami's list/membership forms also accepted So total (141) at 21/11/08, plus (10) Br Zahir, Br AKRAM (6) BR Ajaz (few) TOTAL: (160) plus (440) = (600) final. Resolution passed approved (175) & remaining (77) will be considered in March/April 2009 after review constitution. Moved by BR Masud Second BR Sohaib" 10It is to be noted that the minutes do not identify those persons said to have been admitted to membership either by name or by reference to any list. 11Evidence as to what occurred at the meeting of 21 November 2008 was given on behalf of the appellants by the first appellant, Mr Wajahat Ali Khan Rana, and by a Mr Zaheer Shah Khan. Evidence given by Mr Rana in his affidavit in chief affirmed 2 June 2012 was to the following effect: "6. Following the AGM there were more than 200 applications for membership of the IAWSS to be processed. The membership committee processed the applications and forwarded to the Executive Council for final approval. 7. On 21 November 2008 in the meeting of the Executive Council, the Executive Council resolved to approve 175 applications with the balance of 77 to be considered in early 2009. Exhibited hereto and marked with letter 'W4' is copy of the hand written minutes of EC meeting dated 21 November 2008. 8. I recall that at that meeting Mr Zaheer Shah Khan, at that time the secretary of the IAWSS recorded the names in the original minute book. This hand written list is annexed and marked 'L' in Mr Cheema's affidavit dated 28 April 2012. In fact the list of names from the minute reveals that about 186 applications were accepted and approved. 9. To the best of my recollection most of the membership application forms were properly filled. Mr Zaheer Shah Khan retained all forms of those persons who were accepted as members and he returned to me the forms of those who were to be admitted in early 2009." 12He elaborated on that evidence in an affidavit in reply affirmed 19 July 2012: "4. As the minutes record, the membership applications in November 2008 were supported by Mr. Cheema. After all at least 60 to 70 applications were of relatives and a circle of close friends of Mr. Cheema and his business partner Sohaib Malak. It was proposed that from some of the new families only two applications should be admitted at that stage. Accordingly the numbers were limited to 175. After the resolution was passed unanimously all the application forms were sorted out by the members of the Executive Council. What is not recorded in the minutes is that all the EC members dictated the names of approved members and Zaheer Shah Khan wrote a list. As a consequence of that process eventually he came up with the figure of 186 new members. The application forms of those 186 members were given to Zaheer Shah Khan and the remaining forms were given to me." 13It will be noted that in his first affidavit Mr Rana contended that 175 members were admitted to membership. However, in his second affidavit Mr Rana contended that 186 members were admitted to membership. 14In cross-examination Mr Rana stated that he counted the application forms. He then gave the following evidence as to what occurred at the meeting: "Q. What do you say the next stage was at that meeting? You counted the application forms what happened next? A. One-by-one all the forms were going through from me to the secretary and each and every IAWSS member were approving that. And it was - Zaheer Shah Khan was sitting there, he was the secretary, he was writing it down. Whatever the application form coming in to his hand and was approved he was writing it down there. Q. Let's take that in stages. You have a pile of about 250 applications forms? A. I did not apply, the people hand it over to me, as it was assigned by the IAWSS to me as one of the committee member. There was four committee members of membership committee. Q. Just listen to my question. During that meeting, towards the beginning, you have a bundle of applications forms? A. That's right. Q. About 250 in your hand? A. Yes. Q. You say you went through and counted them all? A. That's right. Q. And gave the exact number? A. That's right. Q. Did you then read out to the entire committee the first application form? A. No, I did not. Q. So what did you do, did you give the form to somebody else? A. No, it was most of the form belong to the IAWSS member, all their family, all their friends or whoever. I hand it over to them. That was all the people I spread the forms. I handed out approximately 80 forms with me. Q. So you have 250 forms initially? A. Mm-hmm. Q. Then you gave out, you say, 170 forms, about that? A. Yes, approximately, yes. Q. Who did you give the 170 forms to? A. All the IAWSS members. Q. So, how did you go through that process, did you hand them out like a pack of cards, one to him, one to him, one to him? A. No, because we know whose form belongs to whom. Aijaz Khan brought those names and the forms. We give it to Aijaz Khan. Mr Cheema brought 60 to 70 people. We gave it to him. Shoaib Malik brought a number of people as well. Sami Quazi had ten, fifteen people on his side. So I give it to them. We live in a very small community. Q. You have about 250, you went through them and gave them to the person you thought they were associated with? A. Yeah. They asked for it. They were sitting there saying, that's my relative, that's my friend. We were sitting on a table in a meeting. Q. Did you announce the name of the individual person- A. Yes, that's right. Mostly I knew who gave it to me and then whoever not, they said that belongs to me, give it to me. Q. So you then gave all of the applications, but you've got about I think you said about 80? A. Approximately, yes. Q. Then after that I think you said that you went through each applicant one-by-one, is that right? A. Not me, the IAWSS does that procedure, not me who did it. Q. Who on the executive committee went through each one individually? A. Who, what do you mean by that? Q. You've each got your titles. How does the process then start? A. I think it started with Mr Cheema. Dr Kirmani asked for Mr Cheema to start it and he started one. Then he went to each in individuals. Q. It was Mr Cheema who started, did Mr Cheema then go through each form and say I've got application form from Mr So and so or Mrs So and so, and announce the names, is that how it was? A. Yes. Q. There was then debate between the Executive Council with each member? A. Not debate there was a bit of a discussion. They wanted to know who these people are or what they have done for the Association in regards to the helping the Court case in the past which we just came out of. And relatives as well, because majority of them they were relative to that the Executive Council committee members, or they were close family friends. Q. As you went through Mr Cheema's, what was the result of his? A. I mean, it was a general thing. It went through Mr Cheema then Sami Quazi then people in my hand, and all that. It just not went one-by-one and says all right - the whole procedure, do you want me to quickly explain that so it is easier? Basically what happens is that everyone is holding the papers in their hand and then one application went forward, and they says, okay, we don't have any problem. Objection will come here. We'll put this one in the middle. We'll discuss this later on. Now we can discuss this. So there was a basically so much times read we backward and forward we move on the forms. At one stage we say, what we have to do is revisit them and we should not take more than two from one family. Because there were more than members of four people from one family. We have to revisit the pile and took the two forms out of that family, so we can spread the membership across the broader community. So instead have of having 30 families, for example, just for example, we had thirty family and four each, that became 120. So why don't we have 100 family and each from every family. I am just giving an example, that is not the right thing. That means it will spread to the 100 family. The broader community will be involved in the Association. Because this belongs to Association, the community. This is how it had worked. Q. So you've handed out the forms to the individuals, then one-by-one somebody would mention an applicant and say who they were and either they say, yes, it is approved or go to the middle for discussion later? A. That's right. Q. Part-way through that process, somebody said, why don't we limit it two applications per family? A. Yeah, some of the family, not every family. Q. Then you went back and started the process again- A. No not start the process again. We went this family, four people from this family, we'll take only two husband and wife, take the children out from there. Q. I think you said you had to revisit the ones that it already gone through? A. Revisit. If you have a full pile of 20 or 50 forms, of course you have to go through the forms to take two of them out from there or five of them out from there. Q. At the end of the process you had a pile of forms that had been approved and forms that had not been approved, is that correct? A. At the end we had all the forms approved and at one stage we stopped, all right the rest - 175 then was calculated to approve and 77 said they are approved as well, they approve that, but say they will become a member after the foundation member meets in April. That was the ruling by Dr Kirmani. ... Q. Do you say that after the approvals had been made for the 175, do you say that anybody made a list of that 175? A. Actually, then right there, when the forms were handed over to the secretary he was writing them down. Q. So the secretary wrote down- A. That's right. Q. -the names of every person who the Executive Council had approved? A. That's right. Q. So when you left the meeting, when the meeting came to finish, your evidence is that all of the new members had been written down in a list? A. Yeah, he was writing it down and that was the conclusion as well. Q. So that list then should be, should it not, 175 people? A. Yes. But during the process- ... HIS HONOUR Q. Mr Rana, did you not distinguish between the 175 and the remaining 77 in your evidence earlier? A. Yes, your Honour. Recommendation from the membership committee was all members, all applications should be approved. But at one stage when we were going through the process, Dr Kirmani stopped says, okay, that's it. We stop here and the rest of the members - which I recall was the 77 applicants - will become member of the Association in April 2009 after the amendment. So he did not say, I am going to accept them. What he said is we have to stop it because that is big numbers we already have and all these members will become a member in April 2009. CHESHIRE Q. So is it then your evidence that partway through the process once you got to 175 Dr Kirmani said, that's enough, we've got to 175? A. He says, 'we should stop somewhere here', yes. Q. But you stopped there? A. Not me. Q. The whole Executive Council stopped? A. That's right. What happened is, once we stopped the procedure went on again, okay, went on. There's okay, Dr Kirmani please put one more, two more from here and there that's how it was happening. Q. So did Dr Kirmani we should stop now we have 175? A. He did, yes? Q. Then you say in fact other people proposed a few extras, is that right? A. That's right. Q. Were they accepted as well? A. I think so. ... Q. Just answer my questions. If it is not in the minutes and you're dissatisfied with the minutes, why then did you not put it in your affidavit that in 2009 you mentioned the other members and what's happening with them? A. I don't know, but it may be in the minutes, because we never get a copy of the minutes so we don't know that. Q. So your evidence then is at the end of the meeting on 21 November there was a list which was the list of 175 members, is that right? A. 175 members? Q. Yes. The 175 people approved. A. That was approved - I haven't seen the list because I was sitting far end on the table and Zaheer Shah Khan the secretary was sitting next to Mr Kirmani, two or three chairs away from him. Q. Your understanding was that he had written down a list? A. Yes, he was writing it down. Q. And you understood that was a list of all the 175 members who had been approved? A. Yes. ... HIS HONOUR Q. Mr Rana, would you like to elaborate you were about to say something? A. Actually, your Honour, the meeting was progressing. As we can see there was 141 in total in here. And then the discussion kept on going, the forms keep on coming, and if you see the next two lines the number has increased from 141 to 175. Then as I mentioned Dr Kirmani's words that the remaining will become member in 2009, April. There was a lot of discussion - if you go through these minutes, initially there were few and they kept on adding as IAWSS was discussing and they were coming to conclusion, that was a conclusion at the end. At Mr Cheshire mentioning it was 186 numbers; 186 numbers that was the result of those conversations and the conclusions that people say, okay, if you have done that, why don't you put one of my cousin or something like. That's how it exactly happened. CHESHIRE Q. Mr Rana, just to be clear on that. The two lines the three lines which we discussed in which I read to you which have the total 141, et cetera, those two lines? A. Yep. Q. Where we started with Brother Sahail, remember those three lines that I read to you. Those words you call it the discussions about you have one, I have one, I've got a few? A. No, I didn't say that. It kept on going. Q. At the end of the process there was a resolution? A. That's correct. Q. The resolution at the end of those process was for 175? A. That's correct. Q. So there was never a resolution for 186? A. No, it wasn't. But as I say he committee was continuing after the resolution as well, and all the IAWSS members they were just trying to have whatever they have possible, like, the friends or their close to people try to get in. So that's how the 186 happened. HIS HONOUR Q. Mr Rana, if after the 175 was approved, a few more cousins and friends applications were considered, was there a resolution? A. No, it wasn't, your Honour. No, it wasn't. I'm telling you my understanding how it become 186. I am not aware of 186 then. The resolution was 175. That was my understanding as well. But what I'm trying to explain to Mr Cheshire is, this may have happened because the meeting was carried on." 15In an affidavit affirmed on 1 May 2012, Mr Zaheer Khan gave the following evidence: "4. To the best of my recollection Aijaz Khan being treasurer of the association was in charge and coordinator of the Membership Council. Almost 250 persons had applied for membership of the association. On or about 21 November the Executive Council meeting took place in which between 160 to 186 applications were approved for membership. It was decided by the Executive Council that the remaining applications will be approved in April 2009. Almost all the Executive Council members were involved in submitting the membership application forms of their own circle of friends and relatives. The membership application forms were given to me by the membership Committee after completing the procedure of due diligence during an executive council meeting of 21 November 2008, in which around 186 applicants were admitted as members." 16In a subsequent affidavit affirmed on 18 July 2012, he gave the following additional evidence: "7. The membership committee presented the application forms after due diligence, at the EC meeting of 21 November 2008. Almost each applicant was discussed, and it was proposed by EC members to only take two members from each applicant family and remaining application will be considered in Mar/Apr 2009. In fact, the minutes record accurately that Mr Cheema supported the majority of the membership applications and after lot of discussion he was the person that proposed the resolution for the approval of 175 applicants. The resolution was seconded by Sohaib Malak, a business partner of Mr Cheema and member of the EC. 8. Although not recorded in the minutes, after the resolution, a handwritten list of memberships was prepared by me. The list is the handwritten list of 186 members referred to in paragraph 26 & 27 of Mr Cheema's affidavit dated 11 Jul 2012. this is a copy of the true record handed over by me to Mr Cheema on 28 February 2010. The list has many names crossed out. This was because given the decision not to approve more than two members of any one family, I was told by the EC members including Dr Kirmani, the president, to cross out some names, but to add others in their place. By going through this procedure, the membership list was created by me which reached to the 186 members. Thus, although the resolution was for 175 members to be approved, in fact 186 members were accepted by the Executive Council through that process. The remaining membership application forms were handed over to Mr Wajahat Rana for reconsideration in Mar/Apr 2009, as Mr Wajahat Rana was most active member of EC and membership committee." 17The list referred to was a document headed "New applications for IAWSS membership recd. 21/11/08". It lists 186 names with the expression "ok" alongside most of them. However, some names were crossed out and other names written over them. In some cases the names of the parties crossed out were added back at the end of the list. 18It should be noted that Mr Zaheer Khan's evidence in his affidavit of 18 July 2012 was that he prepared the list after the resolution. 19In his evidence in chief at the trial Mr Zaheer Khan gave the following additional evidence concerning the list: "Q. Underneath that there's a number of remarks next to each person whose listed and a lot of the time is simply 'ditto'? A. Yeah. Q. And there's an identification in some cases of 'paid' and '55'? A. Mm hmm. Q. Is that your writing? A. Yes. Q. Then to the right hand side there's another column that says, 'okay'. Do you see that? A. Yes, it's okay. But I'm not sure whether I had written that. Q Do you know what the okay means at all? A. Let me - must be application is proper. Q. Was it something that you wrote on the form at the time that you wrote the list? A. I just cross the applications, 'paid' and signed it (witness indicated). I enter into that list. Q. Some of the people on the list or quite a lot of them have highlighting through them? A. Yeah, that's it. Q. Do you see that? A. Yes. It's forms are there. Q Did you do that? A. Yes. Q. When did you do that? A. This was done as, as they were paying the fees and I do cross out (witness indicated)." 20In cross-examination he described what occurred at the meeting of 21 November 2008 in the following terms: "Q. So, at the beginning of the meeting Mr Rana had a big bundle of forms? A. Right. Q. Is that right? A. That's correct. Q. It's right, isn't it, that Mr Rana effectively presented those to the meeting and said that he had some forms to be considered, that's right isn't it? A. Not himself. Then it was passed to the other members who brought the forms, all gave it to me, because Aijaz - Masud, Aijaz and Nizahali, Cheema the membership committee. In the membership committee. Q. So, you say that Mr Rana had all of them? A. In the first, initially when, when the argument for the numbers was discussed, then they say, okay, these are not all his, so he transferred, gave back to Cheema, Shoaib, Nizahali. Q. Isn't it the fact of the case that there was a conversation between Dr Kirmani and Mr Rana about how many forms there were and Dr Kirmani said to Mr Rana, 'It looks as if there were more than 200 forms'? A. Yes, there was one. Q. Isn't it that Dr Kirmani said, 'It looks as if there are more than 200 forms' and what Dr Kirmani then suggested is that all of the forms should be considered by the membership committee? A. That's correct. Q. And so, isn't it the fact of the case that Dr Kirmani at the time of the meeting said, 'All of the forms should be considered by the membership committee'? A. Mm hmm. Q. And there was then no vote at that particular meeting as to accepting any of the individuals applicants, that's right isn't it? A. It was all proposed, approved for 175 people, applications. It's here in my minutes. Q. Don't worry about the minutes. Can you tell me, do you have a specific recollection of the resolution? Can you remember precisely what was said? A. There was about, it was Cheema and Wajahat take 170 now and the remaining 41 later. Q. Who said that? A. Brother Cheema and Wajahat." 21Shortly after in his cross-examination, Mr Zaheer Khan changed his evidence as to the number of members approved from 170 to 175: "Q. Do you remember exactly which numbers were used? A. What do you mean used? How many became member? Q. No. When there was a proposal put to the committee, do you remember the exact numbers that was put to the committee? A. It's about, between 230 and 250. Q. That's the number of application forms? A. That's correct, yeah. Q. When the committee came to make a decision about what to do, do you remember? A. 175. Q. Was it 175 exactly? A. 175. Q. Do you remember that number being used, 175? A. Yes." 22He then gave further evidence as to the process which took place at the meeting: "Q. And at the time the number of 175 was used they hadn't actually identified who were going to be the 175, that's right isn't it? A. (No verbal answer). Q. Is that right? A. This was a job of the membership committee. Q. Yes. And that was going to be done after the meeting? A. Because this was going on from November. He collected the forms and finally on the 21st they presented it. Q. So, what I just want to clarify is, is it right that at the meeting what you say happened is that the committee decided we will take 175 members? A. Mm hmm. Q. And it was then for the membership committee after 21 November to work out who were going to be the 175? A. No. I think this was from first, first November meetings. The committee was formed. The forms were being I think collected. So, they had 3/ 4 weeks, 3 weeks. And the 21st they were presented. Q. But it was Mr Rana who presented the forms, wasn't it? A. He had the collection full. But when they, when they were asked, 'Is all this belongs to you?' He said, 'No. It's only few belongs to me. The supporters. The rest belongs to Cheema, Shoaib, Wajahat, Malik and Nizahali. Q. But he had about 240 forms? A. Yeah, between 230 and 250. Q. And the committee in that meeting decided, as you say, to take 175 new members, yes? A. That's correct. Q. In that meeting the committee didn't decide who were going to be the 175, did it? A. There were the forms there already in front. Q. But you had between 230 and 250 application forms, didn't you? A. They were going through. The names were there. That's what's written. All they were. Q. You say the names were there? A. Yeah. Q. That's what was written, did you say? A. That's, that's what I was writing. The names were given the forms and I was filling up straightaway. Q. So, you say the stage was, the forms were handed out to the individuals? A. Mm, individuals. Q. Then you went through every application form? A. Not every. Just names were given there. Names written one by one, two, three, four, all that (witness indicated). Q. You say you wrote- A. That's it. Q. -every name? A. That's correct. Q. Then at that stage somebody said we should take 175, is that correct? A. No. 175 was initially agreed. Then started (witness indicated). HIS HONOUR Q. And then started? A. Started writing. CHESHIRE Q. And so, you say you didn't start writing any names until after- A. That's correct. Q. -the resolution about 175? A. Yes, that's correct. Q. Is that right? A. That's correct. Q. Do you say that before the meeting finished you had completed your list of 186, is that right, or what that- A. Almost complete. Q. Almost complete? A. Almost completed, yep. Q. So, how far had you got then before the end of the meeting? A. I think, I think I did close to that. Yep. Q. But not all of them A. Not, just the last, last few." 23Mr Zaheer Khan then gave the following evidence about the names which were crossed out: "Q. What about, for instance, if you look on page 3 of that list, do you see between the numbers or the fourth one down on the page there's a block about six- A. Yes. Q. -where people are crossed out and other names written? A. Yes. It was also discussed, your Honour, this one, because if one family member there's about three or four and one other family member, both supported, there were none, so they said we might take one or two out from there and take these people. That's exactly happened. Q. And did you do that, those crossings out? A. That's correct. Q. Sorry? A. Yes. Q. And you did the crossings out after the meeting, is that right? A. In minutes then and there itself. Q. In the meeting? A. Yes. Q. But you say that you hadn't finished the meeting? A. Not completely I finished, but name was added and crossed out and added the next place." 24He gave the following additional evidence in cross-examination: "Q. Did you ever show the list to the committee or did you take it away to finish it? A. No, I was preparing. It's with me. Q. Sorry? A. It was with me. The committee. And as I received the fee, the names were passed to the treasurer and he was maintaining the final lists. Q. During the meeting on 21 November, it's right, isn't it, that after you started writing the list out you didn't show it to the committee again, did you, for the committee to approve your list during that meeting? A. No, I didn't show because it was not fully completed. Because the, quite a few people hadn't pay the fees and all that stuff. So, that's the reasons. Q. Isn't really what happened that the committee, if the committee vote - sorry, if the committee said that it would take 175 people it then left it to you or you were then left to draw up a list after the meeting and that's what occurred, isn't it? A. After the meeting, no. Which list? This is the only list I've got (witness indicated). Q. During the meeting there may have been approval for 175, the number of 175? A. That's correct, yeah. Q. But the committee didn't identify which individuals were to go to make up the 175? A. Those the committee member, they said members were three or four from one family, that one or two will be taken out, give the other people there. So, all applications were approved in the sense and then it was written out, the crossed out and add their name (witness indicated). ... Q. I want to suggest to you then that with the other business that was considered and discussed in the meeting there simply would not have been time for the committee to go through all of the application forms and for you to write out a list of anywhere close to 186 people? A. I can assure you I can write it. ... Q. Why when the meeting was drawing to a close did you not say: 'Hang on a minute, I have nearly finished the list and you can all see it and approve it'? A. The executive members come up with that idea. Q. So you say the meeting just finished while you were in the middle of- A. No, I completed. Q. Sorry, do you say you had completed?A. I had completed. Q. Mr Khan, I asked you this a little while ago. You gave clear evidence that you had nearly finished it? A. Yes. Q. But you said you had not finished it? A. Nearly finished it is correct. ... Q. Is it your evidence, your sworn evidence, that you have a clear recollection, you have a recollection that at the end of the meeting you had written 175 names down? A. Yes, sir. Q. That is your evidence? A. Yes. Q. If that is right and the committee had said 175? A. Hm mmm Q. Why did you not stop then? A. Because again that's we crossed the names out, added to that and none of them objected and they were writing, and I was writing. Q. Did you inform the committee at that stage that you had already got to the 175? A. Yes, yes. Q. You said 'we've got to the 175'? A. Yes. Q. 'And I've still got a few more to do'? A. Yes. Q. You told the committee that, did you? A. Yes. Q. Is that recorded in the minutes?A. No, I don't think so. No. Q. It is not recorded in the minutes, Mr Khan, because it didn't happen. That's right, isn't it? A. It's not there." 25Finally, Mr Zaheer Khan stated that he had a clear recollection of completing the list at the meeting. 26Mr Zaheer Khan also gave the following additional evidence in cross-examination: "Q. With the forms, Mr Kahn, as the committee went through various forms were they handed back to you individually? A. Yes, it's all coming through the executive members. Some had 20, some had ten, some had six, like that. ... Q. You say that there were between 230 and 250 forms? A. Yes. Q. Did you count them? A. I put the numbers in there, yes. Q. You did count them? A. Yes. Q. You counted them during the meeting? A. I had a pen marking the numbers. Q. And was the process, that as a person, effectively, was mentioned by the member what they did then was pass the application form to you? A. That's right. Q. And you used the application form to copy the name down? A. That's correct. Q. Because, presumably, a lot of these people you didn't know? A. Personally, I didn't. As I said, I see them in congregation and that's it. Q. There would have been a lot of people you wouldn't have known how to spell the names? A. How to spell their names? Q. Yes. You would need to see them written down to copy the name down? A. Yes, of course, like this (indicated). Q. And the address as well? A. Yes. Q. So, therefore, the process was that somebody mentioned a name and then they said 'yes' or everybody indicated, yes? A. This was bundle belonged, say, for example Cheema, this bundle belonged to me, this bundle belongs to someone else. All there and entered like that. Q. Do you say you didn't go through them individually. Were they all just handed to you as a big bundle? A. Bundle was there with one person and then they say, right, this all belongs to me. The person has given says, right, this is your 25, that's your 10, that's your 15. That's your 5, like that. Q. Then they handed the bundle of forms to you? A. That's correct, with money attached - fee attached. Q. You then took the details from that form? A. That's correct. Q. To copy on to here? A. That's correct. Q. That meant that all of the names on here came from applications forms, didn't they? A. Definitely." 27The evidence given on behalf of the respondents was somewhat different. Mr Cheema's affidavit sworn 11 July 2012 relevantly was to the following effect: "8 A meeting of the Executive Council of the Association took place on 21 November 2008. I attended that meeting. 9 During that meeting, Mr. Rana said to the President Dr. Kirmani: 'I've got some application forms for membership.' Dr Kirmani said: 'OK where are they?' 10 Mr. Rana then presented a bundle of them to the Secretary Zaheer Khan and they started reading the names out loud from the forms. Dr Akram Choudhury also started checking the forms. 11 After five or six names had been read out, Dr. Kirmani said to Zaheer Khan: 'There look like more than 200 forms.' 12 Dr. Kirmani then said to Mr. Rana: 'This is not what we had agreed upon. We agreed on about 40 members. We will take your 40 members.' Mr. Rana said: 'But the rest of them are the spouses.' Dr Kirmani said: 'Some people should sit down and check the forms.' 13. Someone, although I cannot now remember who, then suggested: 'The membership committee should do their job and review the applications.' 14 A membership committee had previously been set up at the Executive Committee meeting on 1 November 2008, consisting of Mr. Rana, Aijaz Khan, Nizam Ali and I. I understood this suggestion to refer to that committee. 15. Everyone appeared to agree with that proposal in the sense that they indicated their consent by nodding their heads, saying 'yes' or in some other similar way. Nobody expressed any dissent or disagreement with that suggestion and there was no further debate about the issue of membership at that meeting." 28In cross-examination Mr Cheema said that there were a number of candidates recommended for membership by various persons and he did not express opposition to any of them. He also gave the following further evidence concerning the meeting and the minutes of the meeting: "Q. Are you suggesting that in the course of that meeting the number of applications brought by you was not mentioned at all? A. No. Q. No. Can I suggest to you in respect of each person who brought applications there was a discussion about - sorry, who recommended applicants, there was a discussion about the number of applications that they brought, that they recommended? A. No. Q. You moved from that discussion about acceptance in principle of members to going through the forms one by one, is that correct? A. Actually, can I explain? Q. Is that correct, Mr Cheema, or not? A. No, there was no discussion. It was handed to the secretary and president asked him, you know, 'How many?' Q. A moment ago- HIS HONOUR Q. Just a moment. The president asked him to do what? A. Your Honour, when the secretary started counting the forms, there was another senior member, Dr Akram. Q. Dr Akram? A. Akram. He was reading the names and they both, you know, like Dr Akram was quite upset because people don't even know who they are. And Dr Kirmani said that, 'How many application forms are there?' And Zaheer Shah Khan said, 'Over 200'. And they said, we don't agreed on that 200. Q. Who said that? A. Dr Kirmani, the president at that time. And he said to Wajahat Rana, 'We agreed on only 40'. And what he said, 'Just of them, they're the spouses'. So, I mean, that's where they asked, the job was given to the committee to go through those forms. Q. That's what you have said in your affidavit I think? A. Yes. Q. You said that already in your affidavit? A. Yes, your Honour. PICKLES Q. Consistent with the practice at that time, Mr Cheema, do you recall whether at the next meeting of the association after 21 November 2008 the minutes of the meeting of 21 November 2008 were read? A. Yeah. Q. And do you know whether or not you saw the minutes signed? A. I, actually, I know they're signed. Q. You know they're signed? A Now that I- Q. You know the signatures borne at the bottom of that document comprises the president at the time, Dr Kirmani, and the secretary, Zaheer Shah Khan? A. They seem to be, yeah. Q. And the minutes also show, do they not, that they were proposed by Brother Akram and Brother Shoaib? A. I can't recall that, no. Q. You were at the following meeting, were you not? A. Yeah, I think so. Yep. Q. And if the minutes that had been read out did not reflect what had happened at the previous meeting you would have said so? A. Yes. Q. And you didn't say so, did you? A. Yeah, because may be I didn't hear it. Q. You were still sitting around the table, were you not, at the meeting on 21 November 2008 while the application forms were being gone through and Mr Zaheer Shah Khan was writing a list? A. He was going through only about ten, may be. Something like that. And then after that, president stopped him. And there was no handwritten list produced or written over there. ... Q. You saw a list being written, did you not? A. No, I didn't see him writing list. Q. You didn't see him write a list at all? A. No. Q. Nothing? A. Nothing. Q. A moment ago you said you did see him start to write a list and Dr Kirmani stopped him? A. No. I'm sorry. Actually, that's not what he said. He started counting, reading from the forms names, and he was handing one by one to Dr Akram, who was sitting right next to the president (witness indicated). So, he was reading the name from there. So, possible he cannot write, you know. Like, I didn't see him writing at all on that list. That list was never in the meeting. That's my-" 29Dr Shujaullah Kirmani who presided at the Executive Council meeting gave evidence to the following effect in his affidavit sworn 28 April 2012: "4. I presided over the meeting of the executive committee in November 2008. At the meeting Mr Rana presented to the meeting a bundle of documents and said 'these are about 200 application forms of people who want to become members of the association'. I said to him and the meeting 'Why are there so many' 'It was agreed between us before the election that only the 40 applications will be accepted which were refused by the former president Dr Khan.' Rana said 'these applications include these 40 persons and their spouses and some other applicants'. I said 'I will not accept this and I propose we form a committee of three executive committee members namely Mr Aijaz Khan, Mr Wajahat Rana and Mr Masud Cheema to go through each application and report back to the executive committee'. This proposal was accepted unanimously by the executive committee. At that meeting I do not recall that any resolutions were passed admitting any new applicants to membership of the association. 5. It is the practice of the association that where any new members are approved by the executive committee a resolution would be passed to that effect and the names of the members would be noted on the minutes." 30In cross-examination Dr Kirmani conceded he might have been referring to an earlier meeting of the Executive Council. 31It was in that factual context that the primary judge reached his conclusions. The reasoning of the primary judge 32In considering the reasons given by the primary judge for dismissing the appellants' claim, it is important to keep in mind the bases on which the claim was presented to him. It was not suggested that it was possible to identify 175 people who were approved for membership at the meeting of the Executive Council on 21 November 2008. Rather, the case seemed to be that as none of the 175 (or 186) people on Mr Zaheer Khan's list were refused membership, then it followed that the actions of the Executive Council on that date were sufficient to procure their admission to membership. The way the case was put by the appellants in the Court below was articulated by counsel for the appellants in the following terms: "Yes. So then in relation to the submissions concerning the 21 November 2008 meeting, my learned friend's submissions are predicated upon the requirement of the executive council to have made a decision to approve the applicants. That not being a requirement, the proper question is did the executive council in respect of any application veto those applications. That's the question. So I don't need to prove a resolution or a decision to approve any one member. All I need to demonstrate is that none of those who could be identified whether before or after the meeting by reference to a list were ever vetoed by the executive council even at the 21 November meeting or later because, indeed, if those people were added to the list, the executive council still had power to veto them provided they were not purporting to expel them or, indeed, that those people hadn't otherwise fulfilled the requirements of paying their membership fee, etc. So there was still an opportunity after 21 November for the executive council to say 'no that person was not accepted' and there is no evidence that they did that. ... So the 175 number I submit quite clearly enough was derived after a significant amount of application forms had been gone through, discussed and put into different piles and so to try and dissect those minutes to suggest that the resolution happened first and that the names were discussed and written down afterwards is not the evidence. All of this was a process that was ongoing. ... Well, I don't need to identify the 175 because who were the first 175 is impossible to determine because names were crossed out and new names were entered in. There is no point in time when one could determine the 175. There were 183 ultimately admitted." 33The primary judge first concluded at par [5] that it was the responsibility of the Executive Council to approve candidates for membership and it was a responsibility that could not be delegated except by instrument in writing. It was not contended on appeal that the primary judge erred in reaching this conclusion. As I have pointed out, the power to admit members is implicitly vested in the Executive Council having regard to the provisions of cl 4(4), cl 12(1)(a) and cl 12(1)(b) of the Association's Constitution. 34The primary judge then noted at par [12] that although cl 4 of Constitution addressed the topic of membership, there were a number of matters in respect of which it made no provision. He referred in particular to the absence any provision as to the form of nomination for membership and whether the determination of admission to membership must be formal or informal. The primary judge also noted that cl 4 did not expressly confer power to admit members as distinct from a power to refuse membership. 35His Honour concluded that in these circumstances, the effect of s 19 of the Act was to incorporate into the Association's Constitution Model Rule 3 of the Model Rules that are contained in Schedule 1 to the then Associations Incorporation Regulation 1999. Model Rule 3 makes detailed provision for written nomination forms and for such nomination forms to be forwarded to the committee (in the present case the Executive Council) which must determine whether to approve or reject the nomination. 36His Honour concluded at pars [17]-[18] that once this was recognised the claim must fail, pointing out that all that was relied upon by the appellants was the absence of a refusal to admit any of the nominees to membership. His Honour's conclusion in that context was as follows: "[19] The events which actually occurred on 21 November 2008 illustrate the difficulty confronting the plaintiffs' contention. The Executive Council was presented with a bundle of approximately 250 nomination forms. But there was no determination by the Executive Council of the candidature of any single, named, identifiable person. No individual nomination form was reviewed and approved by it. During and after the meeting, a list was drawn up in circumstances that are now contentious. But there was no credible suggestion that the written list of 186 names actually formed part of the resolution passed at the meeting. It did not do so. The resolution stated: Resolution passed approved (175) and remaining (77) will be considered in March/April 2009 after review Constitution." 37The primary judge referred to the minutes and pointed out that there was no subsequent decision by the Executive Council to approve 175, 183 or 186 new members. He pointed out that Mr Zaheer Khan's list was not a document of the Executive Council and was not made the subject of the resolution. He noted at par [22] that the list referred to 186 persons and contained many crossings-out and alterations. He pointed out that Mr Rana could not reconcile the fact that 175 members were the subject of the resolution whereas Mr Zaheer Khan's list contained the names of 186 nominees. 38His Honour dealt with Mr Zaheer Khan's evidence in the following terms: "[24] Zaheer Shah Khan said that he did not start writing any names on his list until after the resolution by the Executive Council to approve 175 new members. This was towards the end of the meeting. The meeting adjourned for prayers at 9.30pm. Prayers lasted about 30 minutes. The resolution was passed on resumption following the prayers. The meeting then concluded at 10.30pm. It was not possible to complete the list before the end of the meeting. More importantly however, when the resolution was passed, there was no list. There were therefore no individual names of candidates to whom the resolution was capable of being made referable at the time it was passed. Zaheer Shah Khan agreed that he did not show his list to the other members of the Executive council at the meeting. He said it stayed with him as he was preparing it. [25] I accept this evidence of Zaheer Shah Khan but in other respects his evidence lacked plausibility. In his affidavit, he asserted that at the meeting, '160 to 186 were approved for membership'. On the other hand, in the witness box, he was adamant, insisting on a precise recollection that exactly 175 new members were 'proposed and approved'. He seemed quite obviously to be attempting to fit his evidence to the language of the minutes. He added, equally implausibly, that the failure to include this information in his affidavit, was simply an error on his part. When confronted with the proposition that in relation to at least 17 names on his list, those names must have been added after the meeting because their application forms were dated after 21 November, Zaheer Shah Khan's evidence was unconvincing. He appeared to be improvising; denying the obvious and asserting the improbable. I do not accept his evidence that 'The [17] names were given by the committee [at the meeting], added in the list, and the forms arrived late'." 39In these circumstances the primary judge rejected the appellants' claim. The Grounds of Appeal 40The grounds of appeal ultimately relied on were as follows (I have used the numbering contained in the original Notice of Appeal): "A. Whether Model Rule 3 of the Associations Incorporation Regulation 1999 is incorporated into the Constitution of the Association: 3 His Honour erred in law in concluding that by reason of s 19(3) of the 1984 Act, Model Rule 3 should be incorporated into the Constitution of the Association (at paragraph [16]). B. Whether there was substantial compliance with Model Rule 3: 4 Even if it were correct to conclude that Model Rule 3 was incorporated into the Constitution, his Honour erred in law by failing to consider and failing to find that there had been substantial compliance with the rule despite: (a) Tender and acceptance into evidence of the application and nomination forms for all but 3 of the 186 contested members (Exhibit 5); (b) Apparent acceptance of the evidence that the nomination forms were presented at the Executive Council meeting (paragraphs [19], [21]); (c) Tender and acceptance into evidence of the payment of membership fees (Exhibit P); (d) Tender and acceptance into evidence of two membership registers showing the contested members' names on the register (Exhibit L); (e) The unchallenged evidence that the contested members had voted at two consecutive Annual General Meetings of the Association as well as a Special General Meeting. 6 His Honour erred in fact in finding that there had been no decision to approve individual candidates (at paragraph [21]). 7 His Honour erred in law in concluding that compliance with Model Rule 3 required a written list of names to form part of the resolution of the meeting (at paragraphs [19] and [21])." 41At the hearing, senior counsel for the appellants stated that Ground 3 would only be argued to the extent that it incorporated the matters contained in par [2.1] of the appellants' supplementary written submissions dated 22 February 2013. The submissions of the parties 42The appellants submitted that Model Rule 3(1) was not incorporated so as to make nomination or a particular form of nomination a criterion for membership of the Association. They submitted the criteria for membership was set out in Model Rule 2. That rule provided as follows: "A person is qualified to be a member of the association if, but only if: (a) the person is a person referred to in section 15(1)(a), (b) or (c) of the Act and has not ceased to be a member of the association at any time after incorporation of the association under the Act, or (b) the person is a natural person: (i) who has been nominated for membership of the association as provided by rule 3, and (ii) who has been approved for membership of the association by the committee of the association." It is to be noted that Model Rule 2 provides for nomination in accordance with Model Rule 3 and approval by the committee of the association. 43The appellants submitted that cl 4(1) of the Association's Constitution provided the qualifications for membership and the combined operation of cl 4(4) and cl 12 of the Constitution gave the Executive Council the power to grant membership. 44Ground 4 of the Notice of Appeal was only argued in conjunction with Grounds 6 and 7. The appellants submitted that the primary judge made four critical findings in which he overlooked or rejected without reasons important aspects of the evidence. The relevant findings of the primary judge were: first, that no witness suggested the 175 persons referred to in the resolution had been identified at the time of the resolution; second, no individual nomination form was reviewed and approved by the Executive Council; third, there was no determination of the candidature of any single candidate; and fourth, because there was no list when the resolution was passed, there were no individual names of candidates to whom the resolution was capable of referring. 45The appellants contended that in reaching these conclusions the primary judge ignored the evidence of Mr Rana and that of Mr Zaheer Khan to which I have referred above. It was submitted that the applications were considered individually or in a group and only passed through to Mr Zaheer Khan as the Executive Council approved the nominee. They also submitted that the effect of the evidence of Mr Rana was that the process was one of progressive approval of individual applications. They submitted that the minutes were consistent with that process. 46The appellants submitted that it was implicit in the findings of the primary judge that he rejected the respondents' evidence. That is because the primary judge found that the minutes were accurate and the resolution to approve 175 members was passed. 47The appellants submitted that an analysis of the list revealed that all the list entries were numbered. They accepted that the numbering was not probative of the fact that a nominee had lodged an application form by 21 November 2008 because some of the forms were dated after that date. However, they submitted that the list entries up to number 175 was probative of persons being admitted to membership as a result of either having an application form which was considered, or being a person who was specifically nominated and approved as a member at the meeting. 48The appellants acknowledged that some of the sequential numbered application forms dated after 21 November 2008 related to people on the list between numbers 1 and 175. They submitted that this was probative of the fact that an earlier application form had been submitted or, again, that those persons were specifically nominated and approved as members on 21 November 2008. 49At the hearing, senior counsel for the appellants submitted that having regard to the background leading up to the meeting to which I have referred in pars [6]-[7] above, it was inherently unlikely that the Executive Council would approve new members without identifying who they were. He submitted that there being no real contrary evidence to that of Mr Rana and Mr Zaheer Khan concerning the consideration of bundles of forms comprising the list of persons, the appellants had discharged the onus of proving that 175 new members had been approved. He submitted that the alternative to a finding that 175 were approved was that 17 or 18 of those nominees whose application forms post-dated 21 November 2008 were not approved but the balance of the 175 were in fact so approved. 50Senior counsel for the appellants also submitted that it was hard to understand how there could have been a resolution to approve the 175 and defer the 77 unless there had been a physical differentiation between those nominees approved or deferred. He submitted that Mr Zaheer Khan who wrote the list after the resolution wrote the 175 from the forms which had been approved. Senior counsel for the appellants also relied on the fact that the minutes did not record any dissent to the acceptance of any of the nominees for membership. 51Senior counsel for the appellants also referred to a number of application forms which were tendered at the trial. He pointed out that the number of them generally coincided with the number which appeared on Mr Zaheer Khan's list and typically, but not always, had a notation that they were approved. He submitted the reason that the approval date on the forms was not 21 November 2008 was because the approval date was the date upon which receipt for the subscription monies was acknowledged. It should be noted that there were only 14 of these forms in evidence. 52Senior counsel for the appellants conceded that at the time the resolution was passed, there was no list in existence. He explained that the error made by the primary judge was that he concluded that because there was no list in existence at that time, there was no approval of any of the specified nominees. 53The respondents submitted that even if contrary to the finding of the primary judge Model Rule 3 did not apply, it remained the fact that members could only be admitted with the approval of the Executive Council. They submitted that the Executive Council did not make any decision to admit any new members or any group of members. 54The respondents submitted that it was not self-evident that the Executive Council would not approve in principle the admission of 175 members without identifying them. They pointed out that the Constitution stated the minutes were conclusive and submitted the minutes only recorded an in principle approval. 55The respondents pointed out that the primary judge's finding at par [24] that the resolution was passed after evening prayers, that is between 10.00pm and 10.30pm when the meeting closed, was not challenged. They submitted that this was insufficient time to discuss approximately 250 membership applications, accept 175 applications and give Mr Zaheer Khan instructions to prepare the list. 56The respondents submitted that the rejection by the primary judge of that part of Mr Zaheer Khan's evidence was justified. They pointed to the discrepancy in his affidavit where he referred to approval of 160 to 186 new members and his insistence in his oral evidence that 175 were approved; his varying evidence as to when he completed the list; his oral evidence contrary to his affidavit that there was no decision to approve more than two members of one family; and his inability to explain how 17 nominees on his list had application forms postdating 21 November 2008. 57At the hearing, counsel for the respondents submitted that there were two different ways by which it could have been concluded that 175 candidates were approved. He submitted the first was by a reference to a particular bundle of forms and the second by reference to particular candidates who were identified by Mr Zaheer Khan who incorporated them in his list. He submitted that the primary judge came to a contrary conclusion, namely, that the only resolution was to approve 175 members in principle. 58Counsel for the respondents pointed to the fact that 17 of the application forms post-dated the meeting and, therefore, could not have been part of a pile of forms approved in the first manner he suggested. He also pointed to the evidence of Mr Rana in reply which was to the effect that after the resolution was passed, the Executive Council members circulated the list of 175 approved members and passed them to Mr Zaheer Khan who came up with the figure of 186 members. He stated that this was inconsistent with approval by reference to a pile of forms. 59Counsel for the respondents also pointed to the fact that although there was a hypothetical possibility that the Executive Council approved particular nominees after passing the resolution, there was nothing in the minutes to suggest this and it was inconsistent with at least part of the evidence of Mr Zaheer Khan that he did not complete the list at the meeting. He emphasised that there was only half an hour to pass the resolution and approve the list of members and stated that it could not have been done in that time. 60Finally, counsel for the respondents emphasised that the case was being conducted in a manner different to that in the Court below, where it was conceded that 175 nominees could not be specifically identified. Consideration 61The case in this Court was conducted by the appellants on the basis that it was necessary for a nominee for membership to be approved by the Executive Council for admission to membership. 62That was contrary to the basis on which the case was conducted in the Court below where it was stated that it was not necessary to identify the 175 nominees who were admitted to membership and that there was no point in time when one could identify the 175 persons. The primary judge at par [18] expressly proceeded on the basis of this concession. 63Although the primary judge framed his conclusion in the terms of Model Rule 3, his conclusion was that there was no legally binding decision of the Executive Council to admit named individuals. 64It is not necessary in the present case to consider whether Model Rule 3 or for that matter Model Rule 2 was incorporated into the Constitution of the Association. As I indicated earlier, the power to admit members is vested in the Executive Council, that power being implicit in cl 12(1)(a), cl 12(1)(b) and cl 4(4) of the Constitution. The exercise of the power required the approval of nominees. Once it was conceded that the 175 persons purportedly admitted to membership could not be determined (see par [32] above), then it must follow that the primary judge was not in error in rejecting the appellants' claim. 65Further, in my opinion, the same result would have been reached irrespective of this concession. The minutes of the meeting are set out above at par [9]. They record a discussion which took place concerning membership and the approval of admission of 175 members with the remaining 77 applications to be considered subsequently. The minutes record that after the resolution the meeting passed on to a consideration of other matters (plumbing charges). There is nothing in the minutes to suggest that any particular nominees were approved. 66As set out at par [4] above, cl 16(5) of the Association's Constitution provides that minutes once confirmed and then signed by the President are conclusive evidence of a matter set out in them. The evidence of Mr Cheema, set out at par [28] above, was that the minutes were confirmed at the subsequent meeting and signed by the President. 67The effect of a conclusive evidence provision in the constitution of a corporation was considered by Simonds J (as his Lordship then was) in Kerr v John Mottram Ltd [1940] 1 Ch 657. His Lordship held that the minutes in those circumstances were evidence which is not to be displaced and is conclusive as between the parties who are bound by them; in that case shareholders as parties to the contract constituted by the company's articles of association: Kerr v John Mottram Ltd supra at 660. In a similar fashion to s 140 of the Corporations Act 2001 (Cth), the Act and its successor, the Associations Incorporation Act 2009, each contain provisions stating that the association's constitution binds the association and its members to the same effect as if it were a contract between them: s 11 of the Act and s 26 of the Associations Incorporation Act 2009). In these circumstances, the principles set out by Simonds J are equally applicable to the Constitution of the Association. 68Further, the fact that the minutes were confirmed in a subsequent meeting adds weight to their cogency: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522 at [59], [69], [206]. It would have been expected that if the minutes contained an incomplete record of proceedings, they would have been corrected at the subsequent meeting. 69The minutes do not record any approval of individual nominees, either separately or by reference to a bundle of forms presented to the meeting. Nor do they record any instruction given to Mr Zaheer Khan to prepare a list of persons approved, much less confirmation of his list as the persons in fact approved for membership. In these circumstances, the inference which should be drawn from the minutes is that the meeting went no further than approving in principle the admission of 175 members. 70Nor in my opinion does the evidence of Mr Rana and Mr Zaheer Khan lead to a contrary conclusion. I have set out their evidence above. Mr Rana in his first affidavit of 2 June 2012 said that Mr Zaheer Khan recorded the names of the successful nominees in the minute book. Although the minutes of individual meetings were tendered at the hearing, together with a bundle of minutes from meetings which took place in 2010, no minute book containing such a list was tendered. 71Mr Rana identified the list as being Annexure L to Mr Cheema's affidavit of 28 April 2012. No such affidavit was read in the proceedings. However, Mr Cheema deposed in an affidavit sworn 11 July 2012 that he found a document in the records of the Association which he described as containing 186 names with 37 crossed out, whilst in most instances some of the names were re-entered at the foot of the list. There was no evidence given that that document was contained in the minute book. 72In his subsequent affidavit of 19 July 2012 set out at par [12] above, Mr Rana stated that although it was not recorded in the minutes, the Executive Council dictated the approved nominees and Mr Zaheer Khan wrote the list, the total number of new members being 186. As I indicated, the minutes were subsequently confirmed and no amendment was made. Further, Mr Rana did not identify the 175 members so approved. 73I have set out the material part of the cross-examination of Mr Rana at par [14] above. In his cross-examination he suggested there were piles of forms, the piles relating to the nominations being made by various members of the Executive Council. He stated that the Executive Council went through the piles, approving some and deferring others, and as a person was appointed the Secretary wrote his name down on the list. The difficulty with that evidence was that Mr Zaheer Khan said he commenced writing the list after the resolution was passed. 74Mr Rana also stated that he did not see the list. It follows that he did not confirm its accuracy at the meeting. Further he stated that 186 members were approved, not the 175 in the resolution. 75The primary judge did not deal with Mr Rana's evidence in any detail. It was not necessary for him to do so having regard to the concession made. However, when the matters referred to in pars [71]-[74] above are taken into consideration, it does not seem to me that Mr Rana's evidence establishes that 175 particular nominees were approved. 76The evidence in chief of Mr Zaheer Khan was that he prepared the list containing 186 approved nominees after the resolution was passed. I have set out the relevant parts of his cross-examination in par [20] above. It was put to him that there was no vote for individual applicants and he replied, "It was all proposed, approved for 175 people, applications. It's here in my minutes". The minutes did not refer to any individual. He stated that exactly 175 were approved contrary to his affidavit evidence. 77Mr Zaheer Khan submitted in cross-examination that he commenced writing the list after the resolution was passed. He initially said that he had almost completed the list at the conclusion of the meeting. He subsequently stated that it was completed and that when he got to 175 he said he had a few more to do, presumably explaining how the number increased to 186. He acknowledged this was not in the minutes. 78Mr Zaheer Khan also acknowledged that he did not show the list to the Executive Committee. 79Finally, the primary judge rejected Mr Zaheer Khan's evidence to the effect that exactly 175 new members were proposed and approved. The variations in his evidence to which I have referred above, coupled with the inconsistencies identified by the respondents in their written submissions set out at par [56] above, together with the fact that 17 of the application forms by nominees in fact post-dated the meeting, justified the conclusion of the primary judge. The finding was not glaringly improbable or contrary to compelling inferences: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29]. 80In the circumstances, even if the question of whether 175 specific nominees were approved was in issue before the primary judge at the hearing, which it was not, the evidence in my opinion did not establish such approval on the balance of probabilities. 81I would add one matter. The orders sought were effectively for the rectification of the register of the Association. None of the parties said to have been elected to membership were joined in the proceedings and no representative was appointed. It is unfortunate as none of them will be bound by this decision. However, no point was raised in relation to this issue either at the trial or on appeal. Conclusion 82It follows that the appeal should be dismissed with costs. 83MACFARLAN JA: I agree with Bathurst CJ. 84HOEBEN JA: I agree with Bathurst CJ. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2013