Nirmal Paul v Apu Saha - [2011] NSWSC 1109

Supreme Court

New South Wales

Medium Neutral Citation: Nirmal Paul & Anor v Apu Saha & Ors [2011] NSWSC 1109
Hearing dates: 22 to 24 August 2011, 29 September 2011 and 14 October 2011
Decision date: 02 December 2011
Before: Ball J
Decision:
See paragraphs 65 and 66 of this judgment.

Catchwords: ASSOCIATIONS AND CLUBS - officers - question as to rightful executive committee of association - whether was a quorum at Special General Meeting - construction of constitution of association - whether executive committee validly removed from office - whether interim committee validly appointed - whether interim committee had power to call an Annual General Meeting - whether Corporations Act 2001 s 1322 can be used to cure irregularities in calling of Annual General Meeting
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Associations Incorporation Act 2009 (NSW)
Associations Incorporation Regulation 2010 (NSW)
Corporations Act 2001 (Cth)
Cases Cited: Ball v Pearsall (1987) 10 NSWLR 700
Luen Fook Tong Inc v Lowe [2011] NSWSC 1004
Category: Principal judgment
Parties: Nirmal Paul (First Plaintiff)
Bangladesh Society for Puja and Culture Inc (ABN 45 046 931 929) (Second Plaintiff)
Apu Saha (First Defendant)
Sanjib Mohanjan (Second Defendant)
Rani BS Chowdhury (Third Defendant)
Samir Sarkar (Fourth Defendant)
Ranjit Kumar Das (Fifth Defendant)
Representation: Mr C R de Robillard (Plaintiffs)
Mr M Vassili (Defendants)
Kent Attorneys (Plaintiffs)
Vassili Fozzard Lawyers & Consultants Pty Ltd (Defendants)

File Number(s): 2010/417798

Judgment

Introduction

The second plaintiff, Bangladesh Society for Puja and Culture Inc ( BSPC ), was incorporated in about 1996 under the Associations Incorporation Act 1984. It is now taken to be incorporated under the Associations Incorporation Act 2009 (the AI Act 2009 ): see AI Act 2009 sch 4 cl 3. The principal object of BSPC is to organise religious and cultural activities for people of Bangla origin. The word "Puja" means "prayer or devotion".

For reasons which are unclear from the evidence, the members of BSPC have divided into two principal factions: those who are represented by the first plaintiff, Mr Nirmal Paul, and those who support Mr Apu Saha, the first defendant. This case concerns a dispute between the two factions about the composition of BSPC's executive committee and who is entitled to represent BSPC. The resolution of that dispute turns on what happened at a meeting requisitioned by members of BSPC by notice dated 19 August 2008 to be held on 20 September 2008 and, in particular, whether a new interim executive committee was validly elected at that time. If the interim executive committee was not validly elected at that time, there is a question of what follows from that fact. The defendants in a cross-summons seek declarations that all resolutions of successive executive committees since then are invalid and are not binding on BSPC. Implicit in that claim is a claim that the annual general meeting of BSPC held on 6 February 2011 was not validly called. The defendants also seek an order the effect of which is that control of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 1109
Decision Date: 02 December 2011

CaseChat Overview and Summary

The case of Nirmal Paul v Apu Saha involved a dispute concerning the rightful executive committee of an association. The plaintiffs, Nirmal Paul and others, challenged the actions of the defendants, Apu Saha and others, who claimed to be the legitimate executive committee. The dispute centred around the interpretation of the association's constitution, the validity of a Special General Meeting, the removal of the executive committee, the appointment of an interim committee, and the calling of an Annual General Meeting. The matter was heard in the Supreme Court of New South Wales.

The court had to decide several legal issues, including whether there was a quorum present at the Special General Meeting, whether the executive committee was validly removed from office, whether the interim committee was validly appointed, and whether the interim committee had the power to call an Annual General Meeting. Additionally, the court had to consider whether section 1322 of the Corporations Act 2001 could be used to cure irregularities in the calling of the Annual General Meeting.

The court found that the Special General Meeting did not have a valid quorum, and as a result, the removal of the executive committee was invalid. The interim committee was also deemed not to be validly appointed. However, the court held that the interim committee did have the power to call an Annual General Meeting. Finally, the court determined that section 1322 of the Corporations Act 2001 could be used to cure the irregularities in the calling of the Annual General Meeting. As a result, the interim committee's call for an Annual General Meeting was deemed valid.

The court ordered that the plaintiffs, Nirmal Paul and others, were entitled to call an Annual General Meeting in accordance with the association's constitution. The court also ordered that the interim committee's appointment was invalid, and that the original executive committee would remain in office until a new committee was duly elected at the Annual General Meeting.

Orders