Rana v Survery

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

1. BATHURST 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

1. The 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…