Adelaide Islamic Mosque Society of SA Inc v Yousuf - [2017] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ADELAIDE ISLAMIC MOSQUE SOCIETY OF SA INC v YOUSUF
[2017] SADC 27
Judgment of His Honour Auxiliary Judge Clayton
29 March 2017
LANDLORD AND TENANT - TENANCIES OTHER THAN FOR A TERM - TENANCIES AT WILL - DETERMINATION - BY NOTICE
LANDLORD AND TENANT - RENT - GENERALLY
ESTOPPEL
As Imam of the Adelaide Mosque the defendant was permitted to live in the Imam’s house rent free. By letter dated 13 June 2014 the defendant resigned as Imam of the Adelaide Mosque. The plaintiff required him to deliver up possession of the Imam’s house. Although he had made promises that he would deliver up possession the defendant now claims that the persons who represented the plaintiff were unauthorised, that his resignation was never accepted by the plaintiff and the plaintiff is estopped from asserting that he has no right to occupy the house by reason of the fact that he has continued to perform some of the duties of the Imam of the Adelaide Mosque.
Held:
1. The defendant’s resignation as Imam of the Adelaide Mosque by his letter dated 13 June 2014 was effective.
2. The defendant occupied the house pursuant to an oral agreement which created a tenancy at will which was lawfully determined by demand and the defendant must vacate the Imam’s house.
3. There is no estoppel and there is no agreement pursuant to which the defendant can occupy the house.
Associations Incorporation Act 1985 (SA) s 51; Real Property Act 1886 ss 195, 198; Law of Property Act 1936 ss 29, 30, referred to.
Wykes v Samilk Pty Ltd (1998) NSW ConvR 55-871; Kellow-Falkiner Motors Pty Ltd v Nimorakiotakis (2000) Vic ConvR 54-620; Fush v McKendrick & Co Pty Ltd (2004) Vic ConvR 54-686; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582; Moonta Town Corporation v Rodgers (1980) 26 SASR 143, considered.

ADELAIDE ISLAMIC MOSQUE SOCIETY OF SA INC v YOUSUF
[2017] SADC 27

The plaintiff, an incorporated association which I will refer to as “AMISSA”, is the governing body responsible for managing the Adelaide Mosque at 20-28 Little Gilbert Street Adelaide. The plaintiff also owns a residence at 32 Little Gilbert Street Adelaide which is known as the “Imam’s house”.
The Adelaide Mosque was built in 1888 and is heritage listed. It is the oldest major city Mosque in Australia. There is evidence that it has always been known as a peaceful Mosque and it is not affiliated with any particular group.
Traditionally the Imam’s house has been made available to the resident Imam to live in while he holds the appointment. The house is provided free of charge and all expenses including rates and utilities are paid by AMISSA. The evidence for the plaintiff is that there is no written Tenancy Agreement and that the Imam’s right to occupy the house is an oral “gentleman’s” agreement. The arrangement has been in existence for approximately 30 years and is well known to the members of the Adelaide Mosque.
I am satisfied that the plaintiff is the registered proprietor of and responsible for managing the Imam’s house.
These Proceedings
The plaintiff claims that the defendant resigned as the Imam of the Adelaide Mosque on 13 June 2014 and that the defendant has unlawfully refused to deliver up possession of the Imam’s house. It claims that the defendant initially occupied the Imam’s house pursuant to an oral agreement which has been lawfully terminated.
On its face the plaintiff’s case is straightforward. If the defendant had resigned as Imam of the Adelaide Mosque and his right to occupy the Imam’s house was terminated the resolution of this case would be straightforward. However the defences which have been raised by the defendant have given rise to some interesting questions.
The defendant denies that he resigned. He asserts that his letter of resignation was never accepted by the plaintiff. He also asserts that the resignation was not a valid resignation, having been procured by unconscionable conduct on the part of the plaintiff. The defendant disputes the authority of the persons who have acted for the plaintiff in demanding that he vacate the premises. He claims that the plaintiff is estopped from relying on any legal rights it may once have had by reason of the defendant’s letter of resignation of 13 June 2014 and claims that there is “a binding legal agreement between the plaintiff and the defendant pursuant to which the defendant has a right to occupy the Imam’s residence.”
The defendant’s case is that notwithstanding the letter of resignation dated 13 June 2014 he has continued to perform the duties of the Imam of the Adelaide Mosque, with the acquiescence of the plaintiff, and the plaintiff is therefore estopped from disputing his right to occupy the Imam’s house.
The trial was heard pursuant to the order of a judge who ordered an expedited hearing. The parties exchanged pleadings, provided evidence in chief by affidavit and the witnesses were cross-examined.
Because of the wide ranging disputes which have been raised by the defence it is necessary to consider the background to the case.
The Background to the Dispute
The issues which require determination are put into perspective by the evidence of the defendant.
The defendant gave evidence that according to well accepted principles and practices of Islam the Imam of any Mosque is the leader of that Mosque and the person responsible for putting in place and leading prayer on a daily basis. The Imam is required to have an extensive knowledge of the Quran and other Islamic Scriptures and must be able to read and speak Arabic. The Imam is the person who serves as the primary counsellor to the Islamic community and is the person responsible for the organisation and conduct of religious festivals such as Eid and Ramadan. The defendant said:
According to the Hadeth in the books of Al Iraqi and Al Albani, the Imam is a person who must be accepted by the congregation he leads at the Mosque otherwise according to Islamic scripture the congregations’ prayer will not be heard.[1]
[1] Affidavit of Khalid Yousuf [331.4].
The defendant said that irrespective of whether prayers are held in a Mosque there can only be one leader of prayers whom other followers pray behind. The person who leads the prayers is the Imam. He also said that the title Imam is given to those people who have been recognised as spiritual leaders in the Islamic community. The word Imam means leader and once somebody is recognised by the congregation as an Imam they retain that title for the rest of their lives.[2]
[2] Ibid [331.13] - [331.15].
The Constitution of the plaintiff provides that the administration of the affairs of the Society shall be vested in its General Body, Representative Council, Executive Committee and Board of Trustees. The General Body is made up of all members who have joined the Society.[3] It is the supreme body of the Society.[4] The powers of the General Body include the power to appoint a qualified and suitable person as the Imam of the Mosque.
[3] Constitution of AMISSA cl 8.
[4] Ibid cl 9.
The defendant gave evidence that he has been a believer of the Islamic faith all of his life and has completed four years of university level Islamic studies in Egypt. He has studied under scholars at mosques in Egypt, Saudi Arabia, Yemen, Ethiopia and Somalia. He was an assistant Imam for four years and was the Imam of the Marion Mosque for about one year until he resigned in late 1996 or early 1997. After that he was the Imam of the Adelaide Mosque between early 1997 to October 1998 and then from 2001.
The defendant said that he has read widely and maintains an active interest in and up-to-date knowledge of the various translations of the Quran. He is “Hafiz” in the Quran which means that he is able to recite the entire Quran by memory. He has been a teacher at Islamic schools since 1990.
The defendant first moved into the Imam’s house in about 1994. The house was then owned by the Islamic Society of South Australia (“ISSA”) and the defendant was the Imam of the Marion Mosque. He paid rent of about $50 per week. The defendant vacated the house at the request of ISSA in 1997.
After resigning as the Imam of the Marion Mosque the defendant returned to pray daily at the Adelaide Mosque. When another Imam, Iman Hadbah, was appointed the defendant continued residing in the Imam’s house paying rent and for an 11 month period he translated each of the Friday noon sermons for Imam Hadbah, who did not speak English, and covered Iman Hadbah’s position on his day off. He also continued to conduct weekend classes and counselling and would usually open the Mosque and lead the morning prayers each day.[5]
[5] Affidavit of Khalid Yousuf [63]-[66].
When Imam Hadbah resigned in early 1997 the defendant was invited to be Imam of the Adelaide Mosque and was told that if he agreed he would be permitted to continue to reside at the Imam’s house rent-free.[6] The defendant accepted the offer and acted as Imam of the Adelaide Mosque from early 1997 until October 1998. He continued to reside in the Imam’s house without paying rent.
[6] Ibid [75].
A few months after his appointment the defendant was requested to pay rent to ISSA. The executive of AMISSA told him to ignore the request and during the course of the events which followed Mr Talavanic and Mr Ashraf Choudhry of the plaintiff told him that if he agreed to continue in the role of Imam of the Adelaide Mosque he could live in the Adelaide Mosque office of AMISSA instead of the Imam’s house. He accepted that offer and moved his residence into the office. The Imam’s house was then occupied by other persons.
In 1998 the defendants teaching commitments at an Islamic school increased and he asked AMISSA to appoint a new Imam of the Adelaide Mosque. The defendant had been Imam of the Adelaide Mosque for one year and 10 months. In late 1998 or early 1999 the executive committee announced that they had appointed Imam Ensar to be Imam of the Adelaide Mosque. Between 1990 and 2001 the defendant continued to work as a teacher at the school and once again acted in the role of assistant Imam to Imam Ensar. By agreement with AMISSA the defendant continued to reside in the AMISSA office at the Mosque and he acted as the caretaker responsible for opening and closing the Mosque, maintenance and running weekend classes as well as acting as Assistant Imam.
In about May 2001 Imam Ensar resigned as Imam of the Adelaide Mosque. About 2 months later the defendant was advised by officers of the plaintiff that there was to be a meeting regarding the appointment of a new Imam of the Adelaide Mosque and they wanted him to attend.[7] He did attend. Between the departure of Imam Ensar and the meeting the defendant had temporarily filled the role of Imam of the Adelaide Mosque.
[7] Ibid [96].
At the meeting the president (Mr Talavanic) asked the defendant whether he would agree to become the full-time Imam of the Adelaide Mosque.[8] The defendant had reservations about his ability to carry out the Friday noon sermon because of his work at the school and the President said that the plaintiff would pay for somebody else to conduct the Friday noon sermon.[9] On that basis the defendant agreed to be the full-time Imam of the Adelaide Mosque.
[8] Ibid [100].
[9] Ibid [105].
After several weeks the President and Secretary of the plaintiff approached the defendant again and stated that the Imam whom they had appointed to give the Friday sermons was not giving appropriate sermons in light of the events of September 11 in the United States of America and they asked the defendant whether he would ask the school to give him time off on Fridays so that he could give the Friday noon sermon. He did that and obtained approval.[10] The defendant then delivered the Friday noon sermons.
[10] Ibid [109] – [110].
A short time later, in about January 2002, the secretary of ISSA attended at the Adelaide Mosque and after praying with the defendant handed him the keys to the Imam’s house.[11] The defendant already had permission from AMISSA to reside in the Imam’s house. He said that he spent about 2 months painting and renovating the Imam’s residence with the help of another person.
[11] Ibid [112] – [113].
Most of the materials for the renovation were paid for by AMISSA although some were paid for by the defendant himself.[12]
[12] Ibid [116].
Once the renovations had been completed the defendant moved into the Imam’s house. He resided in the Imam’s house continuously from January 2002 until he gave a letter of resignation in June 2014. During that period the defendant acted continuously in the role of Imam of the Adelaide Mosque.[13]
[13] Ibid [120].
In 2003 the President of the plaintiff told the defendant that AMISSA had held a meeting and set his pay at $100 per week with back pay to the time when he commenced as Imam in 2001. The weekly payments were not made until the defendant received a lump sum representing back pay in about June 2014.
In late 2013 or early 2014 the chair of the School at which the defendant was employed put pressure on the defendant to resign as Imam of the Adelaide Mosque.[14] At the same time the defendant had repeated approaches from Mr Dawood Choudhry and Mr Mohammad Farid Ismail to leave the college and work exclusively as the Imam of the Adelaide Mosque for a full salary although no firm offer was ever made.
[14] Ibid [130].
The evidence establishes that the plaintiff first became aware of the prospect of the defendant resigning from the office of Imam when the defendant himself raised with Mr Ismail, the Vice President, and later with Mr Ashraf Choudhry, the President, the situation he was being placed in by his employer which required him to work 5 days a week including Fridays when he had been attending to the Friday prayers at the Mosque. There is no evidence that the plaintiff had contemplated the defendant’s resignation until shortly before he actually resigned or that the plaintiff took steps to force the defendant to resign.
In an email on 10 June 2014 Ashraf Choudhry advised third parties interested in the Halal certification by AMISSA:
I regret to inform you that Hafiz Khalid is a teacher in local Islamic school as well as now historical Mosque Imam. He is pressurised by his school controlling body to keep one job. He rang me on the 8^th. Instant to find another Imam because he preferred to teaching job rather than the Imam job. We are already looking for a new Imam. We will forward you his qualifications as soon as we appoint some suitable Imam.[15]
[15] Plaintiff’s Tender Book 149.
At this time ISSA and AMISSA were in competition in the area of Halal meat production and certification.[16]
[16] Affidavit of Khalid Yousuf [133].
The defendant gave evidence that Farid Ismail, the Vice President of AMISSA and the Halal supervisor, told him that he had recently returned from a conference overseas and that representatives of Asian and Middle Eastern countries had enquired who was involved in the Halal meat slaughter process and who was overseeing the slaughter to ensure meat for export complied with Halal requirements.[17] Farid Ismail told him that he had informed “representatives of various countries” that as the Imam of the Adelaide Mosque the defendant was responsible for overseeing the Halal slaughter process.[18]
[17] Ibid [137].
[18] Ibid [139].
A few weeks later Dawood Choudhry told the defendant that in Singapore and Indonesia meat importers had enquired of the Executive Committee of AMISSA who was doing the Halal meat certification, who the Imam of the Adelaide Mosque was, and whether the Imam of the Mosque was involved in the supervision of the slaughter.[19] He told the defendant that forms had to be completed giving the defendant’s personal information including information as to where he had undertaken his Islamic studies, how he knew what was required for the Halal slaughter of animals, and confirming that he oversaw the slaughter of animals to ensure that the slaughter complied with the rules of Halal.[20] The defendant was asked whether he would be prepared to sign and complete the forms with that information.
[19] Ibid [140].
[20] Ibid [141].
The defendant said that he immediately advised that he would not be prepared to do so for two reasons. First, he had never overseen any slaughter of animals and secondly, he had never been involved in the process of animal slaughter. The defendant said that if he completed the forms the plaintiff would be representing him as being involved with something that he was not in fact involved with. He also raised additional concerns which had been raised with him.[21]
[21] Ibid [142] – [146].
The defendant said that Mr Choudhry was visibly upset at his response. The defendant said he could not sign the documentation as he was not overseeing the process and the defendant suggested that Mr Choudhry find another Imam to fill out and sign the documentation. Mr Choudhry continued to press the defendant.[22]
[22] Ibid [147] – [150].
In about early May 2014 the defendant was asked to attend a meeting of the Executive Committee and Board of Trustees of the plaintiff. The defendant was advised that he was entitled to back pay from when he started work in 2001 at $100 per week. The defendant then raised the fact that the Imam’s house needed restoration work. It was suggested that the defendant could live in a storeroom on a property behind the Mosque while the renovations took place. Then the matter of the forms related to Halal certification was raised. The defendant felt that pressure was being put on him to complete the forms and he refused to commit himself to completing the forms because he had never overseen the slaughter of Halal meat.[23]
[23] Ibid [156] – [168].
The defendant said that about 2 weeks later he was again approached about signing the forms and he refused.[24] At that time there was reference to the fact that the school was putting pressure on the defendant to stop being Imam of the Adelaide Mosque and in particular to stop delivering the Friday noon sermon. The defendant was told that if he left the school the plaintiff would review his salary although the plaintiff could not match what he was paid at the school. The defendant’s response was that it was difficult for him to trust people who had been unable to pay $100 per week to pay a full-time salary.[25]
[24] Ibid [172].
[25] Ibid [172] – [175].
About a fortnight later, in about early June 2014, the defendant was again asked if he had decided to fill out the forms and whether he was going to stop work at the school. The defendant said that he told Dawood Choudhry that he could not in good conscience fill out the forms and that he could not leave the school.[26]
[26] Ibid [177] – [179].
The defendant said that Mr Choudhry told him that even if he was not going to leave the school the Executive Committee needed him to fill out the forms as he was still the Imam of the Adelaide Mosque. He said that he told Mr Choudhry that he could not do that and if the Executive Committee was going to force him to sign the form he would have no choice other than to resign. Mr Choudhry replied that even if the defendant resigned he would still be the Imam of the Adelaide Mosque until they found another Imam of the Adelaide Mosque and he needed to fill out the form.[27] The defendant said that he told Mr Choudhry that he would not do so because he felt his name would be used even if he resigned.[28] The defendant said that after a long discussion Mr Choudhry left in an “unhappy state”.[29]
[27] Ibid [183].
[28] Ibid [184].
[29] Ibid [185].

About one week later Farid Ismail asked whether the defendant was going to choose the school or choose the Mosque. The defendant said that he told Mr Ismail that he had already told Mr Choudhry that he could not stop working at the school and survive as he would have no income and he needed to support his family and himself. The defendant said that Mr Ismail said that the forms had to be filled out by the full-time Imam at the Mosque, whoever that was going to be.[30] At the end of the discussion Mr Ismail told the defendant that he had to choose between the school and the Mosque and the defendant replied that he could not choose other than to keep his paid work at the school and Mr Ismail said that he had to tell the Executive Committee to find another Imam.[31]
[30] Ibid [187] – [190].
[31] Ibid [192] – [193].
Mr Dawood Choudhry gave evidence that the defendant said that he would provide his qualifications to the plaintiff but never did. He said that the defendant never refused to provide his qualifications but simply never provided them.
The evidence establishes that the Halal certification of food was the source of dissension between the parties. There is no evidence of any significant disagreement between the parties up until that time.
In his affidavit sworn 15 September 2016 Mr Ismail described his conversation the defendant in the following terms:
The defendant explained to me that the chairperson of the board of the Islamic College… had now asked him to choose between his duties as Imam of the Adelaide Mosque and his full-time employment as a teacher at Islamic College. In consequence of his duties at the Adelaide Mosque, the defendant had been required to take time off from his employment at the College to perform his religious duties as Imam, only on Fridays.[32]
[32] Affidavit of Mohd Farid Ismail in Plaintiff’s Tender Book 114 [2].
Mr Ismail said that as the defendant had not accepted the offer of reimbursement he then, on the following Friday, offered the defendant a full-time position as Imam at the Adelaide Mosque.[33]
[33] Ibid [5].
About one week later the defendant had a conversation with Mr Ashraf Choudhry who told him that Mr Ismail had told Mr Choudhry about the conversation a week earlier. The defendant said that he felt as though Mr Ismail and others had been putting pressure on him to make a choice between the school and the Adelaide Mosque. He said that he could not choose the Mosque because the only salary he had to live off and support his family was salary from the school. He said that if he was forced to choose he could not choose to be Imam of the Adelaide Mosque because he would not be paid. Mr Choudhry then asked the defendant to put his resignation in writing and the defendant replied “Well I have no choice; I will put it in writing then” and the defendant left the office.[34]
[34] Affidavit of Khalid Yousuf [194] – [203].
The defendant said that after his conversation with Mr Choudhry he considered that he had no option but to resign as he could not live or support his family overseas without an income. He prepared two letters and gave them to Mr Ismail sometime before the Friday of that week. He asked Mr Ismail to pass the letters to Mr Choudhry. The letters were unsigned. One was an offer to resign and continue as Imam until another Imam was found and the other letter was an immediate resignation. The defendant said that he told Mr Ismail that the Executive Committee could choose whether they wanted him to stay temporarily or go. Mr Ismail undertook to pass the letters onto the President.[35]
[35] Ibid [204] – [210].
The email which Ashraf Choudhry sent on 10 June 2014 is corroboration of the problem which the defendant had at his school. I find that the defendant chose to continue working at the school and to resign as Imam of the Adelaide Mosque. I find that the resignation was not consequential upon the dispute about Halal certification and was not consequential upon any undue pressure which the plaintiff placed upon the defendant.
I find that the reason for the defendant’s resignation in June 2014 was to devote all his time to the school. There were discussions about Halal certification and an appointment as full-time Imam but the evidence establishes that the real reason for the defendant’s decision was his dependency upon the income from the school.
On the Friday of that week, before the Friday sermon, the defendant met with Mr Choudhry in the offices of the plaintiff. Mr Choudhry said that he had received the two unsigned letters. The defendant asked which letter Mr Choudhry wanted him to sign and Mr Choudhry said that he wanted the defendant to sign the one which did not contain an offer to continue in the role of Imam of the Adelaide until a new Imam was found. Mr Choudhry handed the letter to the defendant which he signed and handed back. The letter was signed on Friday, 13 June 2014. During the conversation the defendant suggested to Mr Choudhry that if he wanted to replace the defendant with another full-time Imam he should consider Imam Ensar and Mr Choudhry replied “Don’t you worry who we are going to employ”. The defendant then left the office.[36]
[36] Ibid [211] – [222].
The defendant said that while he was in the office there was no discussion as to what was to happen with the Imam’s house and whether the defendant was to continue to reside there or not. The defendant said he assumed that he was not to continue to reside in the house because his role as Imam of the Adelaide Mosque would end once his letter of resignation had been formally accepted by AMISSA in writing.[37]
[37] Ibid [223] – [224].
After leading the Friday prayer on that day the defendant spoke to the congregation from the minbar. He told the congregation that he intended to resign from giving the Friday sermons and that he did not want to discuss his reasons. He said that he did not want to discuss any issues or politics within the Mosque.[38]
[38] Ibid [126] – [227].
The defendant gave evidence that from June 2014 until about August 2015 he never received any response from the plaintiff regarding his letter and that he never received any request to vacate the Imam’s residence and that nobody ever asked him to hand over the keys to the Mosque.[39]
[39] Ibid [230] – [232].
Mr Dawood Ashraf Choudhry has deposed in his third affidavit sworn 15 September 2015:
5. Subsequent to the time of that resignation the defendant did not remove himself from the Imam’s house despite having been formally requested by the society to do so.
6. On various occasions subsequent to the date of the defendants resignation as Imam, I had conversation with him in which I enquired on behalf of the Society and its Executive Committee when he was in fact going to, as he had previously promised, depart from the Imam’s house at 32 Little Gilbert Street Adelaide. On each of the occasions of these conversations the defendant prevaricated and advised me that his departure from the Imam’s house would take place “soon.”[40]
[40] Third Affidavit of Dawood Ashraf Choudhry in Plaintiff’s Tender Book 45 [5] – [6].
Mr Choudhry said that on about 30 October 2015 he attended a meeting at the office of the Adelaide Mosque at which the defendant requested a further 2 weeks to vacate the property. The Hon Secretary offered to extend that to 3 weeks as a gesture of goodwill.[41]
[41] Ibid 45 [7].
The defendant claims that since 13 August 2014 he has continued to perform the duties of the Imam of the Adelaide Mosque, with the exception of the Friday prayer.
The defendant gave evidence that no one has sought to establish or lead prayers at the Mosque or to conduct marriages and funerals as the Imam of the Adelaide Mosque, that no one has arrived in the mornings to open the Mosque or in the evening to lock the Mosque overnight and that no one sought to fill the role of Imam of the Adelaide Mosque.[42]
[42] Affidavit of Khalid Yousuf [235].
The defendant gave evidence that between June 2014 and August 2015 he continued to act in the role of full-time Imam of the Adelaide Mosque in all respects except for delivery of the Friday noon sermon. He continued to open the Mosque in the morning and close it in the evening and to lead prayers at least three times a day during school terms and five times a day during the school holidays as he had done previously. He said that he also continued to perform funeral ceremonies and marriages and attend to school visits.[43]
[43] Ibid [236] – [241].
The defendant said that on many occasions when he led Friday afternoon prayers members of the Executive Committee were included in the congregation. He said that he has continued to receive referrals from people who needed counselling including referrals from Farid Ismail and Dawood Choudhry. He said that he continued to use the offices of the plaintiff to conduct the counselling sessions and that he had keys to the office which no one asked him to return. The plaintiff said:
With the exception of the Friday noon service which Imam Ensar was taking, there was no significant difference in my role as Imam of the Adelaide Mosque before or after by signing the letter in June 2014.[44]
[44] Ibid [247].
The defendant continued to work at the school until late 2015 when he was dismissed. Thereafter for a time he had no source of income. After paying the lump sum for back pay in about May or June 2014 the plaintiff made no further payments of $100 per week to the defendant.
The defendant said that the first request he received to vacate the Imam’s house was in about August 2015 at which time he had continued in his role as Imam of the Adelaide Mosque for over a year since he signed the letter on 13 June 2014.[45] He said that Farid Ismail told him that the Executive Committee wanted him to move out so that they could renovate the house and fix problems that the defendant had raised earlier. He said that he told Farid Ismail that he would find a place to relocate to so that the plaintiff could carry out the renovations.[46] Sometime later Farid Ismail enquired when the defendant was going to leave for the renovations and he replied that he was making arrangements.[47]
[45] Ibid [263] – [266].
[46] Ibid [267].
[47] Ibid [268].
The defendant said that a short time afterwards he received an unsigned letter on the plaintiffs letterhead advising that he urgently needed to vacate the Imam’s house. He has not been able to find his copy of the letter. After receiving the letter he rented a container to store his belongings.[48] The defendant said that he then typed a letter to the plaintiff to which he attached the invoice for the container and advised that he was in the process of looking for a flat with a view to leaving the Imam’s residence.[49] About one month after that the defendant rented a unit in Blair Athol for about six months from October 2015 but he never moved there.[50]
[48] Ibid [269] – [270].
[49] Ibid [271].
[50] Ibid [272] – [273].
The document at page 12 of the plaintiff’s tender book is a copy of a letter dated 19 December 2015 from Mr Ashraf Choudhry, the President of the plaintiff, to the defendant. Presumably that is the letter which the defendant could not find. Relevant passages of the letter state:
We are very upset to know your unwanted and non-Islamic behaviour to vacate the Islamic Society house at 32-Little Gilbert Street Adelaide, which you are occupying illegally. This house is called Imam’s house and you have resigned as Imam of this Mosque in writing since 13-6-2014 (One and a half year ago) since then you are not fulfilling your any promise to vacate the Imam house.
You promised to vacate it in two weeks when the committee members talk to you in the Mosque. The members gave you three weeks but in vain. You told me you have hired a unit where you have shifted your most of the baggage. You requested me to give you another week when you rang on last Thursday of November not on the immediate following Sunday but Sunday next 6-12 2015 (unfulfilled promise)
We requested our Imam Ensar to contact you to avoid trouble but you are playing game with him also. He let us know you are asking for another two weeks which is not acceptable to us. We offered you alternate place in Logan street Society property to store your stuff you refused. We have no option left but to take necessary legal action to get the Mosque Imam house vacated occupied illegally by you. If we ring you no answer, if we leave message no response.
You could call yourself IMAM (religious leader) not fulfilling your promises which is drastically un-Islamic behaviour.
Please remove your stuff immediately and hand over the key of the Imam’s house illegally occupied by you.
We don’t want to finish our long-time friendship in bad note but you don’t care.
The defendant said that he formed the view that the reason for the request that he leave the Imam’s house was not so that renovation works could be carried out but rather to terminate his role as Imam of the Adelaide Mosque. He slept at the Blair Athol flat for less than one week over a period of 7 months. He said that he left the Blair Athol unit:
… because I was continuing with the position in duties of Imam of the Adelaide Mosque, and but for asking me to leave the Imam residence, all my functions and duties as Imam of the Adelaide Mosque were unchanged.[51]
[51] Ibid [277].
The plaintiff’s case is that the defendant was asked to leave the Imam’s house because he was no longer the Imam and he no longer had the right to reside in the house. I do not accept the defendant’s evidence that he was requested to vacate the house so that renovation work could be carried out. Mr Choudhry’s letter of 19 December 2015 makes that clear. The plaintiff’s position was that the defendant had resigned as Imam of the Adelaide Mosque and the plaintiff wanted him to vacate the Imam’s house.
In his affidavit Mr Ismail said that subsequent to the defendant announcing his resignation to the congregation he had conversations with the defendant from time to time in which he specifically asked him when he was going to vacate the premises at 32 Little Gilbert Street Adelaide.[52] He said no firm answer to his enquiries was ever provided by the defendant who consistently promised that he would vacate the premises in a few weeks’ time but would then extend the original time to vacate.[53] The dates of those discussions is not disclosed. I accept the evidence of Mr Ismail.
[52] Affidavit of Mohd Farid Ismail in Plaintiff’s Tender Book 116 [10].
[53] Ibid 116 [11].
The defendant said that he continued to perform his duties as Imam of the Adelaide Mosque between November 2015 and January 2016. He continued to lead the congregation including members of the Executive Committee in prayers.[54]
[54] Affidavit of Khalid Yousuf [278] – [279].
The President’s letter stated that the defendant had resigned as Imam of the Mosque and that the defendant was not fulfilling his promises to vacate the house. I accept the accuracy of the allegations made in the letter which were not answered by the defendant. In particular at that time the defendant never asserted that his resignation was not valid or that he had an entitlement to occupy the house. His failure to answer the President’s assertions is inconsistent with his present case. The letter also puts into perspective the actions of the defendant in performing some of the functions of the Imam of the Adelaide Mosque subsequent to the receipt of the letter. It should have been clear to the defendant at least from the time he received that letter that notwithstanding anything that he may have done he was not the Imam of the Adelaide Mosque.
There is no dispute that the defendant has continued to perform some of the duties of the Imam of the Adelaide Mosque. As to that the plaintiff’s written submission is:
347. Firstly the defendant has continued to perform the duties of Imam – not in genuine reliance on some form of inducement or acquiescence on the part of the Society but through sheer defiance and bloody-mindedness in spite of the Society’s opposition – because he perceives that he has the support of the broader ‘congregation’ outside the membership of the Society. The defendant should have been under no doubt that the Society has accepted his resignation and appointed a new Imam and does not wish him to continue. If the resignation is not enough, the subsequent appointment of a new Imam is a constructive dismissal of the defendant. His term of service has well and truly expired.
348. Secondly, the defendant has suffered no detriment by continuing to perform the duties of Imam in the time that he has done so because he has had the benefit of rent-free accommodation during all this time – in other words the Society has in fact provided him with the benefit promised against its own will…[55]
[55] Plaintiff’s Written Submissions 66 [347] – [348].
I find that the defendant should have been under no doubt that the plaintiff had accepted his resignation and that with one or two minor exceptions, which were identified in the evidence, the plaintiff did not request the defendant to perform the duties of Imam.
I find that having resigned by his letter of 13 June 2014 it was not open to the defendant to unilaterally assume the appointment as Imam of the Adelaide Mosque. There is no evidence that the plaintiff did anything to reappoint the defendant as Imam subsequent to his resignation. The fact that it did not object to the defendant performing some of the duties of the Imam after 13 June 2014 did not constitute his reappointment as Imam.
The defendant said that between November 2015 and January 2016 he received a number of requests to leave the Imam’s residence.[56] The defendant acknowledged that he indicated on several occasions that he would comply with the requests but wanted more time.[57] He said that he did that because he did not want to cause confrontation with the plaintiff and said:
At the same time I felt that the committee had tricked me when I had continued in the role of Imam of the Adelaide Mosque into renting the Blair Athol premises, and that they were trying to break their agreement with me and say I resigned.[58]
[56] Affidavit of Khalid Yousuf [280].
[57] Ibid [281].
[58] Ibid [282].
Those indications by the defendant that he would comply with the requests to vacate the Imam’s residence are inconsistent with the defendant’s present case. There is no evidence that the committee of the plaintiff tricked the defendant in any way.
On 29 and 31 December 2015 the plaintiff attempted to gain possession of the Imam’s house. On 29 December the defendant received a message from Mr Kaleem Ullah advising that the executive wanted him to vacate the Imam’s house to which the defendant responded advising that he had commenced proceedings in the South Australian Tenancy Tribunal.[59] The response of the defendant is significant because it provides insight into the position of the defendant at that time. Relevant passages of the message read:
All these moves indicate that the committee members are just interested in fulfilling their own ambitions and not interested in meeting my demands or rights… You will be contacted by the tribunal for the hearing… In the meantime I am doing the committee a favour by letting you know that till the tribunal decides, I have to call the police for any attempt to change the locks as it is a trespass. It is a trespass because I still live in 32 Little Gilbert Street. My contact and address details indicate so.[60]
[59] Ibid [283] – [285].
[60] Defendant’s Tender Book (Exhibit YS-04) 52-54.
That was the first intimation by the defendant that he would not vacate the Imam’s house in the way that he had previously promised.
The Defendant’s Case
Counsel for the defendant has submitted that there are four primary reasons why the plaintiff’s claim should be dismissed namely:
A. The persons who claim to be representatives of the plaintiff by reason of them being members of the executive committee were not validly appointed and had no authority to require the defendant to vacate the premises.
B. The plaintiff by its conduct is estopped from relying upon any legal rights it may once have had by reason of the letter of resignation dated 13 June 2014 and/or any announcement at the Mosque on 15 June 2014.
C. There is an agreement between the parties pursuant to which the defendant has a right in personam to occupy the Imam’s house. The resignation by the defendant as Imam of the Adelaide Mosque was not a valid resignation but was procured by unconscionable conduct on the part of the plaintiff.
D. The defendant has shown cause as to why he ought not be required to vacate the Imam’s house within the meaning of that expression under section 198 of the Real Property Act.[61]
[61] Defendant’s Written Submissions 2 [1].
The defendant’s argument that the representatives of the plaintiff were not validly appointed

The defendant argued that the term of office for the Executive Committee is two years, no valid AGM has been held since 2012 and there is therefore no validly elected Executive Committee.
The evidence relied upon by the defendant is confusing but I am not satisfied that there has not been a valid Annual General Meeting of the plaintiff since 2012.The plaintiff relies upon minutes of meetings in 2015 and 2016. The plaintiff has the benefit of the statutory presumption in section 51 of the Associations Incorporation Act 1985. The defendant argued that the minutes are not in the form contemplated by section 51. In my opinion it is not necessary to resolve this dispute. I find that despite any irregularity in their form the documents which have been produced are an accurate record of the holding of meetings.
The defendant has not established the lack of a quorum at any relevant meeting.
When it is distilled down the defendant’s argument is that even if the defendant did not have a right to occupy the Imam’s house there was and is at the present time no person who could lawfully demand possession of the Imam’s house and the defendant can continue to occupy the premises.
The defendant has not satisfied me that any relevant act on behalf of the plaintiff was performed by a person who had no authority. Counsel for the plaintiff referred to Halsbury’s Laws of England (5th ed.) Vol 24 Corporations [355][62] where the following passage appears:
An office cannot said to be vacant when a person is in actual exercise of the office, even though under irregular appointment, and it will be necessary for the occupier to be regularly removed from the office, before it can be refilled… A person de facto in possession of an office is presumed to be rightly in possession until the contrary is established by due course of law…
[62] Plaintiff’s Written Submissions 67.
Counsel also referred to Warren’s Select Cases & Other Authorities on the Law of Private Corporations (1909)[63] which was referred to as a United States text which discusses principles of English and American law interchangeably. Counsel referred to the following passage:
If the officers selected are ineligible or are elected irregularly or illegally, but are allowed by the proprietors of the corporation to take control of its property, and to exercise its functions and powers, they become officers defacto, and as such may act for and bind the corporation. An officer defacto is one who has the reputation of being the officer he assumes to be and yet is not a good officer in point of law. From a very early time it has been held that the acts of defacto officers are binding upon the corporation until they are lawfully ousted, especially so far as their acts create rights in favour of third parties.[64]
[63] Ibid 68.
[64] Ibid 68.
While that passage is directed to the position of the defacto officer, vis-a-vis the corporation, there is no reason why the same principle should not apply vis-a-vis defacto officers and to third parties.
It is significant that the defendant is not a member of the plaintiff association and therefore lacks standing to object to any non-compliance with the rules of the plaintiff association.
The defendant’s case is that if the persons whose actions are challenged had been validly elected as officers of the plaintiff at some time their appointments had expired at the end of two years. I find that if their appointments had expired those persons continued to hold office and had authority to act on behalf of the plaintiff until such time as their successors were appointed. I accept the submission of the plaintiff’s counsel that while the office bearers remain in power as de facto officers, their acts are valid.[65] If that was not the case a corporation which failed to elect new officers prior to the expiry of the term of the current officers would be rendered incapable of acting.
[65] Ibid 70 [356].
If the persons whose conduct is complained of did not or do not hold the positions in the plaintiff association which they claim I find that they were nevertheless the agents of the plaintiff association for the purpose of taking proceedings to recover possession of the Imam’s house
I reject the argument that the demand for possession and the commencement of these proceedings was without authority.
I note in passing that the persons whom the defendant asserts had no authority to represent the plaintiff for the purpose of regaining possession were the same persons whom the defendant dealt with in connection with his own position.
The Alleged Estoppel
This argument was presented in the context of proprietary estoppel but expanded to include other claims.
The defendant does not rely upon any representation made by the plaintiff. Nor does the defendant rely upon work performed on the premises by the defendant in response to a promise by the plaintiff; but the defendant asserts that by acquiescing in the defendant’s performance of functions of the Imam the plaintiff is estopped from denying the defendant’s right to occupy the Imam’s house.
It is necessary to draw a distinction between the appointment of the defendant as Imam of the Adelaide Mosque on the one hand and the right of the defendant to occupy the Imam’s house on the other. The evidence does establish that the defendant had been permitted to reside at the Imam’s house because he was fulfilling the function of Imam of the Adelaide Mosque, but it does not follow that the Imam had an enforceable entitlement to reside in the Imam’s house because he was fulfilling the duties of the Imam. The appointment as Imam of the Adelaide Mosque and the occupancy of the Imam’s house were separate matters.
I find that the plaintiff occupied the Imam’s house pursuant to an oral contract and was a tenant at will.
I find that the defendant did resign as the Imam of the Adelaide Mosque by his letter of 13 June 2014. The resignation was confirmed by the statement which the defendant made to the congregation from the Minbar. There was no need for the plaintiff to formally accept the letter of resignation. The circumstances leading up to the execution and delivery of the letter are relevant in this context. The plaintiff has done nothing to revoke the resignation or to reappoint the defendant as Imam of the Adelaide Mosque.
I find that the plaintiff had on many occasions requested that the defendant give up possession of the Imam’s house.
In his third affidavit sworn 15 September 2016 Dawood Ashraf Choudhry deposed that on various occasions subsequent to the defendants resignation as Imam he had conversations with the defendant in which Mr Choudhry enquired on behalf of the plaintiff when the defendant was going to vacate the Imam’s house. Mr Choudhry deposed that on each of the occasions the defendant prevaricated and advised him that his departure from the Imam’s house would take place “soon”.[66] I accept that evidence.
[66] Third Affidavit of Dawood Ashraf Choudhry in Plaintiff’s Tender Book 45 [6].
Mr Choudhry deposed to a conversation between the defendant and officers of the plaintiff on or about 30 October 2015 during which the defendant requested a further 2 weeks to vacate the property and Mr Haq Nawaz, the Honorary Secretary of the plaintiff offered to extend the period to three weeks as a gesture of goodwill.[67]
[67] Ibid 45 [7].
In his affidavit the defendant acknowledged that in around August 2015 Farid Ismail told him that the Executive Committee wanted him to move out of the Imam’s house so that they could carry out renovations. In his affidavit the defendant acknowledged that between November 2015 and January 2016 he received a number of requests to vacate the Imam’s house and that on several indications he indicated that he would comply with the requests but wanted more time.[68] At that time the defendant never asserted that he was entitled to live in the Imam’s house.
[68] Affidavit of Khalid Yousuf [280] – [281].
As well as going to the question of whether the plaintiff had sought to recover possession of the house that evidence also contains an acknowledgement by the defendant that he had resigned as Imam.
On 31 December 2015 Mr Choudhry arranged for a locksmith to attend at the Imam’s house together with police officers. The defendant acknowledged that on 29 December and 31 December 2015 there were attempts to have him vacate the Imam’s residence. I have already referred to the exchange of text messages.
The defendant said that in early January 2016 there was a meeting at the Adelaide Mosque at which he was present where Ashraf Choudhry held up the letter and said to the congregation that the defendant had resigned.[69] It cannot be said that as at January 2016 the plaintiff was accepting the defendant as the Imam of the Adelaide Mosque.
[69] Ibid [291].
Even if the plaintiff did acquiesce in the performance by the defendant of the functions of the Imam of the Adelaide Mosque the defendant has not identified any representation by the plaintiff that states or infers that the defendant could continue to reside in the Imam’s house if he performed some or all of the functions of the Imam. The defendant’s decision to carry out some of the duties of the Imam was made by the defendant alone without any encouragement from the plaintiff.
A most significant fact is that while the defendant unilaterally decided to carry out some of the duties of Imam of the Adelaide Mosque after he had resigned there is no evidence that there was any discussion about the withdrawal of his resignation or the reappointment of the defendant as Imam of the Adelaide Mosque. The defendant just performed some of the duties without discussing the matter with the plaintiff. At the same time the plaintiff was taking steps to appoint and eventually did appoint another Imam. The defendant should have known that he was no longer the Imam notwithstanding the fact that he had decided to carry out some of the duties.
The attempts that were being taken by the plaintiff to recover possession of the premises and appoint another Imam are inconsistent with any implied representation that the defendant could occupy the Imam’s house.
In his written submissions Mr Roger Sallis, who appeared for the defendant, argued that it was reasonable for the defendant to adopt the following assumptions after June 2014:
96.1 That for at least one year after his purported resignation as Imam of the Adelaide Mosque the plaintiff agreed to his continuation in the role of Imam of the Adelaide Mosque including:
a) not appointing another Imam of the Adelaide Mosque;
b) continuing to accept his services as Imam of the Adelaide Mosque;
c) praying behind him;
d) knowingly consenting to him opening and closing the Adelaide Mosque;
e) knowingly consenting to and requesting him to lead prayers
f) knowingly consenting to and requesting he said prayer timetables for the Mosque;
g) permitting him to continue to conduct school tours on behalf of the plaintiff and to provide counselling services, including through the use of its officers;
h) continuing to permit him to occupy rent-free at the Imam’s residence including for the purpose of fulfilling his duties as Imam of the Adelaide Mosque.
As to the allegation in paragraph 96.1 subsection d) there is evidence that the defendant retained the keys and so from a practical point of view it was not possible to appoint another person to open and close the Mosque.
The fact that the defendant may have adopted the alleged assumption is by itself inconsequential. The adoption of the assumption would only be relevant if that had been induced by a statement of or the conduct of AMISSA. The defendant alleges that the plaintiff played its part in the defendant’s adoption of the assumptions in the following way:
97.1 by requesting the defendant to sign the first resignation letter and not the second letter;
97.2 by thereafter not acknowledging, including in writing, the defendants purported resignation from the position;
97.3 by not specifying to the plaintiff any end date;
97.4 by failing to take any steps to appoint a suitable replacement Imam of the Adelaide Mosque until over one year later (in July 2015);
97.5 by failing to notify the defendant of any steps it was taking and/or had taken to appoint a new Imam and/or any reasons for delay in appointing a new Imam;
97.6 by failing at any time after June 2014 (and ongoing) to convene a meeting of the General Body to either appoint a new Imam or to terminate the defendants engagement as Imam.
In my opinion none of those six matters give rise to any representation that could form the basis of the alleged estoppel.
As to the allegations in paragraphs 97.4, 97.5 and 97.6 Mr Ismail deposed that two days after the defendant’s resignation he attended a meeting of members of the Executive Committee and Representative Council at which meeting there was a resolution to invite Ensar Cutahija to perform the role of the Imam at the Adelaide Mosque to lead the Friday prayers. Thereafter Imam Ensar led the Friday prayers. Mr Hassam Kabbarra was appointed resident Imam of the Adelaide Mosque at a meeting on 3 June 2016 Mr Ismail said that following the resignation of the defendant the Society was trying to get another Imam from overseas and that an application for permission for the proposed Imam was made in about 2015.
On 3 June 2016 the plaintiff appointed a new resident Imam of the Adelaide Mosque.[70] At least from that time onwards there can be no doubt that the defendant knew that he was not the Imam of the Adelaide Mosque. The defendant never asserted that he was still the Imam of the Adelaide Mosque and there is no evidence that from 13 June 2014 the plaintiff did anything to indicate that the defendant’s resignation had not been accepted or that he was entitled to be reappointed as Imam of the Adelaide Mosque.
In Commercial Tenancy Law,[71] Bradbrook Croft and Hay state at paragraph 1.15:
Where an estoppel by representation is being relied upon it is, of course, necessary to establish that a relevant representation was actually made; see Wykes v Samilk Pty Ltd (1998) NSW ConvR 55-871.
Further, any representation must ordinarily be clear and unambiguous if it is to be effective in founding an estoppel: See Kellow-Falconer motors Pty Ltd v Nimorakiotakis Vic ConvR 54-620, 64, 444 [41] per Charles JA, with whom Ormiston and Buchanan J JA agreed; and see Fush v McKendrick & Co Pty Ltd (2004) V ConvR 54-686.
[70] Third Affidavit of Dawood Ashraf Choudhry in Plaintiff’s Tender Book 47 [16].
[71] Adrian J Bradbrook, Clyde E Croft and Robert S Hay Commercial Tenancy Law (LexisNexis Butterworths 3rd ed, 2008) [1.15].
For the actions of the plaintiff which are alleged in paragraph 97 of the defendants written submissions to give rise to the alleged assumptions it is necessary that those actions should give rise to a clear and unambiguous representation which induced the alleged assumption. There is no evidence which establishes that to be the case.
As I have mentioned the appointment as Imam and the right to occupy the house are separate matters. Even if the defendant had adopted the assumption alleged in paragraph 96 an assumption that he could continue as Imam did not convey with it an assumption that the defendant could reside in the house.
In light of the steps which were being taken by the plaintiff to recover possession of the Imam’s house, in particular the statements by officers of the plaintiff enquiring as to when the defendant would vacate the premises, I find that there are no circumstances in which a representation that the defendant would be entitled to occupy the premises could be inferred.
I find that it was not reasonable for the defendant to adopt the assumptions which are alleged in paragraph 96 of the Written Submissions.
There is no evidence that the plaintiff agreed to the defendant’s continuation in the role of Imam of the Adelaide Mosque. On the contrary the evidence establishes that it was well known that the plaintiff intended to appoint another Imam. The defendant did perform some of the services as Imam and some members of the Executive Committee may have prayed behind him and the plaintiff may have opened and closed the Mosque, but that did not give rise to an agreement to his continuation in the role of Imam of the Adelaide Mosque. Nor did the plaintiff’s actions in consenting to the defendant leading prayers. There is evidence that many Imams would lead prayers at the Adelaide Mosque at different times. Those persons did not have to be the Imam of the Adelaide Mosque. If the plaintiff requested the defendant to set timetables, conduct school tours and counselling services that falls a long way short of creating an assumption that the defendant could continue in the role of Imam of the Adelaide Mosque. As a whole the evidence establishes that the plaintiff did not want the defendant to continue in the role of Imam of the Adelaide Mosque and that it intended to appoint a new Imam. I have already referred to the plaintiff’s submission on this topic which I accept.
The allegation in paragraph h) that the plaintiff continued to permit the defendant to occupy the Imam’s house rent-free for the purpose of fulfilling his duties as Imam of the Adelaide Mosque is factually incorrect. I find that rather than permit the defendant to occupy the house the plaintiff, to the knowledge of the defendant, was attempting to recover possession of the premises. After 13 June 2014 plaintiff never permitted the defendant to occupy the house rent-free for the purpose of fulfilling duties as Imam of the Adelaide Mosque or for any other reason.
The fact that the plaintiff requested the defendant to sign the first resignation letter and not the second letter does not give rise to an assumption that the plaintiff agreed to his continuation in the role of Imam. In fact the request for the defendant to sign the first letter which contemplated an immediate resignation creates an inference to the contrary.
In the circumstances the alleged failure to acknowledge the defendants purported resignation was inconsequential. The defendant acknowledged his resignation by making a statement from the minbar. An acknowledgement by the plaintiff was unnecessary.
The specification of an end date to the plaintiff as alleged in paragraph 97.3 was unnecessary. As at 13 June 2014 both parties regarded the resignation as being of immediate effect.
The alleged failure to take steps to appoint a replacement Imam does not give rise to the alleged assumption. Similarly the alleged failure to notify the defendant of steps being taken to appoint a new Imam does not give rise to the basis for an assumption as does the omission to convene a meeting of the general body. In fact the plaintiff was taking steps to appoint a replacement.
At all material times it should have been obvious to the defendant that his resignation as Imam of the Adelaide Mosque by reason of his letter of 13 June 2014 was effective. Additionally it should have been obvious to the defendant that his right to occupy the Imam’s house had been determined.
An observation which must be made is that the written argument of counsel is not supported by evidence of the defendant. For example he never gave evidence that he assumed that notwithstanding his resignation he was entitled to be appointed as Imam of the Adelaide Mosque or that he assumed that he was entitled to occupy the Imam’s house. I accept the evidence of the plaintiff’s witnesses that the defendant made promises to vacate the Imam’s house. Those promises establish that the defendant knew that he was no longer the Imam of the Adelaide Mosque.
In Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Brennan J said:
In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship that existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiffs action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

On the same topic Priestley JA said in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582:
For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.
There is evidence that officers of the plaintiff were aware of duties which the defendant was performing which would normally be performed by the Imam of the Adelaide Mosque, and there is evidence that they did not object to him performing those duties, but there is no evidence that the plaintiff induced the defendant to adopt any assumption or expectation that he would be granted either an appointment as Imam or a right to occupy the Imam’s house or that the plaintiff encouraged the defendant to believe that might happen. There is no evidence that the defendant acted in reliance of such an assumption or expectation or that the plaintiff knew or intended him to do so.
In the context of the reasons of Priestley JA in Austotel there was no creation or encouragement by the plaintiff in the defendant of any assumption that a right to occupy the Imam’s house would come into existence or an interest granted to the defendant by the plaintiff.
The plaintiff did nothing to give rise to an assumption that the defendant would be appointed as Imam of the Adelaide Mosque or be granted a lease of the Imam’s house. More importantly there is no evidence that the defendant ever made such an assumption.
The evidence does not establish that this is a case where the plaintiff stood by in silence knowing that the defendant was proceeding on the assumption that he would be appointed Imam and would be entitled to occupy the house. The requests made by the plaintiff for the defendant to give up possession and the defendant’s promises to vacate the house establish that the defendant was not proceeding on such an assumption.
On the defendant’s evidence, in about August 2015 Farid Ismail advised the defendant that the Executive Committee wanted him to move out of the Imam’s residence so that renovations could be carried out.[72] He formed the view that the reason for the request was not so that renovation works could be performed but rather to terminate his role as Imam of the Adelaide Mosque.[73] He said that between November 2015 and January 2016 he received a number of requests to leave the Imam’s residence[74] and acknowledged that he indicated on several occasions that he would comply with the requests but wanted more time to leave.[75]
[72] Affidavit of Khalid Yousuf [263] – [274].
[73] Ibid [275].
[74] Ibid [280].
[75] Ibid [281].
If the defendant had a belief that the reason for the request that he vacate the Imam’s house was not so that renovation works could be performed but rather to terminate his role as Imam of the Adelaide Mosque that belief was without foundation. There is no evidence that in August 2015 the plaintiff believed the defendant to still be the Imam of the Adelaide Mosque or that the plaintiff was endeavouring to terminate the appointment.
The plaintiff’s witnesses gave evidence of requests made to the defendant to vacate the premises.
On his own evidence it should have been apparent to the defendant, at least from about August 2015, that the plaintiff was not permitting him to reside in the Imam’s house by reason of the fact that he was carrying out duties of the Imam. I find that the defendant was not entitled to make the alleged assumptions at least from that time. Nevertheless he continued of his own volition to carry out the duties of the Imam.
The actions of the defendant which would normally have been performed by the Imam of the Adelaide Mosque were voluntary and in the main not the result of any request by the plaintiff. There is evidence of requests by officers of the plaintiff for the defendant to conduct marriages and establish prayer timetables but those requests do not give rise to the basis for an estoppel.
Similarly the fact that members of the Executive Committee may have prayed behind the defendant or referred people to him for counselling did not include any promise that the defendant would be reappointed as the Imam of the Adelaide Mosque and did not provide the basis for an estoppel.
The plaintiff claims that he rejected offers of employment at Burc College and Garden College because of his duties as Imam of the Adelaide Mosque. Counsel argued that he did so on the assumption that his resignation had not been accepted by the plaintiff.[76] That argument is unsupported by evidence that the defendant believed that his resignation had not been accepted. In paragraph 260 of his affidavit the defendant deposed:
I declined both offers for employment because it would have been impossible for me to continue performing all my duties as Imam of the Adelaide Mosque and to travel to any of the campuses where I needed to teach.
[76] Defendant’s Written Submissions 19-20 [89].
The plaintiff’s counsel submitted that there was nothing stopping the defendant from taking up either offer of employment apart from his desire to maintain his physical connection with the Mosque. I accept that submission. The plaintiff had resigned from the position of Imam of the Adelaide Mosque and it was clear to him from the actions and statements of the officeholders of the plaintiff society that he was no longer welcome to continue performing those duties. I accept the submission that all material decisions were made by the defendant personally and they were motivated and governed by his own perception of his economic self-interest. His rejection of the teaching positions at the colleges is irrelevant to the claimed estoppel.
It must be remembered that the reason for the defendant’s resignation on 13 June 2014 was the fact that he could not fulfil the duties of both Imam of the Adelaide Mosque and the school.
The defendant’s resignation as Imam of the Adelaide Mosque was not valid
The defendant argued that there is a legally enforceable agreement between the parties will terms of which are that:
1. The defendant is the Imam of the Adelaide Mosque; and
2. So long as the defendant holds the position of Imam of the Adelaide Mosque he is entitled to occupation of the Imam’s residence rent-free.
The defendant argued that he has continued to fulfil his obligations under the agreement, that the association has not terminated the agreement, the Executive Committee is incapable of doing so and the defendant continues to perform his role as Imam of the Adelaide Mosque.[77]
[77] Ibid 34 [138].
There is an inconsistency in the defendant’s position. On the one hand he asserts that the officers of the plaintiff had not been properly appointed and lacked authority. On the other hand he argues that those same persons have entered into a “legally enforceable agreement” with him on behalf of the plaintiff.
It is argued for the defendant that if the court accepts that an enforceable agreement continues to subsist between the plaintiff and the defendant, such an agreement is capable of attracting an order for specific performance. The defendant asserts that by virtue of that agreement the defendant has a continual right in the nature of a license to reside at the Imam’s residence. It is argued that the right is a form of “equitable tenancy at law”. (Written Submissions paragraph 133 and following).
Mr Sallis referred to Modern Land Law[78] edited by Dr M Dixon at page 209-10 where the following statement is made:
The contract/lease analysis discussed above is the usual way in which an equitable lease comes into existence. However, it is also possible for an equitable lease to arise out of the operation of the Doctrine of Proprietary Estoppel. Proprietary Estoppel leases will arise where the landlord has promised some right to the “tenant” in writing or orally, and this is relied on by the prospective tenant to his detriment. The court may then “satisfy” the estoppel by giving the promisee a tenancy, albeit an equitable one, that has arisen out of the informal dealings between the parties. Such a situation would be rare but cannot be discounted completely… For now, the important point is that Proprietary Estoppel may result in the generation of an equitable lease out of a purely oral agreement.
[78] Dr Martin Dixon Modern Land Law (Routledge, Oxford 9th ed, 2014) 209-10.
For an equitable lease to arise out of the operation of the doctrine of Proprietary Estoppel in the way suggested by Dr Dixon the “landlord” must have promised some right to the “tenant” in writing or orally. There is no evidence of any such promise in this case. After the resignation of the defendant the plaintiff never promised a lease or any other right to occupy the Imam’s house. The plaintiff’s consistent position has been that it required the defendant to give up possession.
In written submissions the defendant addressed the question of whether there was a tenancy at will or equitable lease. In my opinion there is no evidence of an equitable lease.
I find that there is no binding legal agreement of the type alleged in paragraph 1 C. of the defendant’s written submissions.
Mr Sallis argued that the defendant’s resignation as Imam of the Adelaide Mosque was not a valid resignation but was procured by unconscionable conduct on the part of the plaintiff.[79] There is no evidence of unconscionable conduct. There may have been a disagreement between the parties about the defendant’s involvement in the Halal certification process but even on his own evidence the plaintiff’s resignation was his own decision caused by the demand of his employer.
[79] Defendant’s Written Submissions 2 [1].
The defendant had the option of choosing work at the school or work at the Mosque.[80] For financial reasons the defendant could not stop working at the school.[81] The defendant had to choose between the school and the Mosque and he chose the school.[82] The ultimatum which was given to the defendant was not unreasonable. If the defendant was to continue as Imam of the Adelaide Mosque the plaintiff was entitled to expect a full-time commitment and that the Imam would conduct the important prayer session at noon on Fridays. The two letters of resignation were prepared by the defendant himself and the defendant gave the plaintiff two alternatives. The plaintiff chose that one which did not include the defendant’s offer to continue in the role of Imam of the Adelaide Mosque until a new Imam was found.
[80] Affidavit of Khalid Yousuf [188].
[81] Ibid [189].
[82] Ibid [194] – [203].
Mr Sallis argued that the tying by the plaintiff of the defendant’s full-time role as the Imam of the Adelaide Mosque to Halal certification, in circumstances where the defendant had no involvement in the same, amounted to illegitimate and inequitable conduct on the part of the plaintiff.[83] While the topic of the defendant’s role in Halal certification had been the subject of a disagreement between the parties there is no evidence that the resignation of the defendant was tied to his refusal to cooperation with the Halal certification process. The evidence establishes that it was the conflict between the defendant’s duties as Imam and his obligations to the school which precipitated the discussions which led to him resigning. I find that the defendant was not coerced to resign as a consequence of the dispute over the Halal certification process.
[83] Ibid [126].
The fact that the plaintiff chose the option which involved an immediate resignation is significant in the context of the asserted estoppel. The plaintiff chose that option which did not involve the defendant continuing in the role of Imam of the Adelaide Mosque until a new Imam was found. Because the plaintiff had chosen that option the defendant knew that the plaintiff did not require him to continue to act as Imam until a new Imam was found.
I find that the defendant occupied the Imam’s house pursuant to an oral agreement. By reason of sections 29 and 30 of the Law of Property Act 1936 (SA) the defendant was a tenant at will. The interest of the defendant in the land was determinable at any time simply by demand for possession. There is evidence of many demands. The commencement of the proceedings by itself can constitute a demand.[84] The defendant was required to vacate the premises immediately upon the demand. There is evidence that the plaintiff had granted some indulgence but the time when the defendant should quit has well and truly arrived.
[84] D I Cassidy and M R Redfern Australian Tenancy Practice and Precedents (LexisNexis, Butterworths 2013) vol 1, 105 [17].
I find that at least since the commencement of these proceedings the defendant has not had any interest in the land which would permit him to occupy the Imam’s house.
I accept the submission of the plaintiff’s counsel that it does not matter whether the defendant has validly resigned as Imam or whether or not he is still performing the duties of the Imam. The occupation of the Imam’s house is a separate matter from the appointment as Imam. By giving notice the plaintiff has terminated the defendant’s right to occupy.
Has the Defendant shown cause as to why he ought not to be required to vacate the Imam’s residence - within the meaning of that expression under section 198 of the Real Property Act?
The plaintiff did not proceed with this argument which was based upon the reasons of Zelling J in Moonta Town Corporation v Rodgers (1980) 26 SASR 143, 155. His Honour said that the summary jurisdiction under section 195 of the Real Property Act should not be invoked where disputed questions of fact and law can only be resolved by remedies available in the ordinary jurisdiction of the court. This trial proceeded as a trial pursuant to the order of a Judge. The parties exchanged pleadings and witnesses were examined and cross-examined in the same way that they would be in the ordinary jurisdiction of the court.
Conclusions
Many of the persons who pray at the Adelaide Mosque are not members of the plaintiff association. There is evidence that the plaintiff enjoys the support of a great number of those persons. They treat him as the Imam. However the Imam of the Adelaide Mosque is not a position determined by support from persons who are not members of the Association. Additionally the right to occupy the Imam’s house is solely within the power the plaintiff Society.
The plaintiff resigned as Imam of the Adelaide Mosque by a letter dated 13 June 2014. There is no reason why the resignation was not effective.
The plaintiff’s occupation of the Imam’s house was pursuant to a separate oral arrangement between the parties. The defendant was a tenant at will and the tenancy has been terminated by the plaintiff.
The events subsequent to the defendant’s resignation on 13 June 2014 do not give rise to any estoppel or legally enforceable agreement as claimed by the defendant
The defendant must give up possession of the Imam’s house.