Bangladesh Association of Australia Inc v Khan

[2007] NSWSC 525

CITATION:	Bangladesh Association of Australia Inc v Khan [2007] NSWSC 525
HEARING DATE(S):	18/05/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	18 May 2007
DECISION:	The proceedings are dismissed with costs.
CATCHWORDS:	PROFESSIONS [76]- Lawyers- Challenge to retainer- Solicitors retained by General Secretary of plaintiff association- General Secretary had no authority to commence actions on behalf of association- Held retainer invalid.
PARTIES:	Bangladesh Association of Australia Inc (P) Farooque Ahmed Khan (D1) Waliur Rahman Tunu (D2) Alaudin Alok (D3)
FILE NUMBER(S):	SC 2765/07
COUNSEL:	L Byrne (P) D1 in person D2 in person D3 in person
SOLICITORS:	AAT Legal (P) D1 in person D2 in person D3 in person

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Friday 18 May 2007

2765/07 – BANGLADESH ASSOCIATION OF AUSTRALIA INC v KHAN

JUDGMENT

1 HIS HONOUR: This is an application brought in the name of the Bangladesh Association of Australia Inc against three of its officers. The three officers have appeared in person and have challenged the retainer of the solicitor for the plaintiff. The solicitor for the plaintiff is Mr Alex Tees, who trades as AAT Legal. It would seem, however, that whilst I am told that he has acted under the aegis of Mr Tees, the documents filed have been filed under the name of Mr Sirajul Haque. This is bad practice, but no-one has taken a point on that.

2 If a person's retainer is challenged, he or she must be in a position to justify his or her authority to commence the action. Mr Haque has purported to do that by tendering his cost disclosure document, which appears to have been accepted by Mr Ataur Rahman Khan, who says he is the General Secretary of the association.

3 It is unclear what the association's present constitution is. However, Mr Liam Byrne, who appears for the plaintiff, says it is either the document ARK 3 or the document ARK 4. Clause 19 of each of those constitutions is in very similar form. In ARK 3 clause 19.1 says:

“[The] PRESIDENT shall be the executive head of the Association and the Chief office-bearer of the Executive Council. He shall preside over all meetings and functions of the Association. The President has the authority to decide on any matter, which subsequently is required to be approved by the Executive Council with retrospectives [sic] effect. The President or his/her nominee, who must be a member of the Association, may represent the Association in all outside affairs.”

4 The General Secretary's role is defined in 19.4 and that is to lodge notice of his or her address, to coordinate the activities of members of the Executive Council, to keep the President informed of all aspects of the Association and to arrange all meetings and functions of the Association with the concurrence of the President. He is not given any authority to commence actions in the name of the Association.

5 It seems to me, on the constitution, that on the balance of probabilities, there was no authority on the General Secretary, Mr Ataur Rahman Khan, to instruct solicitors. Accordingly, the proceedings must be dismissed and the Court must order Mr Tees to pay the whole of the costs of the proceedings for commencing an action without proper authority.

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