Rashid Raashed v Bangladesh Islamic Centre of New South Wales Inc - [2018] NSWSC 1001

Supreme Court

New South Wales

Medium Neutral Citation: Rashid Raashed v Bangladesh Islamic Centre of New South Wales Inc [2018] NSWSC 1001
Hearing dates: 6, 7, 8, 9 March 2018, 28, 29, 30, 31 May 2018, 1, 5, 20 June 2018
Decision date: 29 June 2018
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See paras [481]-[487]

Catchwords: VOLUNTARY ASSOCIATIONS – associations and clubs – general matters – appointment of a receiver and manager – alleged expulsion of members and rejection of applicants to association – alleged financial mismanagement – circumstances warranting appointment of receiver and manager
Legislation Cited: Associations Incorporation Act 1984 (NSW)
Associations Incorporation Act 2009 (NSW)
Associations Incorporation Regulation 2016 (NSW)
Evidence Act 1995 (Cth)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Agricultural Societies Council of NSW v Christie [2016] NSWCA 331
Ahmed v Chowdhury [2012] NSWSC 1452
Chowdhury v Bangladesh Islamic Centre of NSW [2008] NSWSC 1073
Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd (2012) 203 FCR 70; [2012] FCA 346
Deputy Commissioner of Taxation v Meredith (2007) 229 FLR 243; [2007] NSWCA 354
Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7
Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80
Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242; [1979] HCA 27
House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc [2009] NSWSC 817
Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; [2005] NSWCA 4
McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470
McLean v McKinlay [2004] WASC 2
Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22
North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; [2012] NSWCA 168
Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
White v Overland [2001] FCA 1333
Texts Cited: A S Sievers, Associations and Clubs Law in Australia and New Zealand (The Federation Press, 3rd ed, 2010)
Category: Principal judgment
Parties: Rashid Raashed (First Plaintiff)
Md Yunus Ali Mondal (Second Plaintiff)
Bangladesh Islamic Centre of NSW Inc (Defendant)
Representation:
Counsel:
P Horobin (Plaintiffs)
J Zmood (Defendant)
Solicitors:
MIC Lawyers (Plaintiffs)
Executive Legal (Defendant)

File Number(s): 2017/258940
Publication restriction: n/a

Judgment

The proceedings
Background facts
Incorporation and the BIC’s Amended Constitution
Objects and definitions
How to become a member
Operation of the Associations Act
Disciplining members of the BIC
Removal of members of Executive Council
Holding General Meetings and Special General Meetings
Holding Annual General Meetings and service of notices

History of the BIC

Parties’ submissions
The Plaintiffs
Expulsion of Plaintiffs
Membership applications and renewals
Financial management
Receivership
Waiver

The Defendant
Expulsion of Plaintiffs
Membership applications and renewals
Financial management
Receivership
Waiver

Legal principles
Appointment of a receiver
Natural justice and expulsion from voluntary societies
Presumption on the regularity of mail

Plaintiffs’ evidence
Evidence of Dr Rashid Raashed
Evidence of Mr Md. Yunus Ali Mondal
Evidence of the membership applicants
Mr Md. Abdul Gofur
Mr Motahar Ali
Mr Kabir Ahmed
Mr Mohammad Samchhul Alam
Mr Ferdous Alam
Mr Abdul Bashit
Mr Md. Tanjinur Rahman
Mr Mohammed Mueen Uddin
Mr Mohammad R K Chowdhury
Mr K M Omar Hayet
Mr Muktadir Ahmed
Mr Md. Shah Alam

Defendant’s Evidence
Evidence of Mr Emamul Haque
Evidence of Mr Md. Monowar Hossain Mirdha
Evidence of Mr Fakhruddin Ahmed Chowdhury
Evidence of Mr Akterul Islam
Evidence of Mr Syed Harunur Rashid

Consideration
Witnesses generally
Expulsion of the Plaintiffs
Membership applications and renewals
Financial management

Conclusion

Judgment

The proceedings

These proceedings were commenced by Dr Rashid Raashed (First Plaintiff) and Mr Md. Yunus Ali Mondal (Second Plaintiff) by way of Summons dated 25 August 2017 seeking interlocutory relief restraining the Bangladesh Islamic Centre of NSW Inc (the Defendant) (BIC) from holding its Annual General Meeting as scheduled for 27 August 2017.
The BIC is a religious and communal organisation for Muslims of Bangladeshi background in New South Wales and owns and operates a mosque in Sefton. As is evident below the BIC has been involved in numerous litigations.
On 25 August 2017 Pembroke J ordered an injunction temporarily restraining the Annual General Meeting being held by the Executive Council until further order.
On or about 22 September 2017 the Plaintiffs filed a Statement of Claim seeking relief by the appointment of a receiver and manager to the Defendant pursuant to sections 23 and 67 of the Supreme Court Act 1970 (NSW) as well as the equitable jurisdiction of this Court to appoint a receiver and manager.
On 6 March 2018 the Plaintiffs filed an Amended Statement of Claim (ASOC).
The matter was part-heard on 6 March 2018 wherein the First Plaintiff Dr Raashed was cross-examined briefly. On 7 March 2018 the parties attended a mediation and discussions continued on 8 and 9 March. On 9 March 2018 I was informed by counsel for the Defendant that the Defendant had withdrawn instructions in the matter.
With new counsel for the Defendant the matter was heard again on 28 May 2018 to 1 June 2018 with submissions made by counsel on 5 and 20 June 2018.
The central contention of the Plaintiffs is that the current Executive Council are conducting the affairs of the BIC such that it has committed breaches of its own Constitution and the Associations Incorporation Act 2009 (NSW) (the 2009 Associations Act) warranting the appointment of a receiver and manager.

Background facts

Incorporation and the BIC’s Amended Constitution

The BIC was incorporated on 1990 under the then Associations Incorporation Act 1984 (NSW) (Exhibit P2 1).
On 6 April 2005 Dr Raashed in separate proceedings filed a Summons seeking to restrain the holding of an Annual General Meeting of the BIC, the immediate determination of 56 membership applications and oppose proposed amendments to the now 2005 Amended Constitution. These proceedings were later withdrawn (CB2 170-1).
On 22 July 2005 the BIC registered its Amended Constitution of the Bangladesh Islamic Centre of NSW Inc (Amended Constitution) with the Director-General of the Department of Fair Trading pursuant to section 20(3) of the then Associations Incorporation Act 1984 (NSW). The parties to these proceedings agree that the Amended Constitution is valid and the Plaintiff accepts the current Executive Council was validly elected (Plaintiffs’ Final Submissions [3]; T434/49-T435/5).

Objects and definitions

As outlined in the Amended Constitution the objectives of the BIC include promoting and sharing the unique cultural heritage of Bangladeshi Muslims, keeping contact with all other Islamic organisations in Australia and overseas, promoting and maintaining unity and friendship among Muslims (CB1 266).
The BIC is governed by the Executive Council. The Executive Council is defined in clause 5 of the Amended Constitution as “the committee having the power of exercising functions relating to the management of day to day affairs of the Centre” (CB1 267) and the powers of the Executive Council are set out at clause 18.
The Executive Council consists of the office-bearers of the BIC and 7 ordinary members each of whom shall be elected at the Annual General Meeting of the Centre pursuant to clause 20. The office-bearers are as follows the identity of which are not all known:

President (clause 21) (currently Mr Emamul Haque);

Vice president (clause 22);

General secretary (clause 23) (currently Mr Syed Harunur Rashid);

Assistant general secretary (clause 24);

Treasurer (clause 25) (currently Md. Monowar Hossain Mirdha);

Secretary for women interests (clause 26);

Secretary for youth affairs (clause 27); and

Publication secretary.

As is apparent in clause 5 of the Amended Constitution, the Amended Constitution operates with reference to the now superseded Associations Incorporation Act 1984 (NSW) (the 1984 Associations Act) (CB1 268):

Definitions
5. In these rules:
…
The Act means the Associations Incorporation Regulation Act 1984.

It was acknowledged in closing submissions that whilst the Amended Constitution refers to an “Associations Incorporation Regulation Act 1984” it should be read to refer to the Associations Incorporation Act 1984 (NSW) and erroneously refers to it as a “regulation” (T408/41-7).
Clause 6(c) provides that the provisions of the Interpretation Act 1987 (NSW) apply in respect of the rules of the Amended Constitution in the same manner as those provisions would so apply if these rules were an instrument under that Act (CB1 268).

How to become a member

The Amended Constitution provides (CB1 264-92) (emphasis added at clause 9(i)):

Membership
7. The membership of the Centre shall be of two categories:
(a) Member; and
(b) Life member.
Membership qualifications
8. A person is entitled to be a member of the Centre 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 Centre at any time after incorporation of the Centre under the Act; or
(b) At least one of the person’s or nominee’s parents is a descendant from Bangladesh;
(c) The person is a Muslim aged 18 years or over who is willing to subscribe to the aims and objectives of the Centre; and
(d) In the case of a member he/she:
(i) has been nominated for the membership of the Centre as provided by rule 9; and
(ii) has been approved for membership of the Centre by the Executive Council of the Centre or at a General Meeting as provided by rule 9; and
(iii) has paid the Centre membership fee in terms of either entrance fee or annual subscription.
Nomination for membership
9. A nomination of a person for membership of the Centre:
(a) Shall be made by two members of the Centre in writing in the form set out in Appendix 1 to these rules and shall be lodged with the General Secretary of the Centre;
(b) As soon as practicable after receiving a nomination for membership, the General Secretary shall refer the nomination to the Executive Council which shall then determine whether to approve or reject the nomination for membership.
(c) Where the Executive Council determines to reject the nomination for membership, it shall refer the nomination to the next General Meeting which shall determine whether to approve or to reject the nomination.
(d) Where the Executive Council or the General Meeting determines to approve a nomination for membership, the General Secretary shall:
(i) within 28 days of such decision being made, notify the nominee of that approval; and
(ii) request the nominee to pay within 14 days after the receipt by the nominee of the notification the sum payable under these rules by a member as entrance fee and/or annual subscription (non-refundable) of the Centre.
(e) Notwithstanding rule 9(d)(ii) and rule 9(a) above, payment of the entrance fee or any outstanding annual subscription shall be made in accordance with rule 14.
(f) The General Secretary shall enter the nominee’s name in the register of members and, upon the name being so entered, the nominee becomes a member of the Centre.
(g) Notwithstanding rule 9(f) above, the General Secretary shall be under no obligation to enter the nominees’ name in register of members should the nominee and / or nomination fail to comply with rules 9(a) to (e), above.
(h) Only those members whose names appear on the register of members shall be entitled to vote at any General Meeting.
(i) Final eligible voters list will be prepared in accordance with rules 9(e) and 14(c) and will be made available to the Returning Officer 72 hours prior to the Annual General Meeting. No membership dispute shall be dealt with on the day of the Annual General Meeting.
(j) The Centre will advise member(s) in writing in due time to renew their membership by the deadline as decided by the Executive Council. It is the member(s) responsibility to renew their membership and check the eligibility of the member(s) to vote with the General Secretary 7 days prior to the final membership list being prepared for the Returning Officer by the Centre.
Cessation of membership
10. A member ceases to be a member of the Centre if:
(a) He / she dies; or
(b) He / she resigns that membership; or
(c) He / she is expelled from the Centre; or
(d) He / she fails to pay the annual membership fee prior to 21 days prior to the Annual General Meeting for the relevant year.
…
Subscriptions
14. A member shall pay the following fees:
(a) A member of the Centre shall, upon admission to membership, pay to the centre an entrance fee of $10.00 or the amount as determined by the Executive Council and approved at the General Meeting.
(b) In addition to any amount payable by the member under clause 14(a) a member of the Centre shall pay to the Centre an annual subscription fee of $10.00 or the amount as determined by the Executive Council and approved at the General Meeting.
(c) The annual subscription shall be due on 1st July of the relevant year to the 30th June of the following year and shall be paid no later than three weeks (21 days) before holding the Annual General meeting of the Centre and such date of the Annual General Meeting shall be decided by the Executive Council.
(d) A member ceases to be a member if he / she fails to pay the annual subscription within the above mentioned period as stated under rule 14(c). However, such a member can resume their membership by paying the current subscription of the Centre after 10 working days of holding of the Annual General Meeting of the Centre.

As is apparent above clauses 8 and 9 refer to “person”, “member” and “nominee” who might apply to be a member of the BIC. In closing submissions it was accepted by both Plaintiffs and Defendant that the words “applicant” or “nominee” or “member” should be read to accommodate the different circumstances wherein applicants were applying for the first time to the BIC or were reapplying to renew their membership (T410/31-2; T411/1-35).

Operation of the Associations Act

It is apparent that clause 8(a) of the Amended Constitution (at CB1 269) refers to section 15(1)(a)-(c) of “the Act” meaning the 1984 Associations Act which provides as follows:

15 Effect of incorporation
(1) On and from the date specified as the date of incorporation in a certificate of incorporation of an association granted under this Act (other than under section 14(5)), but subject to this Act and the rules of the incorporated association:
(a) in the case of a certificate granted under section 10, the persons who were the members of the association immediately before that date or, where the certificate is granted in respect of a proposed association as referred to in section 8(2), the persons who under that subsection authorised incorporation of the proposed association,
(b) in the case of a certificate granted under section 47, the persons who were, immediately before that date, the members of the incorporated associations which were parties to the amalgamation to which the certificate relates, or
(c) in the case of a certificate granted under section 48, the persons who, immediately before that date, were the members of the company or society in respect of which the application under that section was made,

together with any other persons who from time to time become members of the incorporated association (as from the time they become members), are an incorporated association by the name set out in the certificate, subject to any change of name effected by the issue of a new certificate of incorporation under section 14(5).
(2) The incorporated association:
(a) is capable forthwith of performing all the functions of the body corporate,
(b) is capable of suing and being sued,
(c) has perpetual succession and shall have a common seal, and
(d) has power to acquire, hold and dispose of property.

(3) Schedule 2 has effect in relation to an incorporated association.

Disciplining members of the BIC

The Amended Constitution also provides for the disciplining of members as stipulated by clause 16 (CB1 272-3). It is apparent that the disciplining of members under clause 16 operates synchronously with clause 10(c) of the Amended Constitution which provides for expulsion of members from the BIC (T413/31-6) (emphasis added at clauses 16(b)-(c) and 17(c)(i):

Disciplining of members
16. (a) Where the Executive Council is of the opinion that a member or life member of the Centre has done one of the following:
(i) Persistently refused or neglected to comply with a provision or provisions of these rules; or
(ii) Persistently and wilfully acted in a manner prejudicial to the interests of the Centre;
The Executive Council may, by resolution do one of the following:
(iii) Expel the member from the Centre; or
(iv) Suspend the member from membership of the Centre for a specified period.
(b) A resolution of the Executive Council under rule 16(a) is of no effect unless the Executive Council, at a meeting held not earlier than 14 days and not later than 28 days after service on the member of a notice under rule 16(c) confirms the resolution in accordance with this rule.
(c) Where the Executive Council passes a resolution under rule 16(a), the General Secretary shall, as soon as practicable, cause a notice in writing to be served on the member which does the following:
(i) Sets out the resolution of the Executive Council and the grounds on which it is based.
(ii) States that the member may address the Executive Council at a meeting to be held not earlier than 14 days and not later than 28 days after service of the notice;
(iii) States the date, place and time of that meeting; and
(iv) Informs the member that the member may do either or both of the following:
(A) Attend and speak at that meeting;
(B) Submit to the Executive Council at or prior to the date of that meeting written representations relating to the resolution.
(d) At a meeting of the Executive Council, held as referred to in rule 16(c), the Executive Council shall do the following:
(i) Give the member an opportunity to make oral representations;
(ii) Give due considerations to any written representations submitted by the member at or prior to the meeting; and
(iii) By resolution determine whether to confirm or to revoke the resolution.
(e) Where the Executive Council confirms the resolution under rule 16(d) the General Secretary shall, within seven days of such confirmation, by notice in writing inform the member of the fact and of the members’ right to appeal under rule 17.
(f) A resolution confirmed by the Executive Council under rule 16(d) does not take effect until the following takes place:
(i) Until the expiration of the period within which the member is entitled to appeal against the resolution, where the member does not exercise the right of appeal within that period; or
(ii) Until the Centre confirms the resolution pursuant to rule 17(d), where the member exercises the right of appeal within the period in which the right must be exercised.
Right of appeal of a disciplined member
17. (a) A member may appeal in a General Meeting against a resolution of the Executive Council which is confirmed under rule 16(d), within 7 days of notice of the resolution being served on the member by lodging with the General Secretary a notice to that effect.
(b) Upon receipt of a notice from a member under rule 17(a) the General Secretary shall notify the Executive Council which shall convene a General Meeting of the Centre to be held within 21 days after the date on which the General Secretary received the notice.
(c) The following must be observed at a General Meeting of the Centre convened under rule 17(b):
(i) No business other than the question of the appeal is to be transacted;

(ii) The Executive Council and the member shall be given an opportunity to state their respective cases orally, in writing or both; and
(iii) The members present shall vote by secret ballot on the question of whether the resolution should be confirmed or rejected.

(d) If at the General Meeting the Centre passes a resolution in favour of the confirmation of the resolution, the resolution is confirmed.

Removal of members of Executive Council

Clause 31 of the Amended Constitution provides (CB1 280):

31. (a) The Centre in a General Meeting may by resolution remove any member of the Executive Council from the office before the expiration of the member’s term of office and by resolution appoint another person to hold office until the expiration of the term of office of the member so removed.
(b) Where the member of the Executive Council to whom a proposed resolution referred to in rule 31(a) relates makes representations in writing to the General Secretary or the President (not exceeding a reasonable length) and requests that the representations be notified to the members of the Centre, the General Secretary or the President may send a copy of the representations to each member of the Centre or, if they are not sent, the member is entitled to require that the representations be read out at the meeting at which the resolution is considered.

Holding General Meetings and Special General Meetings

With respect to General Meetings and Special General Meetings clause 35(a)-(g) provides (CB1 282) (emphasis added at clause 35(g)):

35. (a) The Executive Council may, whenever it thinks fit, convene a General Meeting of the Centre. All such meetings shall be called by the General Secretary.
(b) Any matter which is not covered or clearly defined in the foregoing objects or rules, shall be referred to a General Meeting for its decision. Any decision made at a General Meeting on any matter shall be regarded as final and shall prevail over any other decision with regard to that matter.
(c) The Executive Council shall, on the requisition in writing of not less than one-third of the total number of members, convene a General Meeting of the Centre.
(d) A requisition of members for a Special General Meeting:
(i) shall state the purpose of the meeting;
(ii) shall be signed by the members making the requisition;
(iii) shall be lodged with the General Secretary.

(e) If the Executive Council fails to convene a General Meeting to be held within 1 month after the date on which a requisition of members for the meeting is lodged with the General Secretary, any one or more of the members who made the requisition may convene a General Meeting to be held not later than 1 month after that date.
(f) At a General Meeting convened by a member or members as referred to in rule 35(e) shall be convened as nearly as is practicable in the same manner as General Meetings are convened by the Executive Council and any member who thereby incurs expense is entitled to be reimbursed by the Centre for any expense so incurred.
(g) No business shall be transacted at this meeting outside the agenda stated in the requisition.

Holding Annual General Meetings and service of notices

With respect to clauses 37 and 38 the Amended Constitution also provides certain requirements for Annual General Meetings (to be distinguished from General Meetings and Special General Meetings) (T419/19-T420/10) (CB1 283-4) (emphasis added at clause 38(d)):

Annual general meetings – calling of and business at
37. The following applies in relation to the calling of and business at Annual General Meetings:
(a) The Annual General Meeting of the Centre shall, subject to the Act and rule 36 be convened on such date and at such place and time as the Executive Council thinks fit.
(b) In addition to any other business which may be transacted at an Annual General Meeting, the business of an Annual General Meeting shall be:
(i) To confirm the minutes of the last preceding Annual General Meeting and of any General Meeting held since that meeting;
(ii) To receive from the Executive Council reports upon the activities of the Centre during the last preceding financial year;
(iii) To elect office-bearers of the Centre and ordinary members of the Executive Council; and
(iv) To receive and consider the statement which is required to be submitted to members pursuant to section 26(6) of the Act. This statement shall include a true and fair view of the income and expenditure of the Centre during the financial year and the assets and liabilities of the Centre at the end of the financial year.
(v) To elect the auditor or the auditors of the Centre.
Notice
38. The requirements in relation to notice are as follows:
(a) Where the nature of the business proposed to be dealt with at a General Meeting requires a resolution of the Centre, the General Secretary shall, at least 14 days before the date fixed for the holding of the General Meeting, cause to be sent by prepaid post to each member at the member’s address appearing in the register of members, a notice specifying the place, date and time of the meeting and the nature of the business to be transacted at the meeting. In the case of an emergency, a general meeting may be called by giving 7 days notice.
(b) Where the nature of the business proposed to be dealt with at a General Meeting requires a special resolution of the Centre, the General Secretary shall, at least 21 days before the date fixed for holding of the General Meeting, cause notice to be sent to each member in the manner provided in rule 38(a) specifying, in addition to the matter required under rule 38(a), the intention to propose the resolution as a special resolution.
(c) A member desiring to bring any business before a General Meeting may give notice in writing of that business to the General Secretary who shall include that business in the next notice calling a General Meeting given after the receipt of the notice from the member.
(d) No business other than that specific in the notice convening a General Meeting is to be transacted at the meeting. In case of an Annual General Meeting, other business may be transacted outside the rule 37.

As discussed in closing submissions it is apparent that the General Meetings and Special General Meetings are to be conducted in a more restricted manner and must only consider what is foreshadowed on the agenda of the meeting (see clause 35(g) of the Amended Constitution). By contrast Annual General Meetings have more latitude and flexibility in the issues they consider (T419/49-T420/12).
Clause 52 of the Amended Constitution also provides more generally how notice may be served or given on a person:

Service of Notices
52. (a) For the purpose of these rules, a notice may be served on or given to a person in the following manner:
i. By delivering it personally; or
ii. By sending it by pre-paid post to the address of the member at the members [sic] address shown in the register of members; or
iii. By sending it by facsimile transmission or some other form of electronic transmission to an address specified by the person for giving or sending the notice.

(b) For the purposes of these rules, a notice is taken, unless the contrary is proved, to have been given or served:
i. In the case of a notice given or served personally, on the date on which it is received by the addressee; and
ii. In the case of a notice sent by pre-paid post, on the date when it would have been delivered in the ordinary course of post; and
iii. In the case of a notice sent by facsimile transmission or some other form of electronic transmission, on the date it was sent, or if the machine from which the transmission was sent produces a report indicating that the notice was sent on a later date, on that date.

History of the BIC

On 18 September 2008 in Chowdhury v Bangladesh Islamic Centre of NSW [2008] NSWSC 1073 Hamilton J delivered judgment on the validity of a meeting in which Mr Fakhruddin Ahmed Chowdhury was purported to be removed as President of the BIC on June 2008. Mr Chowdhury sought declarations that the meeting was invalid. Hamilton J found that the meeting was not a valid meeting and the action taken in respect of the Plaintiff was not a valid action (at [13]).
On 18 August 2009 in House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc [2009] NSWSC 817 Nicholas J delivered judgment on an application by House of Peace Pty Ltd that the transfer of the Sefton mosque from House of Peace had been procured by fraud. Dr Raashed was relevantly the director of House of Peace Pty Ltd and gave evidence at this trial although was not a plaintiff. Nicholas J found that the House of Peace Pty Ltd had not established any entitlement to relief and the Amended Summons was dismissed (at [98]).
On 28 November 2012 in Ahmed v Chowdhury [2012] NSWSC 1452 before Lindsay J the primary dispute was between Mr Kabir Ahmed (the sole plaintiff) and Mr Ayubur Rahman Chowdhury (first defendant) with the BIC as the fifth defendant. Mr Ahmed sought a declaration that his purported removal from the office of General Secretary of the BIC was invalid and an order that a new Annual General Meeting be convened. Lindsay J delivered judgment that the removal of Mr Ahmed was not invalid and ordered Mr Ahmed be restrained from acting, or holding himself out as entitled to act, as the General Secretary of the BIC (at [282]).
On 4 February 2014 Mr Ahmed attempted to enforce a costs order against the BIC in relation to the Kabir Ahmed v Bangladeshi Islamic Centre of NSW (2014/34769) matter by registration of the order at the Local Court for the amount of $101,012.24 (CB1 342-4) (Ahmed Claim).
On 5 February 2014 a garnishee order appears to have been granted from the BIC’s bank account with ANZ Bank in favour of Mr Ahmed for an amount of $11,945.29 in relation to the Ahmed Claim (CB1 243).
On 15 March 2014 Mr Ahmed appears to have received a cheque in the amount of $114.44 from Westpac Bank in relation to his garnishee order (CB2 244)
On 25 July 2014 Mr Mohamad Elzamtar filed a Statement of Claim relating to the matter Elzamtar v Bangladesh Islamic Centre of New South Wales (District Court Proceeding 2014/219737) (Elzamtar Claim).
On 13 October 2014 Mr Ahmed again commenced proceedings against Mr Khasrul Alam Talukder in Kabir Ahmed v Khasrul Alam Talukder (2014/299372).
On 16 October 2014 Mr Ahmed commenced proceedings by way of Summons against the BIC for the matter Kabir Ahmed v Bangladesh Islamic Centre (2014/303342) and filed an interlocutory application seeking to postpone the BIC elections set for 19 October 2014. The application to postpone the BIC elections was dismissed per Pembroke J on 16 October 2014.
On 19 October 2014 the BIC held elections.
On 30 October 2014 the Kabir Ahmed v Bangladesh Islamic Centre (2014/303342) matter was dismissed as per consent judgment with judgment in favour of the defendant and the plaintiff to pay the costs of the proceedings at a fixed amount. The Kabir Ahmed v Khasrul Alam Talukder (2014/299372) matter was also dismissed by consent in favour of the defendant in that matter (with each party paying their own costs).
On 8 January 2015 default judgment was entered in the Elzamtar Claim for $239,576.65 against the BIC.
In August 2015 the present Executive Council was elected to office with Mr Haque as President and Mr Rashid as Treasurer.
On 18 August 2015 Mr Ahmed and Mr Mondal commenced proceedings by way of Summons against the BIC (Kabir Ahmed v Bangladesh Islamic Centre) (2015/241593).
On 29 September 2015 Mr Ahmed wrote a letter to the Executive Council of the BIC seeking payment of judgment debt of $70,859.04 (CB2 238).
On 10 November 2015, Dr Raashed sent a letter to the Executive Council of the BIC requesting the books and records of the BIC pursuant to clause 51 of the Amended Constitution (CB2 96AA-96BB).
On or about 19 March 2016 Mr Kabir Ahmed was expelled from the BIC (CB1 153).
On 28 July 2016 Mr Ahmed obtained a Garnishee Order for Debts in relation to the Kabir Ahmed v Bangladeshi Islamic Centre of NSW (2014/34769) matter with the Commonwealth Bank garnishee for the amount of $74,742.14 (CB2 240-1).
On 16 October 2016, Dr Raashed appears to have sent a letter to the General Secretary and President of the BIC requesting a copy of the current list of general members of the BIC and books and records (CB2 96CC-96FF).
On 1 and 30 September 2016, the Plaintiffs and other signatories again requested from the Executive Council of the BIC books and records of the BIC (CB2 96GG-96LL).
On 7 December 2016 Dr Raashed wrote to the Executive Council of the BIC proposing to hold a General Meeting by requisition on 15 January 2017 attaching 60 signatures to this letter in an attempt to constitute the quorum for the requested meeting (CB2 96P-96U).
On 5 January 2017 Mr Syed Harunur Rashid replied to a Mr Marouf Hasan Raza referring to his letter of 15 December 2016 stating (CB2 96V):

We have been informed that the signatures relied upon by you, are not genuine. Accordingly, we require executed Statutory Declarations to be signed, along with photocopies of the member’s licenses or an acceptable photo ID forwarded to us.

On 16 January 2017, it appears the Plaintiffs and Mr Mufti Mohbur Rahman sent out a letter requesting attendance for the holding of a supposed “Special General Meeting by Requisition” on 12 February 2017 (CB2 96W-96X).
On 12 February 2017 Mr Ahmed called the supposed “Special General Meeting by Requisition” which the Plaintiffs attended. Mr Mondal gave the formal welcome address to this meeting which commenced at 11:45am in which approximately 60 members attended (CB2 96E-J). The Defendant alleges this was an unauthorised or “shadow” meeting that sought to depose the current Executive Council of the BIC elected in August 2015. This meeting resolved to redevelop the Sefton mosque site, expel the current Executive Council and reinstate Mr Ahmed as life member (CB2 96E-96J):

1. Recitation from the Holly [sic] Quran.
2. Discussion on proper Utilization of the Sefton Mosque on a long term basis. It felt necessary by the meeting members, to replace the current Executive Council/Committee (EC) with a rather effective one.
…
Mr Mondal proposed the name of Dr. Rashid Raashed to preside over this meeting. This motion was supported by all members present without any reservation or dissent.

On 22 February 2017 Mr Ahmed signed a letter as “President of BIC” addressed to the “Ex-Executive Council” of the BIC and copied to the “Ex-General Secretary and Ex-President of BIC”. The letter requested (CB2 96K):

For the need of urgency for our work we the new Executive Council of the BIC request you to handover all Books and Records of BIC, letter box key, website of BIC and cash money in hand remains within two weeks from the date of this letter.

On 12 March 2017 Mr Ahmed sent a further letter requesting books and records from the “Ex-Executive Council” of the BIC (CB2 96L-96M).
On or about 7 April 2017 Dr Raashed is alleged to have sought to enter and take control of the Sefton mosque by force (see for example Affidavit of Mr Chowdhury 20 May 2018 [40]; CB1 152).
On 11 April 2017 Mr Ahmed sent a further letter to Mr Emamul Haque requesting books and records to facilitate the “transition from the former executive council to the new executive council” (CB2 96N-96O).
On 1 May 2017 Parker J in Kabir Ahmed v Bangladesh Islamic Centre (2015/241593) delivered an ex tempore judgment noting that the meeting of 12 February 2017 and its resolutions were “invalid and ineffective” (at [1]). Parker J granted interlocutory relief for the BIC in this matter preventing Mr Ahmed from purporting to act pursuant to the purported resolutions of 12 February 2017 (at [3]). His Honour also made orders ensuring that any moneys that came into the possession of Mr Ahmed and Mr Mondal as a result of the events at the Sefton mosque were not expended and no further attempts were made to obtain such moneys (at [1]).
On 3 May 2017 Parker J made orders giving effect to his ex tempore judgment of 1 May 2017 in Kabir Ahmed v Bangladeshi Islamic Centre (2015/241593):

Interlocutory Injunctions:
On the defendant, via their counsel, giving the usual undertaking as to damages the court orders that until determination of the proceedings or until further order:
1. The plaintiffs be restrained from exercising or purporting to exercise pursuant to the purported resolutions made in the purported general meeting held 12 February 2017.
2. The plaintiffs be restrained from receiving, collecting or expending any funds generated from the operations of the defendant.
Procedural Orders
3. The plaintiffs have leave to amend their statement of claim so as to add or remove parties to the proceedings and/or seek any relief in respect of the purported resolutions made at the purported general meeting held 12 February 2017 such amended statement of claim to be filed and served by no later than 5:00pm Monday 8 May 2017;
4. That the defendants have leave to amend their defence and to file a cross-claim; such defence or cross-claim to be filed and served no later than 5:00pm 15 May 2017;
5. That the matter be brought back for directions (and in the case of any further party joined to the proceedings the proceedings be returnable) before the trial judge his Honour Parker J on 22 May 2017 at 9:30am.
Undertakings
The parties give the following undertakings until further order of this Court or the finalisation of these proceedings:
6. The defendant gives the plaintiffs the usual undertaking as to damages in respect of orders 1 and 2 above;
7. The plaintiffs undertake to keep accounts and records of any funds generated from the operations of the defendant already received or collected by them;
8. The defendant undertakes to keep accounts and records of funds received by it in its operations and to deposit such funds into a bank account operated by the defendant and undertakes not to expend any such funds otherwise than in its ordinary course of business;
9. The first plaintiff undertakes not to enforce any judgment he has against the defendant, including by way of garnishee order upon the bank accounts operated by the defendant.

On 13 June 2017 Parker J in Kabir Ahmed v Bangladesh Islamic Centre (2015/241593) dismissed Mr Ahmed’s claims and made further orders dismissing Mr Ahmed’s statement of claim and establishing Mr Lawrence Myers solicitor as returning officer for the BIC election to be held in August 2017. Parker J also noted the following undertaking:

That the defendant undertakes to the court and to the parties to renew or accept new membership applications in accordance with the constitution and require that such renewals or applications occur personally in accordance with the decision of Pembroke J dated 16 October 2014 wherein he said: “It is appropriate in the hotly contested environment in which the elections by the Bangladesh Islamic Centre have occurred, that persons who seek to renewal [of] membership should do so personally.”

As at this date Mr Ahmed also agreed to waive any right to remaining costs against the BIC thereby extinguishing his claim registered at the Local Court (or the Ahmed Claim for $101,012.24) (DTB 315).
On or about 15 July 2017 13 people submitted new membership applications to the BIC in the form of a bulk application paid in full by Mr Mondal in the amount of $260 (the Group Membership Request). Mr Islam deposes to having agreed to hold the $260 given to him by Mr Mondal (CB2 117). These 13 people were (ASOC [18]):

Mrs Sohena Raza;

Md. Jobayer Siddik;

Mohammed Abdul Hai;

Mr Mohammed Shahidul Islam;

AKM Omar Hayat;

Mohammed Chowdhury;

Emran Iqbal;

Mohammed Aleem;

Mehdi Sagor;

Marzan Ali;

Mahbub Ali;

Shakera Begum; and

Hafazur Rahman.

On 16 July 2017 the Executive Council of the BIC met. It was resolved to commence disciplinary action against the Plaintiffs and to send out disciplinary proceeding letters and to hear the matter at the next Executive Council meeting of 3 August 2017. The minutes of the meeting recorded (reference) (DTB 58-9):

1. Meeting started with recitation from “Holy Quaran” [sic]
2. Previous Meeting’s Minutes were confirmed.
3. The eleven cross defendant has agreed that the meetings they conducted were illegal. Disciplinary action against all defendants to proceed immediately.
4. Rasheed Rashid presided over the illegal meeting. Disciplinary action to commence immediately.
5. Illegal committee agreed that they collected money on behalf of BIC to an ANZ account, instruct lawyer to recover that money and return above money to relevant people.
6. Disciplinary action letter to be sent out tomorrow.
7. Regarding Disciplinary action, next EC meeting to be held on 3/8/17 to consider whether to expel members as per list.
…
Attendees:
1. K.A. Talukder
2. Monowar Mirdha
3. Riad Mahmood
4. Syed Aminul Islam
5. Syed Harun-ur-Rashid
6. Ataur Rahman
7. Muhammad Saifuddin Khan
8. Masudul Ahsan

On 17 July 2017 Mr Mirdha and Mr Rashid jointly prepared two letters addressed to Dr Raashed and Mr Mondal respectively (Disciplinary Action Letters) and signed by Mr Rashid (CB2 102-5). Mr Mirdha deposes to have posted these two letters. Mr Mirdha provides receipts of these two letters sent to Dr Raashed and Mr Mondal (CB2 109A). The letter to Mr Mondal stated (CB2 102, 105):

Re: Disciplinary action
We confirm that the Bangladesh Islamic Centre of NSW Inc. (BIC) has held an executive council meeting on 16 July 2017.
At the meeting, the executive council resolved to expel your life membership with the Bangladesh Islamic Centre pursuant to clause 16(a)(iii) of the Constitution. The basis for this is the following;
(a) Conducting a special general meeting on 12 February 2017 which was unconstitutional, invalid, null and void. As agreed by you through your solicitors on 13 June 2017 and the notation made by the court on that day;
(b) The illegal and unconstitutional removal of the current executive council at a special general meeting on 12 February 2017. As agreed by you, through your solicitors on 13 June 2017 and the notation made by the court on that day;
(c) Conducting business as the executive council member of the BIC without authority from 12 February 2017 until the BIC obtained an injunction order in the Supreme Court of NSW against the purported new executive council on 3 May 2017;
(d) Disrupting the usual business of the BIC by conducting meeting on 12 February 2017, and actively playing a role with former life member Kabir Ahmed in the disinterest of the BIC; and
(e) The illegal appointment and acceptance of you to a purported executive council member on 12 February 2017 without authority from the current executive council of the BIC.

Therefore, pursuant to the BIC Constitution, you may address our resolution to the executive council at the meeting to be held on 3 August 2017. The meeting will be held on 3 August 2017, at 6pm 113 Wilbur Street, Greenacre 2190. You may make oral representations to the executive council at the meeting.
You may choose to make written representations to us as well for our consideration. If you choose to make written representations in relation to the resolution, please ensure you send a hard copy of the representations by post prior to the meeting date.
If you fail to do any of the above, the executive council will make a decision in your absence.
Please make sure you post you written representation (if you wish to do so) to the following postal address of BIC:
Bangladesh Islamic Centre of NSW Inc
PO Box 498
Lakemba NSW 2195

The letter to Dr Raashed stated (CB2 103-4):

Re: Disciplinary action of Mr Raashed
We confirm that the Bangladesh Islamic Centre of NSW Inc. (BIC) has held an executive council meeting on 16 July 2017.
At the meeting, the executive council resolved to expel your life membership with the Bangladesh Islamic Centre pursuant to clause 16(a)(iii) of the Constitution. The basis for this is the following;
(a) Conducting and presiding over a special general meeting on 12 February 2017 which was unconstitutional, invalid, null and void;
(b) The illegal and unconstitutional removal of the current executive council at a special general meeting on 12 February 2017;
(c) The illegal and unconstitutional appointment of Executive council members, who were not eligible to be executive council members and violated the Constitution;
(d) Conducting business as the executive council member of the BIC without authority from 12 February 2017 until the BIC obtained an injunction order in the Supreme Court of NSW against the purported new executive council on 3 May 2017;
(e) Disrupting the usual business of the BIC by conducting meeting on 12 February 2017, and actively playing a role with former life member Kabir Ahmed in the disinterest of the BIC; and
(f) The illegal appointment and acceptance of you of a purported executive council member on 12 February 2017 without authority from the current executive council of the BIC.

Therefore, pursuant to the BIC Constitution, you may address our resolution to the executive council at the meeting to be held on 3 August 2017. The meeting will be held on 3 August 2017, at 6pm 113 Wilbur Street, Greenacre 2190. You may make oral representations to the executive council at the meeting.
You may choose to make written representations to us as well for our consideration. If you choose to make written representations in relation to the resolution, please ensure you send a hard copy of the representations by post prior to the meeting date.
If you fail to do any of the above, the executive council will make a decision in your absence.
Please make sure you post your written representation (if you wish to do so) to the following postal address of BIC:
Bangladesh Islamic Centre of NSW Inc
PO Box 498
Lakemba NSW 2195

On 28 July 2017 Mr Islam contacted Mr Mirdha who authorised him to return the $260 to Mr Mondal. This transaction was recorded in a handwritten note wherein Mr Mirdha wrote signed and dated (CB2 119):

I am authorising Mr Akterul Islam to return $260 to Md Younus Ali Mondal which he paid for 13 (thirteen) members previously.
Md Monowar Mirdha
[signed] 28/7/17

On 30 July 2017 upon request of Dr Raashed the Executive Council extended the deadline for submission of membership renewal applications until 11:00am 6 August 2017. Mr Rashid wrote the following letter (CB1 219):

The Executive Council has received a request to extend the expiry date to lodge and submit your annual membership application and membership renewal. We have accepted this request and therefore to attend Annual General Meeting (AGM) 2017 on 27 August 2017, all Membership forms must be received no later than 11am on 6 August 2017 at Suite 3, 129 Haldon Street, Lakemba, NSW 2195. AGM notice will be sent as per the BIC Constitution.
Accordingly, we require that you attend the organised Office at Suite 3, 129 Haldon Street, Lakemba 2195 and renew or apply for membership by hand showing your photo identification with Mr Harunur Rashid the secretary or the secretary’s representative Mohammad Akterul Islam or whoever been appointed as secretary’s representative. Office will be open from Monday to Saturday 10:00am – 11:00am and Sunday by appointment only. Special arrangement can be made by appointment. We respectfully request you attend personally to renew or apply and not any other potential member or any potential candidate for any future elections.

On 31 July 2017 Mr Islam purporting to act on behalf of the BIC refunded the $260 membership fees provided on 21 July 2017 for the Group Membership Request.
On 3 August 2017 the Executive Council of the BIC held its meeting. The Plaintiffs did not appear. It resolved to expel Dr Raashed and Mr Mondal from the BIC. The Executive Council resolved to send two letters to Dr Raashed and Mr Mondal confirming their planned expulsion by 11 August 2017. The letters outlined their rights of appeal which would expire pursuant to clause 16(f) of the Amended Constitution by 11 August 2017 (Expulsion Letters). The minutes of this meeting recorded (DTB 61):

1. Meeting started with recitation from Holy Quran.
2. Previous Meeting’s Minutes were confirmed.
3. No correspondence or letter received from any of the eight members.
4. None of the 8 (eight) members appeared at today’s meeting nor any oral or written representations were made.
5. After further discussion to expel their membership by resolution, EC has confirmed to expel 8 members.
6. BIC to set [sic] confirmation letter to expelled members, also inform them of their appeal rights.
7. EC not to approve any general membership application from the above 12 (twelve) people and for fairness, we will submit those applications to the next AGM.
Attendees:
1. Emamul Haque
2. Muhammad Saifuddin Khan
3. Syed Haru ur Rashid
4. Syed Aminul Islam
5. Masudul Ahsan
6. Ataur Rahmn
7. K A Talukder
8. Monowar Mirdha

On 4 August 2017 Mr Mirdha and Mr Rashid depose to having jointly prepared the two Expulsion Letters as contemplated by the Executive Council on 3 August 2017 and signed by Mr Rashid (CB2 106-8). Mr Mirdha deposes to having posted the two Expulsion Letters to Dr Raashed and Mr Mondal and deposes to having taken receipt of these two letters (CB2 109, 111). The letter to Mr Mondal said (CB2 106):

Re: disciplinary action
We refer to our Executive Council meeting held on 3 August 2017 and confirm that we have not a response to our letter dated 17 July 2017. We confirm that you did not appear at the Executive Council meeting on 3 August 2017.
Accordingly, by resolution the Executive Council has confirmed the resolution to expel your life membership with the Bangladesh Islamic Centre.
We advise that you may wish to exercise your right of appeal under clause 17 of the BIC Constitution. Please note that you may lodge the appeal notice within 7 days from the date of this letter addressed directly to the General Secretary.

The letter to Dr Raashed was likewise dated 4 August 2017 and in exactly the same terms (CB2 108).
From the period 4 August 2017 to 12 August 2017 21 named individuals submitted new membership applications to the BIC. These 21 people were (ASOC [16]):

Mohammed Ferdous Alam;

Dr Waliul Islam;

Mohammad Marouf Khan;

Md. Samchhul Alam;

Md. Sufullah Khalid;

Md. Muktadir Ahmed;

Mrs Nazneen Hossain;

Mr Tanzinur Rahman;

Mrs Siddique Ahmed;

Mr Abdul Bashit;

Mrs Romana Rashid;

Mohammad Sobur Sarder;

Mr Kalim Ahmed;

Dr Soondoos Raashed;

Md. Jahangir Alam;

Mr Kabir Ahmed;

Md. Nurun Nabi;

Mrs Tanzina Khanam;

Mr Md. Abdul Kabir;

Md. Shah Alam; and

Mohammad Khan.

On 5 August 2017 17 further named individuals appeared at the Lakemba office of the BIC and submitted new membership applications to the BIC. These 17 people were (ASOC [20]):

Shahid Uddin Ahmed;

Mohammed Arif Khan;

Mohammed Yeasin;

Harunur Rashid;

Sk Mohammad Anisur Rahman;

MD Dhali;

Mohammed Rashidullah;

Mohammed Hasan;

Dr Mohammad Yousuf;

Moin Murshed Khan;

Sweety Khan;

Mohammed Mozammel;

Sultana Naznin;

Rapsun Panir;

Rupsana Parvin;

Monirul Hoque George; and

Md. Majnul Hoque.

On 6 August 2017 at 11:00am new membership applications and renewal applications to the BIC closed. On that same date the Executive Council of the BIC met to deal with matters relating to the membership applications (DTB 62):

1. Meeting started with the recitation of the “Holy Quran”.
2. Previous meetings’ minutes were confirmed.
3. Applications forms with discrepancies and issues will be rejected and dealt with BIC Constitution.
4. The rest of the applications for membership are approved.
5. Paid renewal memberships are approved.
6. Untraced membership fee will be presented at the AGM.
7. AGM Venue confirmed. First part of AGM venue 220 Lakemba St, Lakemba 10:00am – 12:30pm. Second part of AGM Venue 188 Lakemba St, Lakemba 1:00pm – 5:00pm.
8. Lawrence J Myers [sic] will be acting as the Returning Officer.
9. Food, Security, Venue Rent and other AGM costs will be paid by the BIC.

On 6 August 2017 the Plaintiffs and other signatories requested inspection of the books and records of the BIC (CB1 216-17).
On 11 August 2017 with no appeal forthcoming Dr Raashed and Mr Mondal were expelled from the BIC. On this same date Mr Rashid wrote to a Mr Marouf Hasan Raza (CB1 218):

Dear Mr Raza,
We refer to your letter and request dated 6 August 2017.
We advise that as per clause 51 of the Bangladesh Islamic Centre Constitution, we are amenable to your request for inspection of the books but as per clause 51, we will not allow the documents to be copied by you.
We confirm that a number of your requests are unreasonable in circumstances where there are pending AGM preparation [sic] by the current Executive Council. Many of these documents you have requested will be provided to the Returning Officer once they have been appointed. You are welcome to request such documents from the returning officer directly.

On 11 August 2017 the BIC distributed and publicised notice of its Annual General Meeting planned for 27 August 2017. This distribution was by way of publication to the 447 General Members and Life Members of the BIC.
On 18 August 2017 the Executive Council of the BIC offered to appoint Mr Lawrence Myers solicitor as independent returning officer for the planned Annual General Meeting. Mr Myers accepted.
On 24 August 2017 Dr Raashed filed a Notice of Motion in this matter seeking to restrain the holding of the Annual General Meeting.
On 25 August 2017 the Notice of Motion was heard before Pembroke J who ordered that the BIC be restrained from holding its Annual General Meeting (as had been scheduled for 27 August 2017) until further order and that these proceedings be made before the Expedition List on Friday 1 September 2017.
On 25 August 2017 the Plaintiffs filed Summons seeking inter alia appointment of a receiver and manager to the BIC.
On 8 December 2017 the default judgment of $239,576.65 for the Elzamtar Claim was set aside pursuant to a motion granted by Russell DCJ.
On 6 March 2018 the BIC obtained insurance with QBE Insurance (Australia) Ltd Policy Number AT A172000 PLB (DTB 141).

Parties’ submissions

The Plaintiffs

Expulsion of Plaintiffs

The Plaintiffs allege that they are each life members of the BIC (Closing Submissions [2]).
The Plaintiffs deny they ever received either the Disciplinary Action Letters or the Expulsion Letters alleged to have been sent by Mr Mirdha (Outline of Submissions [41]; Closing Submissions [31]). The Plaintiffs suggest that when meeting in person with members of the Executive Council and in correspondence the members of the Executive Council never mentioned either the Disciplinary Action Letters or the Expulsion Letters, suggesting that they were never in fact sent (Outline of Submissions [42]-[45]).
Particularly the Plaintiffs submit that the two grounds for expulsion provided in clause 16(a)(i) and (ii) of the Amended Constitution are not made out against either of the Plaintiffs (Closing Submissions [13]-23]). The Plaintiffs allege further that the notice requirements of clause 16(c) have not been satisfied by the BIC (Closing Submissions [28]-[43]).
The Plaintiffs also suggest the presumption of section 160 Evidence Act 1995 (Cth) is the most relevant in the circumstances of this case as opposed to section 76 Interpretation Act 1987 (NSW) (Closing Submissions [44]-[46]).
The Plaintiffs therefore deny that there has been any effective expulsion of them as life members of the BIC. Regardless, the Plaintiffs submit they have sufficient interest in the proceedings to constitute standing (Outline of Submissions [49]).

Membership applications and renewals

The Plaintiffs allege the BIC has acted capriciously and contrary to its obligations under the Amended Constitution in respect of membership applications and renewals and notice thereof (Closing Submissions [48]).
The Plaintiffs claim that the BIC has not provided notice of refusals of membership applications as required under the Amended Constitution and has created only limited circumstances in which applications could be received. The Plaintiffs also allege the BIC has acted arbitrarily in refusing valid membership applications and has invalidly exercised its powers under the Amended Constitution (Outline of Submissions [14]).
The Plaintiffs suggest that the BIC has sought to obstruct membership applications to the BIC by limiting the ability of applicants to submit their applications and capriciously refusing to process a substantial number of applications (Outline of Submissions [15]-[16]).
For example the Plaintiffs criticise the BIC’s refusal to accept membership applications that were not provided by the individual personally as artificial and not a requirement of the Amended Constitution (Closing Submissions [50]-[53]). The Plaintiffs also criticise as arbitrary membership refusals on the basis that nominators had not dated their signatures (Closing Submissions [54]-[56]).
The Plaintiffs submit it is clear from the evidence that membership applications were refused purely on the grounds of personal enmity and association with the Plaintiffs (Closing Submissions [61]-[69]; Supplementary Submissions [6]-[7]).
The Plaintiffs also state that insofar as rejection letters sent to applicants referred their case to the Annual General Meeting this offers illusory comfort as the Amended Constitution precludes them from voting at the Annual General Meeting (clause 9(h)). The Amended Constitution also precludes the agitation of membership disputes at the Annual General Meeting (clause 9(i)) (Supplementary Submissions [3]-[4]).
The criterion that application forms have dates next to the nominator and seconder signatures has been applied arbitrarily (Supplementary Submissions [8]-[11]).
Rejections of applications based on participation on the 12 February 2017 meeting has also been arbitrarily applied demonstrating a lack of transparency of decision-making (Supplementary Submissions [16]-[20]).

Financial management

The Plaintiffs allege the BIC’s financial statements have been mismanaged because they have omitted two significant debts owed by the Defendant (Closing Submissions [70]):

The first debt being a judgment debt obtained by Mr Ahmed against the BIC initially for $101,012.24 (since reduced to approximately $70,000) (the Ahmed Claim); and

The second debt being a default judgment debt obtained by Mr Elzamtar against the BIC for $237,781.65 (the Elzamtar Claim).

The Plaintiffs allege the BIC’s financial statements for 2014, 2015 and 2016 incorrectly do not record the Ahmed Claim as a debt (Outline of Submissions [19]).
The Plaintiffs also allege the BIC’s financial statements for 2015 and 2016 incorrectly do not record the Elzamtar Claim as a debt (Outline of Submissions [20]). The Plaintiffs suggest that the then President had knowledge of the Elzamtar claim as of August 2014 and it is implausible that the debt was unknown to the BIC (Supplementary Submissions [30]-[33]).
Contrary to sections 47 and 48 of the 2009 Associations Act the Plaintiffs allege the BIC has failed to produce financial statements that give a true and fair view of its financial affairs (Outline of Submissions [21]-[29]; Closing Submissions [70]).
The Plaintiffs criticise the evidence of Mr Akterul Islam as vague and imprecise and not proving that the BIC fairly represented its financial position (Supplementary Submissions [24]-[29]).
The Plaintiffs criticise the failure of the BIC to prepare or provide financial statements for 2017 (Outline of Submissions [26]; Closing Submissions [89]).
The Plaintiffs also criticise the alleged failure of the BIC to maintain public liability or property insurance despite being a requirement in clause 53 of the Amended Constitution of the BIC (Outline of Submissions [32]). The Plaintiffs concede that it is no longer a statutory requirement to maintain insurance, however insurance was only obtained on the first day of hearing (Closing Submissions [95]-[97]).
The Plaintiffs state these matters raise serious questions about the stewardship of the BIC constitution a beach of section 26(1) of the Associations Act and breach of contract with its members (Closing Submissions [98]).

Receivership

In these circumstances the Plaintiffs allege that the capricious approach of the BIC to membership applications and the failure to accurately record financial statements warrants the appointment of a receiver and manager (Outline of Submissions [51]-[53]).
The Plaintiffs acknowledge however that the Court has a wide discretion to give lesser relief than the appointment of a receiver and manager. The Defendant’s Executive Council has failed to carry out adequately the administrative duties, including allowing Mr Elzamtar to collect donation monies and prepare misstated financial statements.
The Plaintiffs therefore also submit the Court ought to appoint an independent third-party to act as Returning Officer for the Annual General Meeting and interim administrator, proposing the President of the Australian National Imams Council. Alternatively the Plaintiffs would not oppose the appointment of Mr Lawrence Myers (Further Supplementary Closing Submissions [29]-[48]).

Waiver

In response to the issue of waiver of natural justice that arose as a supplementary issue in closing submissions, the Plaintiffs submit that ultimately the Court should find that the Plaintiffs did not receive any expulsion letters and accordingly waiver strictly does not arise. In any event the evidence does not establish the Plaintiffs waived any right to natural justice relating to the alleged expulsion (Further Supplementary Closing Submissions [1]-[16]).
The Plaintiffs deny that they are not entitled to take advantage of alleged defects in the letters of 17 July 2017 to argue in any event the Plaintiff’s’ expulsion is invalid for failure to give adequate notice or natural justice (regardless of whether they received the letters or not).
This is because the Defendant itself had deficiencies in its pleadings and the issue of the invalidity of the letters arose on the evidence. The Defendant cannot rely on the insufficiency of its pleadings to prevent the Plaintiffs raising the issue of the defective nature of the letters of 17 July 2017 (Further Supplementary Closing Submissions [17]-[28]).

The Defendant

Expulsion of Plaintiffs

The Defendant submits the expulsion of the Plaintiffs has been effective as of 11 August 2017 and therefore they have no standing (Outline of Submissions [41]; Closing Submissions [35]). This is because the Defendants submit the Court would find that Dr Raashed and Mr Mondal received the letters dated 17 July 2017 and 4 August 2017 delivered to their homes and that they had chosen to ignore those letters. Mr Mirdha was not cross-examined on his role in posting the letters (Closing Submissions [4]-6]). The evidence including the minutes of the meetings of the Executive Council dated 16 July 2017 and 3 August 2017 outweighs the suggestions Dr Raashed and Mr Mondal did not receive the letters and no attempt was made to test the veracity of the minutes (Closing Submissions [19]-[33]).
The Defendant suggests the exact requirements for disciplining and expelling members from the BIC (including forming the requisite opinion, resolution, service of the notice, service of a further notice of the second meeting and holding the second meeting confirming the expulsion) have been met. Further the Plaintiffs should not be permitted to question the basis of the Executive Council’s decision to expel them for the first time in closing submissions. This has not been raised in pleadings, opening or evidence (Supplementary Closing Submissions [13]-[58]).
The presumption of postal delivery in section 76(2) of the Interpretation Act 1987 (NSW) has not been displaced and the Court would find the Plaintiffs received the letters of 17 July 2017 and 4 August 2017 and their expulsion became effective at midnight of 17 August 2017 (Closing Submissions [34])
The Defendant submits that any of the non-members who claim their applications have been capriciously rejected by the BIC have no standing in these proceedings (Outline of Submissions [104]).
The Defendant further submits that reference to “notice” being given to expelled members pursuant to clause 16 of the Amended Constitution should be read to not require personal service but accommodate the presumption of delivery by post (Further Supplementary Closing Submissions [1]-[5]). The evidence suggests the inference that the Plaintiffs received the letters and were aware of the content of the letters but chose to ignore them. Their evidence would appear to be no more than after the fact rationalisations for their decision to ignore the letters. (Further Supplementary Closing Submissions [6]-[31]).

Membership applications and renewals

The Defendant (or the BIC) submits that the presumption of the regularity of post means that the Plaintiffs cannot allege merely that they did not receive the letters but must prove that the letters were never delivered (Outline of Submissions [20]-[29]). The Defendant submits the Court should find that both the Disciplinary Letters and the Expulsion Letters were delivered to the Plaintiffs on 21 July 2017 and 10 August 2017 respectively (Outline of Submissions [30], [38]). Pursuant to clause 16 of the Amended Constitution the Plaintiffs have been validly expelled from the BIC.
As to the other applicants who have supposedly been capriciously rejected, the Defendant submits that many are in fact members of the BIC and no applicant has been “rejected” in their application has been referred to the Annual General Meeting (Outline of Submissions [62]-84]).
The Plaintiffs filed evidence only in respect of 11 of the 60 individuals pleading in the Amended Statement of Claim and the Plaintiffs have not provided proper particulars for the vast majority of individuals pleaded (Closing Submissions [7]-[10]).
The evidence shows that many of the applicants pleaded in the Amended Statement of Claim have been accepted as members, or are strictly held in abeyance pending an Annual General Meeting due to incomplete applications. In most cases the applicants made no enquiry to the BIC or any formal complaint before these proceedings (Closing Submissions [11]-[12]).
The evidence does not amount to any capricious or arbitrary rejection (or indeed any rejection) of the applicants. Initial receipt and review of the applications was undertaken by volunteers and each application was reviewed individually on its merits (Supplementary Closing Submissions [59]-[69]).
Discretionary factors also militate against the grant of declaratory relief (Closing Submissions [69]-[75]).

Financial management

The Defendant submits its failure to disclose the Ahmed Claim and Elzamtar Claim as debts or liabilities and its financial statements do not give rise to any cause for a receiver or manager (Closing Submissions [16]).
As to the Ahmed Claim the Defendant admits the moneys owed to Mr Ahmed ought to have been recorded as a debt by the BIC (Outline of Submissions [96]). However, the Defendant asserts the debt was extinguished as of 13 June 2017 and there would be no utility in making any order in respect of this debt as it has already ceased to exist (Outline of Submissions [97]-[98]; Closing Submissions [14]-[15])).
As to the Elzamtar Claim by way of default judgment, the Defendant notes that this default judgment was set aside by Russell DCJ on December 2017 (Outline of Submissions [89]; Closing Submissions [13]). As a “Tier 2” body the BIC is not required to disclose or account for such a contingent liability or potential legal claim (Outline of Submissions [90]; Supplementary Closing Submissions [70]-[80]).
The Defendant notes that the Sefton mosque is now covered by public liability insurance and on 2 May 2018 appointed independent auditors to prepare its 2017 financial statements thereby righting any perceived financial mismanagements raised by the Plaintiffs (Outline of Submissions [99]).
The BIC’s bank account was closed to prevent bulk new membership applications and the BIC does now maintains a bank account (Closing Submissions [17]).

Receivership

In the circumstances the Defendant submits even if the Plaintiffs’ points are made out there are numerous discretionary factors which warrant against the relief sought by the Plaintiffs (Outline of Submissions [46]). These factors include the poor conduct of the Plaintiffs in attempting to depose the legitimate Executive Council by way of “shadow” meeting on 12 February 2017 and Dr Raashed’s attempts to seize physical control of the Sefton mosque by force on 7 April 2017. The Defendant also suggests that declaratory relief in the circumstances would be futile (Outline of Submissions [46]).
Moreover the Defendant submits given the meagre revenues of the BIC it is inappropriate to seek to appoint a receiver to the BIC in the circumstances (Outline of Submissions [102]).
The Defendant further emphasises a receiver and manager would be inappropriate and any further third party of their own choosing ignores the fact that the Defendant has already undertaken to appoint Mr Lawrence Myers as returning officer for the next Annual General Meeting (Further Supplementary Closing Submissions [46]-[53]).

Waiver

The Defendant reiterates that the pleadings do not allow the Plaintiffs to raise and rely upon any grounds of the alleged invalidity of the letters sent to them (Further Supplementary Closing Submissions [32]-[39]).
Further in the alternative if the Plaintiffs were to be found to have received the letters, their actions would amount to waiver of the defects of the letters or requirements of natural justice (being a calculated decision not to voice any objection) (Further Supplementary Closing Submissions [40]-[45]).

Legal principles

Appointment of a receiver

The Court has inherent jurisdiction to appoint a receiver and manager to resolve a dispute about the management of property within an organisation, including an association, in addition to jurisdiction under sections 23 and 67 of the Supreme Court Act 1970 (NSW).
Lindsay J summarised the principles relevant to the Court’s jurisdiction to appoint a receiver as a vehicle for a court-supervised election and collected the relevant authorities in Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 (Sengthong) at [170]-[194]. His Honour cited at length a passage from the judgment of Johnson J in McLean v McKinlay [2004] WASC 2 at [23]-[38], which includes the following:

The appointment of a receiver is necessarily an interim measure. In short, the object of the appointment of a receiver is to protect something which may turn out to belong to another: Clydesdale v McManus and Anor (1934) 36 WALR 89 per Northmore CJ, at 90. As the authors of Meagher, Gummow & Lehane observed at 923:
“... one may talk loosely of a receiver of a company, but unless that means receiver of the property (or some of it) of a company the phrase is not only loose but meaningless.”

However, the protection of property, although a necessary part of the remedy, need not be the primary motivation for the appointment of a receiver. The case of Duffy v Super Centre Development Corp Ltd [1967] 1 NSWR 382 is an example of the appointment of a receiver/manager for the primary purpose of resolving a dispute within an organisation, whilst at the same time preserving the organisation's property. The case, which was an action by minority shareholders for a court-appointed receiver under the Companies Act 1961, illustrates the convenience of the remedy pending the resolution of disputes between shareholders. As Street J observed at 383:
“The receiver and manager is appointed as an officer of the Court to undertake in that capacity the management of the business of the company as well, of course, as undertaking the care of the company’s assets.”

In my view, providing there is property to be preserved, this type of equitable relief is available despite the fact that it is primarily being sought to resolve conflicts which it is said seriously prejudice the operation of the organisation.

Natural justice and expulsion from voluntary societies

In Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 O’Connor J considered the application of principles of natural justice to the expulsion of individuals from a “friendly society”. His Honour said (at 255):

I base my decision entirely upon the ground that the decision of the tribunal which purported to expel the plaintiff was arrived at in disregard of one of the fundamental principles of natural justice. It is necessary in the management of a society of this kind to give powers of expulsion. It is necessary also to appoint tribunals for the purpose of dealing with questions of conduct, and the Courts will not interfere with the decisions of these tribunals unless they exceed their powers, and their decision results in injury to property or to civil rights. Whether a domestic tribunal has exceeded its powers is entirely a question of the construction of the contract which creates it. The rules of a society may give power to decide disputes on any principle the members think fit. The rules may be of such a nature as to empower a judicial body to decide in violation of all principles of natural justice. If the parties choose to agree to a tribunal having power of that kind the Courts will not interfere. But in the interpretation of such a contract there are some leading principles to be borne in mind. The first is that in interpreting rules which give jurisdiction to any tribunal there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice.

In the same case Isaacs J observed (at 261):

But in any event it is clear that in the case of a public tribunal the party affected may, if he has knowledge, waive the objection of disqualification. Now, if he can in the case of a public tribunal, of course he can in the case of a private contract. He can waive the objection by his own agreement. The question then becomes – did the plaintiff waive the objection in this instance, if the disqualification existed?

In Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242; [1979] HCA 27 Aickin J applied a similar standard of natural justice to a “warning off” of an individual from a trotting club (at 279):

It follows from what I have said and from the mutual concession that the respondent Club in issuing a warning off notice must comply with the requirements of natural justice and from the fact that it did not in fact comply with those requirements that the resolution of 14th January 1976 must be declared void, its effectiveness having been challenged and indeed not sought to be defended if the resolution and the notice did constitute a “warning off”.

More recently Campbell J (as His Honour then was) in McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [74] and [82] said:

A power to expel from an incorporated club is one where the procedures laid down by the Club’s constituent documents must be strictly complied with, if the expulsion is to be valid. Hamilton J has collected authorities in support of this proposition in Hornby v Narrandera Ex-Servicemen’s Club Ltd [2001] NSWSC 235, at [8]-[10]. Before one can apply that principle in the present case, however, one needs to first construe the rules of the Club, to find what period of notice was required for this particular meeting.
…
Concerning private clubs, it has likewise long been recognised that rules of natural justice apply to the exercise of a power of expulsion: Wood v Woad [1874] LR 9 Ex 190 (expulsion from a ship owner’s mutual insurance society); Fisher v Keane [1879] 11 Ch 353 (expulsion from a gentlemen’s club).

In Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 at [54]-[56] Meagher JA said (with Ward and Leeming JJA agreeing):

The extent to which the principles of natural justice apply to proceedings of a private tribunal depends on the construction of the consensual or other arrangements which empower the tribunal to decide any dispute or matter arising between the parties. It is sufficient in this respect to refer to the decision in Dickason v Edwards (1910) 10 CLR 243 at 250-251 (Griffith CJ), 255-256 (O’Connor J) and 262-263 (Isaacs J).
In interpreting the rules of a friendly society that gave authority to such a tribunal to deal with a question of expulsion for misconduct, O’Connor J observed in Dickason (at 255) that “there is always to be read into [the rules] the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence”. This statement was applied by Dixon J in Australian Workers’ Union v Bowen [No 2] (1947) 77 CLR 601 at 631.
The same general principle applies when determining the extent to which the rules of natural justice apply to a tribunal or other decision-maker constituted by statute. Those rules must, where necessary, give way to any statutory requirements governing the performance of the tribunal’s functions, and cannot be invoked to frustrate the intended operation of the statute: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 89.

In Associations and Clubs Law in Australia and New Zealand (The Federation Press, 3rd ed, 2010) A S Sievers stated (at 62-3):

As the Court of Appeal noted in Young v Ladies Imperial Club Ltd, an association will normally be required to conduct any disciplinary proceedings in accordance with the principles of natural justice unless the principles of natural justice have expressly been excluded by its rules, as had been done in Thorburn v All Nations Club (1975) 1 ACLR 127 (see also McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 at [97]-[99] per Campbell J). These principles will not compel a domestic tribunal set up under the rules of a voluntary association to comply with the standards expected of a court of law or a statutory tribunal. There are no rigid procedural rules which must be followed by domestic tribunals, but the principles of natural justice do require a minimum standard of due process. At the very least, a person must be told the nature and details of the offence with which he or she is charged, given notice of the hearing, an opportunity to be heard in her or his own defence and be judged by a fair and unbiased tribunal. In Calvin v Carr (1979) 22 ALR 417 at 432 (PC) Lord Wilberforce said that these were the essential elements which must always be observed and commented that it was “inevitable and must be taken to be accepted that there may not be time for procedural refinements”.

Both the 1984 Associations Act and the 2009 Associations Act, although leaving each registered organisation the choice of their own idiosyncratic rules, nonetheless require certain matters to be addressed in those rules. The underlying policy in the legislation making such a requirement is clearly for the purposes of ensuring proper governance, as reflected in section 3 of the 2009 Associations Act. Here no question arises as to a possible disconnect between the Amended Constitution and the Model Constitution, or any matters not addressed by the Amended Constitution.

Presumption on the regularity of mail

The Amended Constitution of the BIC at clause 6(c) states “[t]he provision of the Interpretation Act 1987 apply to and in respect of these rules in the same manner as those provisions would so apply if these rules were an instrument under the Act”.
Section 76 of the Interpretation Act 1987 (NSW) provides:

76 Service by post
(1) If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:
(a) may be effected by properly addressing, prepaying and posting a letter containing the document, and

At the conclusion of the meeting it was resolved to confirm the resolution made on 16 July 2017 to expel Mr Mondal and Dr Raashed and to send letters the following day accordingly and informing them of their rights of appeal.
Mr Rashid again dictated the two letters to Mr Mirdha who then read them out in Bengali to the effect of what he had written in English. Mr Rashid then signed the letters.
Mr Rashid asked Mr Mirdha “can you please send these tomorrow to Yunus Ali Mondal and Dr Rashid Raashed” and Mr Mirdha said “yes I will”. The BIC retained Australia post receipts for the letters sent on 17 July 2017 and 4 August 2017 and attached to Mr Rashid’s affidavit.
On or about 6 August 2017 there was a meeting of the Executive Council. In respect of a number of membership applications the Executive Council resolved to reject the applications. Mr Rashid had dictated letters to Mr Mirdha addressed to Mr Mohammad R K Chowdhury on 17 July 2017, addressed to Mr Shah Alam on 7 August 2017 and addressed to Mr K M Omar Hayet on 17 July 2017.
There was an alleged deficiency in Mr Mohammad R K Chowdhury’s membership application form (although not clearly outlined in Mr Rashid’s affidavit).
Mr Shah Alam’s application form did not have the dates of the signatures of the nominator and seconder.
Mr Hayet had submitted two application forms on 15 July 2017 and 26 July 2017 and the second form was paid by bulk fee.
On 6 August 2017 the Executive Council resolved to reject the applications of Mr Mohammad R K Chowdhury, Mr Shah Alam and Mr K M Omar Hayet and deal with them according to clause 9(c) of the Amended Constitution and refer them to the Annual General Meeting.
Mr Rashid was cross-examined on why he did not mention the expulsion of Dr Raashed and Mr Mondal in his affidavit of 24 August 2017 (T394/44-T395/2). He said this was because the affidavit related to a different problem (T397/11-13).
Mr Rashid denied knowing about the Elzamtar default judgment against the BIC prior to when Mr Elzamtar went to court in approximately 2016 or 2017 (T402/9-17).
He admitted Mr Elzamtar still collects donations on behalf of the BIC (T402/36-43). However he said the Executive Council had just had oral discussions saying they would penalise Mr Elzamtar later on (T402/45-47). These discussions were not recorded in writing and were not final discussions (T403/1-12).

Consideration

Witnesses generally

I am of the view that language difficulties aside each of the witnesses on both sides attempted and did in general terms give their evidence truthfully. Dr Raashed in particular however gave his evidence in a somewhat argumentative fashion. It is clear he is very emotional and dissatisfied at the direction the BIC has taken in recent times. His manner in giving his evidence had the capacity to interrupt the flow of the proceedings. In the end I accept he did his best to give truthful evidence.
I note however there were other inconsistencies between the witnesses’ evidence such as whether or not Mr Mondal requested Mr Akterul Islam for him to return $260 to him. There were other inconsistencies between the witnesses both called for the Plaintiffs and the Defendant.
Importantly however I am of the view that to the extent that those witnesses’ accepted or denied they received letters from the BIC (as distinct from whether or not those letters were sent) I accept their evidence. Other inconsistencies aside, to the issue of the receipt of the letters I am of the view the witnesses attempted to give truthful evidence and I accept their acceptance or denial of receipt of the letters as the case may be.

Expulsion of the Plaintiffs

I note at first that in respect of the Plaintiffs, the Defendant has denied that Dr Raashed and Mr Mondal have standing to maintain their cause of action because they are not members of the Defendant. For example this was pleaded at some level of generality in paragraph 4(a)-(c) of the Defence filed 26 October 2017 for the BIC. This allegation is obviously based upon the assumption they were validly expelled from the BIC in August 2017.
However with respect to the issue of standing neither party on one view took the issue on the pleadings beyond a contest over whether or not the Plaintiffs were expelled as life members of the BIC. The Defendant contended that letters dated 17 July 2017 and 4 August 2017 had been delivered to Dr Raashed and Mr Mondal and that they had chosen to ignore those letters effectively expelling them from the BIC. The Plaintiffs on the other hand denied they ever received such letters.
It was further only in closing submissions that the alleged invalidity of the letters sent to Dr Raashed and Mr Mondal on 17 July 2017 and 4 August 2017 purporting to notify them of the Executive Council’s resolution to expel them as life members from the BIC was raised (see for example Plaintiffs’ Closing Submissions [8]-[47]).
Further the Plaintiffs in closing submitted that the letters dated 17 July 2017 did not precisely articulate whether Dr Raashed and Mr Mondal were expelled on the basis of persistent refusal or neglect to comply with a provision of the Amended Constitution or on the basis of persistently and wilfully acting in a manner prejudicial to the interests of the BIC (per clause 16(a)(i) and (ii) of the Amended Constitution).
The letters only refer to the basis for expulsion being Dr Raashed and Mr Mondal’s attendance at the 12 February 2017 meeting. In support certain factual matters are adverted to at a very general level.
As a matter of fairness I am of the view it is too late for the Plaintiffs to rely on the invalidity of the letters as not strictly complying with the requirements of clause 16 of the Amended Constitution.
The invalidity issue was of course an entirely new case. It proceeds on one view on an alternative case theory that the Plaintiffs did receive the letters but they were invalid. This alternative case theory was not developed with sufficient clarity nor was the Defendant given sufficient opportunity to test the alternative case theory on the evidence such as through cross-examination.
As observed by Allsop J (as His Honour was then) in White v Overland [2001] FCA 1333 (at [4]) any “practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly”. Had the Defendant been on notice of this alternative case theory issues such as waiver of the strict requirements of notice or the audi alteram partem rule may or may not have been open to the Defendant.
In Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ and Wilson, Brennan and Dawson JJ); [1988] HCA 12 it is evident on one view that the way a case is run may allow issues not raised in pleadings to be raised on the evidence but this requires a consideration of the actual conduct of the proceedings. It is important to consider when and how the parties were put on notice of the pleadings and any issues arising from them.
Without criticism of either side the Plaintiffs cannot be permitted to raise the invalidity of the notice contained in the letters of 17 July 2017 (and to the extent relevant those of 4 August 2017) sent to the Plaintiffs Dr Raashed and Mr Mondal.
However for the reasons which follow in any event it is unnecessary for me to determine whether these notice letters of 17 July 2017 (and the later letters of 4 August 2017) are invalid or valid as the case may be according to the requirements of clause 16 of the Amended Constitution. It is also unnecessary for me to form a view on the precise requirements of clause 16 of the Amended Constitution or the precise grounds for expulsion by the Executive Council of members under clause 16(a)(i) and (ii). Admittedly the letters of 17 July 2017 typed by Mr Mirdha with Mr Rashid dictating do not specify the precise grounds of clause 16(a)(i) and (ii) nor refer to any conduct of Dr Raashed and Mr Mondal that was “persistent”, and arguably that should have been done.
I note in passing a notice under clause 16 should identify the precise grounds under either 16(a)(i) and (ii) for expulsion to give the recipient the opportunity to know what case they are facing, particularly as expulsion from the BIC would undoubtedly have serious consequences not limited to loss of reputation. Ideally such a notice should fairly and expressly outline what behaviour consists of persistent conduct warranting expulsion. As I have said the invalidity of the notices sent to Dr Raashed and Mr Mondal was not fully developed and should not be raised as a matter of substance.
It is as I have said unnecessary for me to resolve these construction issues concerning the validity of the letters because I am satisfied on balance neither Dr Raashed nor Mr Mondal received the letters.
There is a presumption of delivery incorporated into the Amended Constitution of the BIC for example by clause 6(c) which provides the provisions of the Interpretation Act 1987 (NSW) apply to its regulations. Clauses 38 and 52 of the Amended Constitution also mirror closely the presumption of postal delivery that notice may be given to individuals by posting to their address and is taken to having been given or served following the number of days required for the ordinary course of post. I should say “notice” in clause 16 is a notice to which clause 52 applies.
This presumption, whether articulated in the language of section 76 of the Interpretation Act 1987 (NSW) of “unless evidence sufficient to raise doubt” or the language of clause 52 of “unless the contrary is proved”, is clearly rebuttable.
I am of the view that the evidence is sufficient to raise doubt and evidence to the contrary established that Dr Raashed and Mr Mondal did not receive the letters of 17 July 2017 and 4 August 2017.
Again I note in fairness it is accepted by the Plaintiffs that the letters were posted and receipts were taken by Mr Mirdha on behalf of the BIC (transcript reference 20 June 2018). I also acknowledge the corroborative evidence of Mr Mirdha and Mr Rashid who both said that the letters were written and posted and the minutes of the Executive Council provided which state for example the “[d]isciplinary action letter to be sent out tomorrow” (DTB 58-9; 61).
It was put to both Dr Raashed and Mr Mondal that they received the letters of 17 July 2017 and 4 August 2017 and chose to ignore them (T113/35-50; T114/5-30; T133/15-25; T126/32-50). They both denied ever receiving these letters.
Although I intend no criticism it was not put to either Dr Raashed or Mr Mondal that their motivation for choosing to ignore the letters was that they did not recognise the current Executive Council of the BIC and were indignant at its very authority. Dr Raashed himself admitted that he saw the BIC as his “child”.
It is clear that Dr Raashed and Mr Mondal have foregone a case or argument in proceedings before Parker J that the meeting of 12 February 2017 was valid and / or their participation in it lawful. It is accepted by them that the current Executive Council is validly elected in accordance with the Amended Constitution (T434/49-T435/5).
This does not remove their obvious and public dissatisfaction with the Executive Council of the BIC.
Given the confrontational attitude of Dr Raashed and Mr Mondal evident to me in cross-examination and the history of their involvement in the BIC, it is tolerably clear in my view that had they received the letters of 17 July 2017 and 4 August 2017 they would have made some argument about them.
The Plaintiffs Dr Raashed and Mr Mondal were certainly at odds with the Executive Council and I am satisfied that had they received the letters it is unlikely in my view that they would not have taken issue with them.
The Plaintiffs had taken a confrontational approach for example in the proceedings before Parker J. They also took a confrontational approach to their participation in these proceedings. It is much more likely that they would have retaliated in some public or positive way had they received the letters of 17 July 2017 or 4 August 2017. Their indignation would not have been passive or hidden from view.
There is clearly no evidence of any such confrontation in relation to the letters and both Dr Raashed and Mr Mondal consistently denied on oath ever receiving the letters or having knowledge of them. I am satisfied they did not receive the letters. Given the serious consequences of receipt of the letters I am of the view that presumption of delivery of the letters has been rebutted.
In addition a number of other deponents despite cross-examination to the contrary denied ever receiving letters sent to them by the BIC. Whilst I accept a number did accept they received letters from the BIC it is clear on the evidence that there are a number of concerns regarding whether letters were received by applicants and members to the BIC.
As is clear in clause 16(b) of the Amended Constitution the resolution to expel Dr Raashed and Mr Mondal is to have no effect until service via the letters.
As I am of the view that neither Dr Raashed nor Mr Mondal received the letters it follows that the resolution to expel them as of 16 July 2017 is of no effect and both are therefore still life members of the BIC.

Membership applications and renewals

With respect to the twelve deponents for the Plaintiffs (other than Dr Raashed and Mr Mondal themselves) I am of the view that it is strictly not necessary to decide whether these applicants ever received letters rejecting their applications or referring their applications to an Annual General Meeting or otherwise.
I will nonetheless make findings of fact in relation to the twelve deponents.
With respect to Mr Md. Abdul Gofur:

Mr Gofur is a member of the BIC.

He did not submit a membership application. He assisted his wife and brother-in-law submit membership applications on 4 and 5 August 2017.

He admitted his wife received an acceptance of her application. She is a member.

With respect to Mr Motahar Ali:

He is a life member of the BIC.

He submitted membership applications on behalf of his wife and two sons on 15 July 2017. He paid $60 on their behalf on 29 July 2017.

He denied that either his wife or two sons received any letters rejecting their applications.

On balance I am prepared to accept the letters were not received.

With respect to Mr Kabir Ahmed I am satisfied:

Having been expelled from the BIC he made applications for general membership on 13 June 2017 and 12 July 2017.

He received a rejection letter dated 17 June 2017 which was attached to his affidavit (CB1 158). This letter purported to refer his application to the upcoming Annual General Meeting for consideration as the Executive Council had unanimously decided his application would be in breach of clause 8(a) of the Amended Constitution.

He admitted he received a rejection letter on 17 July 2017. This letter noted he had already applied for membership which had been referred to the upcoming Annual General Meeting.

With respect to Mr Mohammad Samchhul Alam:

He submitted a membership application for the first time on 22 July 2017 and paid $20.

A rejection letter was sent on 1 August 2017 addressed to him (Exhibit D12 9). It informed him that the Executive Council had resolved to reject his application on the basis that he had participated in the invalid meeting of 12 February 2017. His application would be referred to the upcoming Annual General Meeting.

He denied ever receiving such a letter. Again I am prepared on balance to accept this evidence.

With respect to Mr Ferdous Alam:

He submitted a membership application on 15 July 2017 having had his membership expired on 30 June 2014.

A rejection letter was sent on 17 July 2017 addressed to him (Exhibit D12 4). It informed him that the Executive Council had resolved to reject his application on the basis that he had participated in the invalid meeting of 12 February 2017. His application would be referred to the upcoming Annual General Meeting.

He denied ever receiving such a letter. I am prepared to accept his denial.

With respect to Mr Abdul Bashit:

He submitted a membership application on 5 August 2017 and paid $20.

A rejection letter was sent on 7 August 2017 addressed to him (Exhibit D12 21). It said that the Executive Council had found discrepancies in his application in that it was incomplete and therefore rejected. The Executive Council would “deal with your application as per the Bangladesh Islamic Centre Constitution”.

He denied every receiving such a letter but admitted speaking to Mr Mirdha who told him his form was incomplete because dates were missing. I accept his evidence that the letter was not received.

With respect to Mr Md. Tanjinur Rahman:

He submitted a membership application on 22 July 2017 and paid $20.

He received a rejection letter dated 7 August 2017 which was attached to his affidavit (CB1 193). It said that the Executive Council had found discrepancies in his application in that it was incomplete and therefore rejected. The Executive Council would “deal with your application as per the Bangladesh Islamic Centre Constitution”.

He admitted receiving this rejection letter.

With respect to Mr Mohammed Mueen Uddin:

His membership with the BIC has expired.

He submitted a membership application on 5 August 2017 and paid $20.

After receiving a phone call from Mr Haque he received a rejection letter dated 7 August 2017 which was attached to his affidavit (CB1 154). It said that the Executive Council had found discrepancies in his application in that it was incomplete and therefore rejected. The Executive Council would “deal with your application as per the Bangladesh Islamic Centre Constitution”.

He admitted receiving this rejection letter.

With respect to Mr Mohammad R K Chowdhury:

He submitted a membership application on 15 July 2017 and Mr Mondal paid $20 on his behalf on 21 July 2017.

A rejection letter was sent dated 17 July 2017 addressed to him (DTB 172). It informed him that the Executive Council had found a discrepancy in his application in that the seconder did not personally sign the document. It requested him to contact the BIC office as a matter of extreme urgency and provide a statutory declaration of the seconder confirming he signed.

A further rejection letter was sent on 7 August 2017 (DTB 175). It said despite as requested the BIC had not received the statutory declaration. His application would be referred to the upcoming Annual General Meeting.

He admitted receiving the rejection letter dated 17 July 2017.

With respect to Mr K M Omar Hayet:

He submitted a membership application on 17 July 2017 and Mr Mondal paid $20 on his behalf on 21 July 2017.

He submitted a second membership application on 26 July 2017 (DTB 167).

A rejection letter was sent dated 17 July 2017 addressed to him (DTB 166). It informed him that the Executive Council had found a discrepancy in his application in that the seconder did not personally sign the document. It requested him to contact the BIC office as a matter of extreme urgency and provide a statutory declaration of the seconder confirming he signed.

A further rejection letter was sent on 7 August 2017 (DTB 169). It said despite as requested the BIC had not received the statutory declaration. His application would be referred to the upcoming Annual General Meeting.

He admitted receiving one letter but denied receiving the letter dated 7 August 2017. I accept his evidence that he did not receive the letter dated 7 August 2017.

With respect to Mr Muktadir Ahmed:

Mr Ahmed had previously been a member of the BIC but had been unable to renew his membership. He submitted a membership application on 12 July 2017 but Mr Islam did not accept the $20.

He received a rejection letter dated 17 July 2017 which was attached to his affidavit (CB1 180). It informed him that the Executive Council had resolved to reject his application on the basis that he had participated in the invalid meeting of 12 February 2017. His application would be referred to the upcoming Annual General Meeting.

He admitted receiving this rejection letter.

With respect to Mr Md. Shah Alam:

Mr Alam was a lapsed member of the BIC who submitted his membership application form on 3 August 2017 and paid $20.

He received a rejection letter dated 7 August 2017 which was attached to his affidavit (Exhibit D12 34). It said that the Executive Council had found discrepancies in his application in that it was incomplete and therefore rejected. The Executive Council would “deal with your application as per the Bangladesh Islamic Centre Constitution”.

He admitted receiving this rejection letter.

To the extent that a number of the twelve deponents accepted receiving a notice rejecting their application as I have said I am inclined to accept their evidence.
There is no reason not to accept their sworn testimony on this point.
Therefore for those deponents who denied ever receiving said letters I also accept their evidence. Although counsel for the Defendant did cross-examine a number of the deponents on whether they received these rejection letters, in my view it is unlikely that each of them is telling an untruth. They may clearly be dissatisfied with the current Executive Council and the BIC. However in my view it is unlikely that these individuals independently of each other conspired to lie about never receiving said letters.
I am of the view that clearly some issue or problems occurred with the sending of letters from the BIC by post to the applicants.
Importantly however considering that the letters either referred the applications to the Annual General meeting or stated they would deal with the application as per the Bangladesh Islamic Centre Constitution I am of the view these letters simply provide a mechanism that holds the outcome of the applicants’ membership in abeyance. In any event the Annual General Meeting and time for applications to be finalised with the BIC has come and gone and all of the letters purporting to reject applications are now of no effect or utility.
To this extent it is not necessary conclusively to decide whether the twelve deponents did or did not receive the letters. Those individuals who are members (including for example Mr Gofur and Mr Ali) are still members of the BIC. Those individuals who are not members of the BIC are still not members of the BIC.
Their applications regardless of the letters are held in abeyance and it is open to each of the applicants to apply for membership to the BIC when applications for membership are open. Notice by the BIC may be given afresh so that everyone is aware of the possibility of applying to be general members of the BIC.
In passing I should note I am of the view those letters referring applications to the Annual General Meeting are of no effect as the Amended Constitution expressly provides that the Annual General Meeting shall not deal with membership disputes. To be precise clause 9(i) provides “[n]o membership dispute shall be dealt with on the day of the Annual General Meeting” and it is quite clear those letters fall foul of that express provision. The Amended Constitution is quite clear that Annual General Meetings are the inappropriate forum for membership disputes.
I am not persuaded in any event whether the letters have any real effect in that they simply confirm the membership applications of the deponents have not been accepted and are in effect held in abeyance. As I have said those deponents (excluding Dr Raashed and Mr Mondal) who are members are still members and those who are not members are still not members. It is open for them to submit their applications afresh when appropriate.
On the other hand I am not persuaded on the evidence the Executive Council has acted capriciously and the referral of the deponents’ applications is not sufficient to amount to any capricious or arbitrary “rejection” of applications. The BIC has discretion as to whom it may choose to admit as a member. Further in my view on the evidence the current Executive Council has genuinely attempted to deal with each of the membership applications and there is no evidence establishing capricious conduct warranting the appointment of a receiver and manager. I do not accept personal enmity or association with either of the Plaintiffs has been proven to be the motivation for the Executive Council in sending these letters and purporting to reject a number of applications.

Financial management

In my view whether the BIC is a Tier 1 or Tier 2 organisation for the purposes of the 2009 Associations Act and the Associations Incorporation Regulation 2016 (NSW) was not clearly tested on the evidence. However it is clearly an organisation with limited revenue drawn entirely from comparatively modest donations from members and does not meet the requirements of a Tier 1 organisation (being total revenue for more than $250,000 or current assets more than $500,000) (see regulations 8-10 of the Associations Incorporation Regulation 2016 (NSW)).
However Tier 2 organisations still must prepare financial statements as is clear in regulation 10 of the Associations Incorporation Regulation 2016 (NSW) which provides:

10 Financial statements for Tier 2 associations
For the purposes of section 47 (2) of the Act, the financial statements prepared by a Tier 2 association must include the following:
(a) an income and expenditure statement and a balance sheet that sets out the appropriately classified individual sources of income and individual expenses incurred in the operation of the association and the assets and liabilities of the association,
(b) details of any mortgages, charges and other securities affecting any property owned by the association,
(c) a separate income and expenditure statement and balance sheet for each trust for which the association is the trustee.

As is clear in the 2009 Associations Act section 47(2) the requirement of associations is that the “financial statements must give a true and fair view of the association’s affairs and must deal with such matters as are prescribed by the regulations”.
With these requirements in mind I am of the view in an ideal world the BIC should have prudently recorded both the Elzamtar Claim and the Ahmed Claim in their financial statements. Mr Islam in evidence gave a view as to different disclosure requirements for Tier 1 and Tier 2 associations of contingent liabilities such as debts to which he adverted to legal advice given to the BIC (but not to him personally). I note neither side sought to provide an independent expert accountant for example.
I am nevertheless of the view that it would have been prudent and desirable for the BIC to include the claims made against them and which in fact resulted in garnishee payments in respect of the Ahmed Claim for example. Either as recorded in the balance sheet or as a note to the financial statements these claims should have been recorded as a matter of at least best practice
However on the evidence the Elzamtar Claim and Ahmed Claim are now no longer being pressed against the BIC in the sense that there are no continued attempts to recover the debts. The Elzamtar Claim in the form of default judgment has been set aside and the balance of the Ahmed Claim has been waived.
Likewise clause 53 of the BIC’s Amended Constitution suggests at least that it would have been prudent for the BIC to have public liability insurance. However the BIC has now submitted that it does now have public liability insurance. The BIC has also submitted on 2 May 2018 it appointed independent auditors to prepare its 2017 financial statements thereby righting any perceived financial mismanagements raised by the Plaintiffs (Outline of Submissions [99]).
On the evidence before me these financial management issues are not I consider symptomatic of any greater problem with the Executive Council or the BIC in general. In fact in cross-examination the witnesses for the Defendant although not financial experts displayed an interest prudently in managing the finances of the BIC according to its needs. The problems associated with the financial statements and insurance have now been rectified and I repeat I have formed the view on the evidence that these financial issues are not symptomatic of any greater problem with the BIC.

Conclusion

With all of the above in mind in my view the appointment of a receiver and manager or interim supervisor to the BIC would be disruptive and unnecessary. As is clear from my reasoning above the facts adverted to by the Plaintiff do not indicate in my view any conduct of the Executive Council that seriously prejudices the BIC.
The Plaintiffs Dr Raashed and Mr Mondal were not validly expelled from the BIC and hence remain life members.
The notices of rejection were received by some of the deponents for the Plaintiffs however some did not receive any notice of rejection. In any event their applications are strictly held in abeyance and those who are not members are capable of applying afresh to the BIC.
Prudence would have dictated the recording of the Elzamtar Claim and Ahmed Claim in the financial statements of the BIC and the taking out of public liability insurance. However these issues have been rectified and the evidence does not establish any financial problems symptomatic of ongoing financial mismanagement of the BIC.
The Executive Council has suggested that if a receiver were to be appointed a Mr Lawrence Myers would be appropriate and in passing I note some objection may be made to Mr Myers’ suitability. However there is no evidence as to the suitability of Mr Myers or otherwise before me and I believe in any event the facts do not provide any basis for appointing a receiver.
The appointment of a receiver in this case is therefore not appropriate and I reject those orders sought by the Plaintiff in the Amended Statement of Claim filed 6 March 2018 to that effect.
I will however hear the parties on the final form of any orders or declarations sought and on the question of costs if those cannot be agreed.

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Decision last updated: 29 June 2018

Medium Neutral Citation:	Rashid Raashed v Bangladesh Islamic Centre of New South Wales Inc [2018] NSWSC 1001
Hearing dates:	6, 7, 8, 9 March 2018, 28, 29, 30, 31 May 2018, 1, 5, 20 June 2018
Decision date:	29 June 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See paras [481]-[487]
Catchwords:	VOLUNTARY ASSOCIATIONS – associations and clubs – general matters – appointment of a receiver and manager – alleged expulsion of members and rejection of applicants to association – alleged financial mismanagement – circumstances warranting appointment of receiver and manager
Legislation Cited:	Associations Incorporation Act 1984 (NSW) Associations Incorporation Act 2009 (NSW) Associations Incorporation Regulation 2016 (NSW) Evidence Act 1995 (Cth) Interpretation Act 1987 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Agricultural Societies Council of NSW v Christie [2016] NSWCA 331 Ahmed v Chowdhury [2012] NSWSC 1452 Chowdhury v Bangladesh Islamic Centre of NSW [2008] NSWSC 1073 Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd (2012) 203 FCR 70; [2012] FCA 346 Deputy Commissioner of Taxation v Meredith (2007) 229 FLR 243; [2007] NSWCA 354 Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80 Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242; [1979] HCA 27 House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc [2009] NSWSC 817 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; [2005] NSWCA 4 McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470 McLean v McKinlay [2004] WASC 2 Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; [2012] NSWCA 168 Sengthong v Lao Buddhist Society of NSW Incorporated [2016] NSWSC 1408 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 White v Overland [2001] FCA 1333
Texts Cited:	A S Sievers, Associations and Clubs Law in Australia and New Zealand (The Federation Press, 3rd ed, 2010)
Category:	Principal judgment
Parties:	Rashid Raashed (First Plaintiff) Md Yunus Ali Mondal (Second Plaintiff) Bangladesh Islamic Centre of NSW Inc (Defendant)
Representation:	Counsel: P Horobin (Plaintiffs) J Zmood (Defendant) Solicitors: MIC Lawyers (Plaintiffs) Executive Legal (Defendant)
File Number(s):	2017/258940
Publication restriction:	n/a