The Muslim League of New South Wales Inc v Hussein Waniya
[2000] NSWSC 986
•13 October 2000
CITATION: The Muslim League of New South Wales Inc v Hussein Waniya [2000] NSWSC 986 CURRENT JURISDICTION: Equity Division
Commercial ListFILE NUMBER(S): SC 50122/2000 HEARING DATE(S): 13 October 2000 JUDGMENT DATE: 13 October 2000 PARTIES :
The Muslim League of New South Wales Inc (P)
Hussein Waniya (D)JUDGMENT OF: Young J
COUNSEL : G D Wendler (P)
J Ralston (D)SOLICITORS: Van Houten (P)
Pigott Stinson Ratner Thom (D)CATCHWORDS: ASSOCIATIONS & CLUBS [46]- Incorporated associations- Meetings- Notice to "upgrade" requisitioned meeting to annual general meeting LAW REFORM- Technical slips re convening meetings- Associations Incorporation Act should include a provision akin to s 1322 of Corporations Law MEETINGS [4]- Notice- Notice to "upgrade" special general meeting to annual general meeting- Valid in circumstances. LEGISLATION CITED: Associations Incorporation Act 1984 DECISION: Summons dismissed.
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
YOUNG J
FRIDAY 13 OCTOBER 2000
50122/2000 - THE MUSLIM LEAGUE OF NEW SOUTH WALES INC v HUSSEIN WANIYA
JUDGMENT
1 HIS HONOUR: This is the final hearing of proceedings challenging the validity of a purported meeting of the plaintiff which was held on 10 September 2000.
2 The plaintiff is an association incorporated under the Associations Incorporation Act 1984 (the “Act”). Up until at least 10 September 2000 Mr Afroz Ali, who has instructed the solicitor for the plaintiff, was the acting general secretary of the plaintiff.
3 There had been several attempts to hold an annual general meeting as required by the Act and the plaintiff's constitution, the last attempt being on 2 July 2000, which did not proceed. Mr Afroz Ali says this was because a quorum could not be determined.
4 17 July 2000 is the date of a communication sent to the Chairman, known as the Sadar-E-Majlis, which was received by him on or about 25 July 2000, requesting that the special general meeting which was the subject of a requisition of, on the face of it, fifty members, be upgraded to an annual general meeting. The communication had appended to it the signatures of a large number of people. Mr Wendler for the plaintiff says that it is apparent on the face of it that there is some suspicion about some of the signatures because identical names and phone numbers appear on the list. Whether that be so or not, there would still appear to be about fifty people who appended their names to the requisition. The requisition was supported by a cheque for $500. The Sadar-E-Majlis on 27 July 2000 instructed Mr Afroz Ali to convene a special general meeting which would be upgraded to an annual general meeting, and indicated in his letter that he was satisfied that the issue was of public importance.
5 The acting secretary declined to call the meeting but the same was purportedly convened by a notice dated 24 August 2000. The meeting was to be held on 10 September 2000, which was approximately 17 days after the date of that notice.
6 On 7 September 2000 the plaintiff applied to me as the then Duty Judge for an injunction to prevent the meeting being held. I declined to allow the summons to be filed in court on the basis that, as a general rule, this Court does not prevent people from meeting and discussing matters of mutual concern. What it does is allow the meeting to proceed and then, if it is necessary, make declarations of invalidity. The summons was filed the same day for some unknown reason in the Commercial List and made returnable today.
7 It is arguable that at the time the summons was issued Mr Afroz Ali could have instructed solicitors to sue in the name of the plaintiff. He could only still maintain these proceedings if he had not been displaced from office on 10 September 2000. This makes it procedurally difficult. The defendant indicated in a letter that Mr Afroz Ali was not entitled to instruct solicitors on behalf of the plaintiff after 10 September 2000, but because of the procedural complications the defendant considered it was appropriate that the matter be tested on the merits rather than on any procedural issue alone.
8 Mr Wendler points to the constitution of the plaintiff, particularly clauses 21 and 22. Clause 21 provides that the annual general meeting is to be held within eight weeks of the end of the financial year or such time as the President in consultation with the Executive Committee shall fix. Clause 22 gives power to the Executive Board or the Executive Committee and also to fifty members or ten percent of the membership whichever is greater to requisition a special general meeting. Any requisition made by members is to state the purpose of the meeting, to be accompanied by a deposit of $500 and to be signed by the petitioners. Such requisition is to be submitted to the Sadar-E-Majlis and upon that person being satisfied that it is a matter of public importance, he is to issue a certificate to that extent (sic) to the general secretary who is then to convene a special general meeting.
9 The evidence is that there are 686 members of the plaintiff. There is also evidence that 318 members actually attended the meeting on 10 September 2000, a quorum being 227.
10 The evidence is that the meeting of 10 September 2000 proceeded in an orderly fashion and, if it was a valid meeting, it elected officers including a general secretary who is a person other than Mr Afroz Ali.
11 The question then is whether the meeting was validly convened and held.
12 As I have remarked before, it is hard to understand why the legislature has not included in the Act a provision identical to section 1322 of the Corporations Law allowing the Court to ignore or remedy technical difficulties in meetings, especially when one has a large gathering, such as the present meeting which involved over six hundred members, and the chances of making a technical slip are very great. I would again urge the government to reconsider this matter. However, that is of no assistance in the present case except, as Mr Ralston for the defendant properly and rightly submits, it is a matter I can take into account when declining in my discretion to make a declaration if the matter is of such a technical nature that the plaintiff ought not succeed. However the problem with that is that if there is a real difficulty in the appointment of officers, and those officers have to deal with property, third parties may challenge their appointment later and the validity of those transactions.
13 The constitution of the plaintiff does differentiate between an annual general meeting and a special general meeting. Under the constitution an annual general meeting can only be convened with the co-operation of the President and the Executive Committee. A special general meeting could be the subject of a requisition. The Model Rules for Incorporated Associations, which are in evidence, and which are at least to some extent included in the constitution of the plaintiff, provide again for annual general meetings under rules 23 and 24 and special general meetings under rule 25.
14 The only power to requisition a meeting is for a special general meeting. What happened in this case was that such a meeting was requisitioned with a plea that that meeting be upgraded to an annual general meeting. The term "upgraded" is not one that is at all familiar in the law of corporations.
15 However, one must not be overly technical about notices in relation to meetings and I think that proposition, which is true enough under the Corporations Law, is a fortiori the case under the Act. One must look at the notice convening the meeting and read it sensibly as it would appear to a person reading it as a lay person without legal training and ask, “is that person informed as to what is the purpose of the meeting?” It was clearly stated in the notice dated 24 August 2000 that a special general meeting had been requisitioned and that a motion would be put at the meeting that it be an annual general meeting. This was the only way in which the meeting could be convened, and in my view, it was valid to do it in that way.
16 Accordingly, the only possible defect is if the point can be taken that there was no certificate issued by the Sadar-E-Majlis that he was satisfied that the matter was a matter of public importance. A certificate is merely an assertion that someone says something is correct: it is not necessary to use the word "certificate" or "certify". It seems to me that the assertion in the direction given to Mr Afroz Ali was sufficient to come within clause 22.3 of the plaintiff’s constitution.
17 In my view it has not been demonstrated that the meeting was invalid. This saves me from considering whether, in view of the status of Mr Afroz Ali, and in view of the technical nature of the matter, I need exercise my discretion.
18 Accordingly I dismiss the summons. The exhibits may remain with the papers. I make no order as to costs.
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