Rashid Raashed v Bangladesh Islamic Centre of New South Wales Inc

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 On 9 March 2018 I was informed by counsel for the Defendant that the Defendant had withdrawn instructions in the matter.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.

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 These proceedings were later withdrawn (CB2 170-1).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).

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:

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):

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).

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

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).

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:

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):

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

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

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)):

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:

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):

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):

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):

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):

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:

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]):

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):

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):

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

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):

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):

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):

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):

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]):

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]):

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):

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):

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).

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]).

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]).

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 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]).

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]).

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 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]).

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]).

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]).

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]).

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]).

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:

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.

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):

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

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):

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:

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

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

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.

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:

In Fenato v Chief Commissioner of State Revenue (2010) 78 NSWLR 20; [2010] NSWCA 80 at [29] Gzell J (with Beazley and Macfarlan JJA agreeing) highlighted how section 76 of the Interpretation Act 1987 (NSW) acts as a presumption:

See generally Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; [2005] NSWCA 4 and Deputy Commissioner of Taxation v Meredith (2007) 229 FLR 243; [2007] NSWCA 354.

Section 160 of the Evidence Act 1995 (Cth) is likewise a presumption:

In a Federal context in Deputy Commissioner of Taxation v ABW Design & Construction Pty Ltd (2012) 203 FCR 70 at [38]-[39]; [2012] FCA 346 Logan J observed:

Evidence that “raises a doubt” does not need to be of the same quality or of the same probative strength as evidence that is required to satisfy the civil standard. See North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; [2012] NSWCA 168 at [60] per Beazley JA (with Macfarlan and Whealy JJA agreeing):

In passing in a recent United Kingdom case Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC 22 at [39] Lady Hale (with Lord Wilson and Lady Black agreeing) in an employment context rejected the contention that there is a common law rule, principally derived from historic landlord and tenant cases, which supports the case that notice is given when the letter is delivered to its address:

Likewise Lady Black said (at [73]):

Dr Raashed swore four affidavits on 24 August 2017, 10 November 2017, 1 March 2018 and 28 May 2018.

Dr Raashed’s first affidavit (24 August 2017) outlined how on 1 July 2017 the BIC published a notice of membership renewal for the Annual General Meeting of 27 August 2017. However during the allocated time for renewal of memberships and payments of fees the office accepting these applications was closed. A number of applicants had their membership application fees returned by Mr Akterul Islam and these applications have not been finalised.

Notice was not given to a number of members of the Annual General Meeting of 27 August 2017.

Despite requests for access to the books and records of the BIC on 6 August 2017 Dr Raashed and several members of the BIC attended the premises of the BIC to inspect the books and records on 11 August 2017 at approximately 4pm. However they were physically prevented from access and Dr Raashed was allegedly assaulted and threatened by Mr Elzamtar.

On 14 August 2017 Dr Raashed received a letter dated 11 August 2017 which did not allow for inspection of the membership register or books and records.

Dr Raashed criticised the BIC for failing to make proper financial records by failing to disclose debts in financial reports for a default judgment entered into against the BIC in favour of Mr Elzamtar for $237,781.65 and an order for $101,012.24 in favour of Mr Kabir Ahmed against the BIC.

Dr Raashed expressed concern that the donations to the BIC are collected by Mr Elzamtar who is a creditor of the BIC and not a member of the BIC.

In Dr Raashed’s second affidavit (10 November 2017) he said he is a founder of the BIC and has been a president of the BIC. In about 1995 he was made a life member of that organisation.

The first meeting of the BIC was held on 3 December 1989 and the organisation was founded on 8 November 1989.

The BIC owns and operates a mosque at 11-13 Helen Street Sefton NSW 2162 purchased on or about July 1995.

The BIC also has its own office at 9 Helen Street Sefton NSW 2162 purchased in 2003.

Dr Raashed took an active part in raising the funds to both purchase the mosque and its office.

On 24 August 2017 Dr Raashed submitted a notice of motion seeking an injunction of the Annual General Meeting for the BIC planned for 27 August 2017.

It was only on 25 August 2017 in the hearing of the application before Justice Pembroke that Dr Raashed said he came to know that his life membership of the BIC was purportedly cancelled by the Executive Council. He only came to this knowledge upon reading the affidavit of the BIC President Mr Md. Emamul Haque affirmed on 24 August 2017.

Dr Raashed denied having received any letter or notice from the current Executive Council of the BIC advising him of any resolution to expel him or the reasons for said expulsion including for holding a “shadow” meeting on 12 February 2017. He alleged he has not been offered an opportunity to respond to the purported expulsion.

As a life member of the BIC between 12 July 2017 and 5 August 2017 Dr Raashed nominated and seconded a number of new membership applications to the BIC.

On 6 August 2017 Dr Raashed and others sent a letter to the Executive Council of the BIC requesting inspection of books and records pursuant to clause 51 of the Amended Constitution.

On 14 August 2017 they received a reply to that letter dated 11 August 2017 from the General Secretary of the BIC. That letter made no mention of the purported cancellation of Dr Raashed’s membership.

Dr Raashed along with a few other life members and with an aim to encourage new applicants to become members of the BIC attended the office of Mr Akterul Islam at his accounting business Accounting Point at 3/129 Haldon Street Lakemba. Although attending the office during the nominated hours for new applications on a number of occasions Dr Raashed found the office to be closed.

In June 2017 Dr Raashed also became aware that the BIC had been sued for money by Mr Elzamtar in late 2014 and who had received a default judgment in January 2015 for the amount of $237,781.65 plus costs. Upon obtaining the financial records of the BIC for the financial year 2015/2016 Dr Raashed noted the owed debt was not recorded.

Dr Raashed’s third affidavit (1 March 2018) reiterated his lack of knowledge of his purported expulsion by the Executive Council from the BIC. He first came to know of this purported expulsion on 25 August 2017.

Despite attending the offices of the BIC from 12 July 2017 to 5 August 2017 on a number of occasions, including on 5 August 2017 when he met Mr Emamul Haque the President of the BIC to take a group application of 25 membership forms, Dr Raashed denied he was ever told by Mr Haque that he was expelled or no longer a member.

Despite corresponding with the BIC in the period from 12 July to 25 August 2017 on a number of occasions Dr Raashed denied he was ever informed of his purported expulsion.

Dr Raashed’s fourth affidavit (23 May 2018) reiterated his challenge to his purported expulsion as life member of the BIC.

His affidavit also largely challenged the assertions of the affidavit of Mr Fakhruddin Ahmed Chowdhury.

Dr Raashed called the special general meeting of 12 February 2017 (or the alleged “shadow” meeting) because the current Executive Council was acting against the interests of the BIC and the constitution of the BIC. This included the proposed relocation of the BIC.

Dr Raashed sent a signed request of 60 life members for the meeting on 12 February 2017 and repeatedly asked for membership lists for both general members and life members of the BIC with no response.

On the 12 February 2017 Dr Raashed alleged he presided over its proceedings but was neither elected for any executive position nor was nominated as such by anyone.

Dr Raashed again denied the purported cancellation of his life membership was correctly done pursuant to clause 16 of the Amended Constitution and is therefore invalid.

Dr Raashed reiterated his fundraising activities for the BIC and denied he was hampering the proper running of the BIC. He alleged the current Executive Committee is non-functional as it has not lodged financial statements, failed to keep proper accounts, did not allow members to inspect its books and records and conducted Executive Council meetings without the valid quorum.

In cross-examination on 6 March 2018 Dr Raashed was briefly cross-examined on the possibility that he had nominated or seconded membership forms before the applicant had actually signed the membership application form. Dr Raashed said that this could happen (T36/15-25).

In cross-examination on 28 May 2018 it was put to him that he was associated with a faction of the BIC associated with Mr Kabir Ahmed. Dr Raashed denied this (T17/10-30).

It was put to him he was attempting to increase the number of applicants to the BIC who supported him to obtain a majority. Dr Raashed denied this (T18/25-35).

Dr Raashed denied that he would sign membership applications for people he did not know as he would always nominate or second applicants he knew were Muslims (T21/39-46). He did however later admit that he may not know them personally as he did not need to know them (T22/10-15).

Dr Raashed denied he placed the BIC’s ownership of its land in jeopardy by deregistering his company called House of Peace (T22/39-46).

Dr Raashed denied that he had received letters in relation to the litigation (namely House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc [2009] NSWSC 817) despite the findings of the Court that he had most probably received the letters (T23/40-45).

Dr Raashed did not know whether the Group Membership Request of the 13 people to the BIC in July 2017 was paid by Mr Mondal personally or the individual applicants although he believed Mr Mondal requested each applicant to bring the money (T26/15-20).

Dr Raashed denied the meeting of 12 February 2017 was an attempt to overthrow the Executive Council of the BIC (T26/45-50). He further alleged the meeting of 12 February 2107 was requisitioned in accordance with the BIC Amended Constitution (T27/35-40).

Dr Raashed denied the meeting of 12 February 2017 resolved to change the BIC Amended Constitution to allow non-Bengali membership applications (T30/30-41).

Dr Raashed denied he proposed on 12 February 2017 that the current Executive Council be expelled and that he only recorded in the minutes that other people proposed said expulsion, although he did support the expulsion (T30/43-T31/30) (T40/1-21).

Dr Raashed admitted he presided over the 12 February 2017 meeting as president of the meeting (T35/25-30).

Dr Raashed denied he proposed that Kabir Ahmed be reinstated as life member as this was simply that he “was proposing the intention and the feeling of the floor” (T36/45-50). Upon further cross-examination he admitted he did propose the motion although this was what he gathered from the floor of the meeting (T38/9-11).

Dr Raashed denied he voted on the expulsion of the Executive Council at the 12 February 2017 meeting (T41/25-30).

Dr Raashed admitted that on or about 31 March 2017 he went to the Sefton mosque with security guards to pray (T45/39-40). There were security guards on both sides and he denied he took a rival imam to the mosque (T46/1-15). However he admitted that accompanying him were members of the supposed new Executive Council elected on 12 February 2107 who he felt were entitled to take control of the BIC (T48/10-15).

Dr Raashed admitted that it was on more than two days that he was able to assist people to submit applications to the office of the BIC (T57/10-15).

Dr Raashed admitted that he had not bothered to check whether the 13 people referred to in his 24 August 2017 affidavit were or were not accepted members of the BIC (T58/35-40). He had no means of contacting some of the people he referred to in his affidavits (T61/43-45). He admitted he had not checked the list of members of the BIC to determine whether individuals referred to in the Amended Statement of Claim were already members of the BIC (T66/10-125) (T74/45-50).

Dr Raashed denied he knew there was an Executive Council meeting of the BIC on 16 July 2017 (T67/40-45).

Dr Raashed reiterated his dissatisfaction of his purported expulsion from the BIC as it would “reverberate throughout my life” and stated “this is my child” (T76/45-50).

Dr Raashed denied the names he referred to in his affidavit of 24 August 2017 as those who had been refused to the BIC were incorrect as he had not checked whether they were accepted or rejected (T79/15-20). Dr Raashed did however admit he had not checked a number of names referred to in his affidavit (T80/5-30).

Dr Raashed asserted he saw each of the 17 individuals referred to in the Amended Statement of Claim at [20] hand over individually $20 to Mr Haque at the nominated BIC office (T85/45-T86/15). However he admitted he may not know each of these individuals personally other than that they were Muslim (T86/30-35).

Dr Raashed denied he got into a fight with Mr Elzamtar but did admit he registered an AVO against him which he later withdrew (T97/20-30).

Dr Raashed admitted he did not have information on some of the individuals referred to in his pleadings as being rejected unconstitutionally from the BIC (T103/1-5).

When provided with a form that had been pre-signed by himself and Mr Mondal without any applicant’s signature appearing on it Dr Raashed suggested this might be doctored (T107/34-40). However he later admitted he would sometimes pre-sign membership application forms and wait until the applicant signed the form before putting a date on the form (T108/30-35).

It was put to Dr Raashed he received a letter dated 17 July 2017 from the BIC referring to a hearing to be held concerning his expulsion. It was put he received the letter and chose to ignore it. Dr Raashed denied ever receiving the letter (T113/35-50).

It was put to Dr Raashed likewise that he received the expulsion letter of 3 August 2017 and chose to ignore it. He denied every receiving the letter (T114/5-30).

Mr Mondal swore three affidavits on 10 November 2017, 1 March 2018 and 27 May 2018.

In his first affidavit (10 November 2017) he outlined how he is one of the founding members of the BIC and a life member of the BIC.

On or about 25 August 2017, when he read the affidavit of Mr Haque dated 24 August 2017, was the first time he came to know that his life membership with the BIC was purportedly cancelled.

From 21 July 2017 to 6 August 2017 Mr Mondal nominated or seconded a large number of applications of prospective members to the BIC. He wrote to the BIC for copies of books and records on 6 August 2017 and received a reply letter on 11 August 2017 which did not mention any purported expulsion.

On 15 July 2017 he attended the Lakemba office of the BIC and attempted to submit applications for 13 new members. On 21 July 2017 he received a call from Mr Akterul Islam asking for payment of the 13 applicants as their application had been approved. He then handed Mr Islam $260 in cash for each of the applicants and received a handwritten receipt for that payment.

On or about 31 July 2017 Mr Islam called him again and refunded the $260 as he said their membership was not finalised by the BIC.

In his second affidavit (1 March 2018) Mr Islam criticised the purported expulsion of his life membership from the BIC and denied receiving any letter in relation to the purported cancellation of his membership.

He denied ever asking Mr Akterul Islam if he could return the $260.

In his third affidavit (27 May 2018) (marked Exhibit D5) Mr Mondal outlined how he received $2,300 from the individuals at the meeting of 12 February 2017 and used the money to purchase stationary, food, drinks and hire security guards.

In cross-examination Mr Mondal denied Dr Raashed proposed the redevelopment of the BIC mosque at the meeting of 12 February 2017 and said it was “proposed by our audience, our people” (T122/29-36).

He denied Dr Raashed proposed that Mr Kabir Ahmed’s life membership should be reinstated and that again the proposal simply came from the floor generally. He did not remember the name of the person who made the proposal (T123/30-50).

Mr Mondal denied he proposed himself to be on the new Executive Council at the 12 February 2017 meeting and again the proposal came from “the floor” generally (T125/1-5).

It was put to Mr Mondal that some of the 13 new members referred to in his affidavit concerning the 15 July 2017 group membership request had not actually made requests on 15 July 2017 as some made their request for membership on 26 July 2017 (T129/9-15). Mr Mondal said he did not understand (T129/10-15). Mr Mondal said the discrepancy of dates could be that there were two individuals called Mohammed Shahidul Islam (T131/15-20).

Mr Mondal said the $260 paid by him to Mr Akterul Islam had been provided to him by each of the 13 applicants (T131/35-41).

Mr Mondal denied he was aware that the Executive Council met on 16 July 2017 to discuss his potential expulsion as a life member from the BIC (T132/45-50).

It was put to Mr Mondal he received a letter dated 17 July 2017 and he chose to ignore it. He denied this (T133/15-25).

It was put to Mr Mondal he received a letter dated 4 August 2017 stating that he had been expelled. He denied receiving any such letters (T126/32-50).

Mr Mondal denied he insisted Mr Akterul Islam take the $260 from him (T136/20-31).

Mr Mondal admitted he pleaded in the Amended Statement of Claim that certain individuals were not members when they were in fact members of the BIC (T138/9-11).

Mr Mondal admitted he created an ANZ bank account named “Bangladesh Islamic Centre” because he believed he was the legitimate Executive Council of the BIC after the 12 February 2018 meeting (T139/15-30).

He admitted the money raised at the 12 February 2018 meeting was paid to hire security guards to go to the BIC mosque on 31 March 2018 (T140/12-16). He denied he got in a fight at the mosque site (T140/40-45).

Mr Mondal admitted it was possible he may have sent the text message marked Exhibit D6 stating “Abu Ahamed filed a case against BIC and won $2,40,000.00 and the present committee don’t know anything about it or they have different deal” (T141/45-50).

Mr Mondal admitted he took an AVO against Mr Elzamtar and later withdrew it (T142/5-15).

Mr Gofur swore one affidavit on 9 November 2017 (CB1 Tab 11).

He is a life member of the BIC since 2004.

On 4 August 2017 he accompanied his brother-in-law Mr Md. Moin Murshed Khan to submit a membership application form for Mr Khan to the BIC’s Lakemba office. Mr Gofur said Mr Akterul Islam denied the membership application and assaulted him by pushing him.

On 5 August 2017 Mr Gofur accompanied his wife Shammi Abdul Gofur and brother-in-law Mr Khan to the Lakemba office of the BIC where his wife and brother-in-law submitted their applications and paid $20 each (as part of 24 applicants) to Mr Haque. Mr Haque never provided receipts for the memberships.

In cross-examination Mr Gofur denied Mr Haque provided his wife with a receipt however he admitted his wife received a letter confirming her successful membership to the BIC (T156/1-16).

Mr Gofur denied the BIC had issued a receipt of membership application to him or his wife by mail (T157/1-16).

However he admitted that his wife did receive a letter confirming that her membership application had been accepted (T157/23-25).

It was put to Mr Gofur he would not know whether or not the applicants who submitted a group membership request on 5 August 2017 did or did not receive a receipt from Mr Haque or letters confirming their acceptance or rejection as applicants to the BIC. He denied this and said he had checked with everyone and no one received letters of such kind (T158/30-40). Only his wife had received a letter (T159/1-5).

Mr Ali swore one affidavit on 2 March 2018 (CB1 Tab 19).

Mr Ali has been a life member of the BIC since about 1995.

On 15 July 2017 Mr Ali accompanied his wife and two sons to the BIC office of Mr Akterul Islam and submitted three membership application forms on behalf of his wife and two sons. Mr Islam accepted the forms but not any membership fee.

On 29 July 2017 Mr Ali again attended the office of Mr Akterul Islam to inquire on the status of the applications. Mr Islam said they were approved and Mr Ali paid $60 for the membership fee for which he received a receipt.

In cross-examination Mr Ali denied his wife or sons ever received a letter dated 17 July 2017 requiring them to return and pay individually (not as a group payment) (T238/24-28; T238/45-48).

Mr Ali denied his wife or two sons ever went to the office and paid $20 individually to Mr Haque (T240/10-15).

Mr Kabir Ahmed swore two affidavits on 10 November 2017 and 2 March 2018.

In his first affidavit (10 November 2017) Mr Ahmed outlined his role in the two factions of the Executive Council of the BIC which led to court proceedings commenced by him on 26 May 2011. The judgment was delivered in that proceeding on 28 November 2012 by Lindsay J.

Mr Ahmed outlined the costs assessment process that followed from this dispute including assessed costs to be paid to him of approximately $98,040.74.

Mr Ahmed enforced garnishee orders from the BIC’s bank account for approximately $28,000 leaving an amount owing of $77,500 until 13 June 2017 (or May 2017) when he agreed not to enforce the costs owing to him

Mr Ahmed outlined how he was purportedly expelled from being a life member of the BIC on or about 19 March 2016. He submitted applications for membership of the BIC on 13 June 2017 and 12 July 2017 and the applications have not been approved.

In his second affidavit (2 March 2018) Mr Ahmed again outlined his role in obtaining a judgment debt against the BIC that as at 13 June 2017 still amounted to an owed amount of $77,500. However as part of a settlement agreement he agreed he would not enforce the judgment debt further.

Mr Ahmed alleged that the financial reports of the BIC ending 30 June 2015 incorrectly recorded a garnishee expense paid to him of $13,581.40 as he was unable to enforce any garnishee order that year.

In cross-examination Mr Ahmed admitted there was further litigation between him and the BIC including orders made by the Court restraining him from holding himself out as being the Executive Council (T146/1-7).

Mr Ahmed admitted he was expelled from the BIC on 19 March 2016 (T146/24-27).

Mr Ahmed denied he organised the meeting of 12 February 2017 but admitted he attended (T147/1-10).

Mr Ahmed admitted at the 12 February 2017 meeting he had raised a notice of motion that he be reinstated as a member of the BIC (T147/15-21).

Mr Ahmed said Mr Ali proposed him to be the new president of the BIC at the 12 February 2017 meeting (T147/35-45).

Mr Ahmed admitted he sent letters dated 22 February 2017 and 12 March 2017 requesting the records and books of the “ex-executive council of the BIC” with a common seal (T148/9-39).

Mr Ahmed admitted he attended the mosque on 31 March 2017 with Dr Raashed and security guards because he wanted to take money for collection of what he saw as the new Executive Council (T149/1-12).

Mr Ahmed admitted receiving a letter dated 17 July 2017 (Exhibit D8) notifying him that his application for membership was being referred to the Annual General Meeting (T151/26-37).

Mr Ahmed said he had never responded to this letter (T152/1-3).

Mr Ahmed admitted he had an AVO against Mr Elzamtar in relation to the events that occurred on 31 March 2017 (T152/25-41).

Mr Samchhul Alam swore an affidavit on 9 November 2017 (CB1 Tab 10).

He submitted his application form to the BIC on or about 22 July 2017. He also paid $20. This was the first time he applied to be a member.

He received a receipt from Mr Mirdha for the application. He did not receive any response from the Executive Council regarding the outcome of his membership application.

In cross-examination Mr Samchhul Alam admitted he did not remember how many forms he had submitted to the BIC as a prospective applicant (T168/25-30).

He denied receiving a letter dated 1 August 2017 (Exhibit D12 9) outlining that the Executive Council had resolved to reject his application on the basis of his attendance at the 12 February 2017 meeting (or any letters from the BIC notifying him of rejection of application) (T171/1-15).

Mr Ferdous Alam swore one affidavit on 10 November 2017 (CB1 Tab 8).

He submitted a membership application form on 15 July 2017.

He denied receiving any letter from the BIC in relation to this application.

In cross-examination Mr Ferdous Alam admitted he had attended the meeting of 12 February 2017 (T176/5-10).

Mr Ferdous Alam denied ever receiving a letter dated 17 July 2017 rejecting his application on the basis of his attendance at the 12 February 2017 meeting (T179/40-50)(Exhibit D 12 4).

Mr Bashit swore on affidavit on 10 November 2017 (CB1 Tab 7).

He submitted his membership application on 22 July 2017 and spoke to Mr Mirdha and paid $20.

He denied ever receiving a letter from the BIC in relation to this application.

In cross-examination Mr Bashit accepted that Mr Mirdha had told him that the form was incomplete because dates were missing (T189/5).

However Mr Bashit denied ever receiving a letter dated 7 August 2017 rejecting his application on the basis of discrepancies (Exhibit D 12 21) (T190/-18-23). He further said he had never been refunded the $20 for the application fee (T 191/1-3).

Mr Rahman swore one affidavit on 10 November 2017 (CB1 Tab 12).

He attended the office of the BIC personally on 22 July 2017 and paid the $20 fee.

He admitted in his affidavit receiving a letter dated 7 August 2017 outlining his application was rejected on the basis that there were discrepancies in his application (CB1 193).

In cross-examination it was put to Mr Rahman that his application did not contain a date next to the nominator and seconder’s names (T195/30-T196/20). He rejected that as he was sure there was a date.

In cross-examination he confirmed he received the rejection letter dated 7 August 2017 (T197/35-39).

He denied he was ever returned the $20 application fee (T200/7-8).

Mr Uddin swore one affidavit on 8 November 2017 (CB1 Tab 3).

He attended the Lakemba office on 5 August 2017 and paid $20 to Mr Haque although he did not receive a receipt.

He received a phone call on 6 August 2017 from Mr Haque concerning whether he knew the nominators and seconders of his application Dr Raashed and Mr Mondal.

On 7 August 2017 Mr Uddin received a rejection of application from the BIC citing discrepancies in his application and that his application was incomplete and therefore rejected on this occasion (CB1 150).

In cross-examination Mr Uddin rejected the proposition that he had not paid the $20 (T202/20-25).

However he admitted he received the rejection letter dated 7 August 2017 (T207/36-49).

Mr Mohammad R K Chowdhury swore one affidavit on 9 November 2017 (CB1 Tab 5).

He submitted his application form on 15 July 2017 in person. On 21 July 2017 Mr Mondal paid the $20 to Mr Akterul Islam in relation to Mr R K Chowdhury’s application.

On 31 July 2017 Mr Mondal told Mr R K Chowdhury his membership fee had been returned as his application was not finalised.

In affidavit evidence he said he never received a response from the Executive Council of the BIC regarding the outcome of his membership application.

In cross-examination Mr R K Chowdhury however admitted receiving a letter dated 17 July 2017 informing him that there was a discrepancy in his application in that the seconder did not personally sign the document and that he needed to urgently clarify whether the seconder did sign the application via statutory declaration (DTB 172-4) (T214/15-24).

However he said that he tried to call the BIC but could not contact them and did not have a way of contacting the seconder Mr Abdullah Harune as he did not know him very well (T215/1-36).

Mr R K Chowdhury was not cross-examined on whether he received the 7 August 2017 letter addressed to him which informed him that his application would be referred to the Annual General Meeting for final decision (DTB 175).

Mr Hayet swore one affidavit on 9 November 2017 (CB1 Tab 6).

On 15 July 2017 he attended the BIC office personally to submit his application form to Mr Akterul Islam. Mr Islam told him that he could not pay the $20 membership fee at that time as it was not being accepted.

On 31 July 2017 Mr Hayet was told by Mr Mondal that his membership fee (submitted as part of a group payment of $260) had been returned and his application had not been finalised.

Mr Hayet denied that since then he received any response from the Executive Council regarding the outcome of his membership application.

Mr Hayet in cross-examination explained that he had in fact submitted two membership applications (T220/45-50).

In cross-examination Mr Hayet admitted he received one letter although did not specify what this letter concerned (T223/1-15). He however denied receiving the letter dated 7 August 2017 from the BIC outlining how the Executive Council had requested he provide a statutory declaration from the seconder of his application form (T225/25-35).

Mr Hayet in re-examination emphasised he was not repaid his $20 application fee (T226/9-11).

Mr Muktadir Ahmed swore one affidavit on 10 November 2017 (CB1 Tab 9).

He had previously been a member of the BIC for approximately 14 years.

He submitted his membership application on 12 July 2017 to the BIC Lakemba office in person. After some wait he submitted the membership form to Mr Akterul Islam but Mr Islam did not accept the $20 fee. However Mr Islam did give Mr Muktadir Ahmed a copy of his application attached to his affidavit.

Mr Muktadir Ahmed admitted on 17 July 2017 he received a letter from the BIC outlining that the Executive Council had resolved to reject his application as a result of his attendance at the 12 February 2017 meeting and it would be referred to the upcoming annual general meeting.

In cross-examination Mr Muktadir Ahmed admitted he received the letter dated 17 July 2017 at his home (T230/19-26).

Mr Muktadir Ahmed admitted he understood the basic idea of the letter but not the whole of it (T232/20-25).

Mr Md. Shah Alam swore one affidavit on 10 November 2017 (CB1 Tab 13).

He had formerly been a member of the BIC and served on the Executive Council but went overseas for a period of 2-3 years.

He attended the Lakemba office on 3 August 2017 and submitted his membership application form to Mr Akterul Islam with $20 for the membership fee.

Mr Islam issued a cash payment receipt to Mr Alam.

On 24 August 2017 Mr Alam received a letter dated 7 August 2017 notifying him that his application had been rejected on the basis of discrepancies.

In cross-examination Mr Alam confirmed he had received the letter notifying him of the rejection on the basis of discrepancies (being the absence of dates next to the nominator and seconder signatures) (T244/11-23).

Mr Alam said he went to the office and asked them to inform him of the discrepancy but he was told nothing (T244/30-40).

Mr Haque affirmed two affidavits on 24 August 2017 and 20 February 2018.

In Mr Haque’s first affidavit (24 August 2017) outlined how Mr Haque is the current President of the BIC. He was elected to this position on or around October 2014. Mr Haque is aware of the day to day affairs, operations and business of the BIC.

Mr Haque denied Mr Raashed and Mr Mondal are life members of the BIC as their membership ceased on 11 August 2017.

Mr Haque outlined the preparation that occurred for the planned BIC Annual General Meeting on 27 August 2017 including hiring community halls, contacting Mr Lawrence Myers to act as returning officer, contracting security guards, notifying a total of 447 members of the BIC and ordering food and refreshments.

Mr Haque also in large part denied the assertions of the affidavit evidence of Dr Raashed. Mr Haque stated the Executive Council only came to be aware of the Elzamtar default judgment against the BIC recently and that the debt is disputed by the BIC. He also stated the Executive Council was aware of the judgment debt to Mr Kabir Ahmed however that was subject to a long standing dispute settled in 2017.

Mr Haque denied that all of the applicants referred to by Dr Raashed are not members or have been denied membership of the BIC, pointing to a number of individuals who are general members of the BIC. Only those applicants with discrepancies in their applications are not members.

In Mr Haque’s second affidavit (20 February 2018) he asserted Dr Raashed and Mr Mondal ceased to be members of the BIC on 12 August 2017. Their life memberships were removed for disciplinary reasons after notice in mid-July 2017. On 16 July 2017 Dr Raashed did not attend the Executive Council meeting as he was in Bangladesh.

Mr Haque only became aware of the Elzamtar default judgment when an examination order was sent to the BIC mosque. This was the first time the Executive Council became aware of the debt. On 8 December 2017 Russell DCJ set aside the default judgment. The BIC denied any money owed to the Mr Elzamtar.

The disputed judgment debt of Mr Kabir Ahmed was settled in 2017 by Parker J.

Mr Haque then outlined a number of the disputed membership applicants to the BIC, explaining how letters were sent to them in relation to their application forms and to remedy any deficiencies in them.

The $260 paid by Mr Mondal for the group of 13 applicants on 15 July 2017 was returned to Mr Mondal on 31 July 2017 as per the Executive Council’s decision. Only those individuals out of the 13 who attended personally and filled their application and paid the $20 personally were approved as general members of the BIC.

In cross-examination it was put to Mr Haque that the bank statements of the BIC did not reflect any payments in preparation for the Annual General Meeting during the period June, July and August 2017. Mr Haque denied this (T257/19-25).

Mr Haque admitted it was possible that some cheque butts dated 27 August 2017 in relation to the BIC were written some days before then (T263/30-35).

Mr Haque admitted in his affidavit of 24 August 2017 he might not have referred in any way to disciplinary proceedings against the Plaintiffs or anyone else (T266/30-40).

Mr Haque was cross-examined on the discrepancy between his affidavits as to the date Dr Raashed and Mr Mondal were expelled from the BIC (that is either 11 August or 12 August 2017). He said 12 August 2017 was the correct date (T274/11-22).

Mr Haque admitted that on 5 August 2017 he met Dr Raashed (T280/1-5). He admitted he did not mention to Dr Raashed that the Executive Council had two days prior decided to expel him and Mr Mondal and that there was no particular reason for this (T280/19-25).

Mr Haque admitted that there should have been but was not a water bill recorded on the financial statements he signed off on for the financial year 2015 (T 283/26-47).

Mr Haque admitted he signed off on financial statements that reflected service charges and related expenses in relation to a property owned by the BIC but not in use for a number of years (T297/38-49).

Mr Haque admitted the financial records for the year 2015 did not record council rates in excess of $1,500 and he could not explain it (T299/31-36). He admitted the electricity rates for the year 2015 were also not recorded (T300/3-5).

Mr Haque admitted he requested Mr Elzamtar to collect donation money and pay utilities and maintenance bills for the BIC after he had obtained a default judgment debt against the BIC (T304/16-19).

Mr Haque denied Mr Elzamtar never told him for a period of two years and four months about the default judgment he had obtained against the BIC (T305/22-27). He denied the BIC was aware about the default judgment on or before May 2017 (T306/30-37).

Mr Haque did not know whether Mr Elzamtar kept a record of the donations he received on behalf of the BIC however Mr Haque himself said he kept a record (T311/38-45). He believed Mr Elzamtar gave him the entirety of the money he received as donations (T31/18-22).

Mr Elzamtar pays the utilities of the BIC directly from the donation money (T319/3-4).

Mr Haque had not spoken to Mr Elzamtar about the default judgment he obtained against the BIC (T319/43-45).

In re-examination Mr Haque explained that a portion of the unused property of the BIC is used for a kitchen as some portion of the property has been burnt out (T323/10-19).

Mr Mirdha swore one affidavit on 20 February 2018.

He is a current member of the Executive Council of the BIC and currently treasurer (from 16 March 2016). He has been involved with the BIC since around 2009.

He understood on 12 February 2017 there was a purported special general meeting in which Dr Raashed and Mr Mondal amongst others attempted to remove the current Executive Council.

Mr Mirdha outlined the litigious dispute with Mr Kabir Ahmed which was settled on 13 June 2017 resolving the proceedings.

Mr Mirdha said there was an Executive Council meeting of the BIC on 16 July 2017 where the Executive Council considered disciplinary action against Mr Mondal and Dr Raashed. Given that the 12 February 2017 meeting was contrary to the constitution in accordance with clause 16(a) Mr Mondal and Dr Raashed would be disciplined by the expulsion as members of the BIC. The Executive Council also resolved to hold another meeting on 3 August 2017.

As per the Executive Council decision Mr Mirdha typed two letters on the computer with Mr Syed Harunur Rashid the Secretary of the BIC dictating the content in Bengali. The letters were addressed to the most recent addresses provided to the BIC of Mr Mondal and Dr Raashed. Mr Mirdha then read the content of the letters to Mr Rashid in Bengali. Mr Rashi agreed with the letters. They were printed by Mr Mirdha and Mr Rashid signed them.

Mr Mirdha made two copies of the letters. The original signed copies were retained for the BIC records and Mr Mirdha retained the photocopy version. Mr Rashid asked Mr Mirdha to post the letters.

The next day Mr Mirdha went to the Lakemba Post Office and bought stationary for the BIC’s office. On 17 July 2017 he posted the letters to Mr Mondal and Dr Raashed at their last notified addresses with a stamp affixed to the envelope paying for sufficient postage.

On 3 August 2017 the Executive Council met and by that stage no response had been received from Mr Mondal and Dr Raashed to the BIC and Executive Council. Mr Mondal and Dr Raashed did not attend the Executive Council meeting.

The Executive Council confirmed the resolution to expel Mr Mondal and Dr Raashed. After this meeting Mr Mirdha again drafted two letters with the Secretary Mr Rashid. These letters were drafted to conform with clause 16(e) of the Amended Constitution. Again Mr Rashid dictated in Bengali and Mr Mirdha wrote the two letters in English. Mr Mirdha then read out the letter in the Bengali equivalent to Mr Rashid who agreed to sign the letters. Mr Rashid told Mr Mirdha to send the letters out tomorrow.

On 4 August 2017 Mr Mirdha attended to the Lakemba post office and bought more stationary. He posted the letters to Mr Mondal and Dr Rashid on that date with a stamp affixed paying sufficient postage in the post box located in McCourt Street Lakemba. Mr Mirdha produced a copy of the Lakemba post office receipts when he bought the stationary for the Defendant on the day he sent these letters.

No appeal against the BIC decision was lodged by Dr Raashed or Mr Mondal. The BIC has not received any ‘return to sender’ mail for the letters sent to Dr Raashed and Mr Mondal on 17 July 2017 and 4 August 2017.

Mr Mirdha outlined how on 22 July 2017 Mr Abdul Bashit attended the BIC office at Lakemba. Mr Mirdha noticed Mr Bashit’s application form did not have dates on the seconder and nominator signatures. Mr Mirdha returned the $20 to Mr Bashit as he did not take the opportunity to remedy this discrepancy.

Mr Mirdha outlined how on 22 July 2017 Mr Mohammad Samchhul Alam attended the BIC office at Lakemba to apply to be a member. He does not recall having a specific conversation with Mr Alam.

On 6 August 2017 the Executive Council met to review the membership applications that had been submitted in light of the upcoming Annual General Meeting of the BIC.

On or about 17 July 2017 Mr Mirdha had sent a letter to Mr Mohammad R K Chowdhury (dictated by Mr Rashid in Bengali and written in English) outlining the deficiency in respect of his membership application.

On or about 7 August Mr Mirdha has sent a letter to Mr Md. Shah Alam (dictated by Mr Rashid in Bengali and written in English) outlining a defect in his membership application as the nominator and seconder signatures were not dated.

On or about 17 July 2017 Mr Mirdha had sent a letter to Mr K M Omar Hayet (dictated by Mr Rashid in Bengali and written in English).

On 6 August 2017 Executive Council meeting the Council resolved to reject the applications of Mr R K Chowdhury, Mr Shah Alam and Mr Hayet.

In cross-examination Mr Mirdha denied he had failed to comply with his duties under clause 25(e) of the Amended Constitution in presenting a summary of income, expenses and books of accounts at each executive meeting as they were recorded in a separate book (T327/1-9).

Mr Mirdha admitted he had not prepared a financial statement for 2017 for the BIC (T329/38-39).

Mr Mirdha admitted Mr Elzamtar does not give him access to his records of amounts received in donations (T334/18-26).

Mr Mirdha denied the financial statements as at 30 June 2016 were incorrect (T338/12-16).

Mr Mirdha admitted there were a number of loans given to the BIC by a number of individuals recorded as financial liabilities that were secured (T340/1-20).

Mr Mirdha denied Mr Elzamtar ever spoke to him about any claim for money he had against the BIC (T346/15-48). Mr Mirdha denied anyone within the Executive Council suggested to him they already knew that Mr Elzamtar had received a default judgment order against the BIC (T347/15-17). Mr Elzamtar has never told Mr Mirdha anything about the litigation the BIC is involved in (T348/45-50).

Mr Mirdha denied closing the bank accounts of the BIC to avoid a garnishee order in favour of Mr Kabir Ahmed (T349/41-43). The BIC’s financial records did not record the debt owed to Mr Ahmed because it was disputed (T350/16-21).

Mr Mirdha denied that a failure for nominators and seconders to date application forms next to their signatures did not amount to a discrepancy (T356/10-12).

Mr Mirdha admitted it could be days or weeks later when he types up minutes of Executive Council meetings as there is no set pattern (T359/41-46).

Mr Mirdha admitted that Mr Mondal was contacted so that the BIC could return the $260 he paid as part of the group membership application (T361/6-8). Mr Mirdha confirmed that if an application for membership was rejected the fee would be returned (T361/28-32).

He was not cross-examined on whether he sent the disciplinary letters to Dr Raashed or Mr Mondal.

Mr Chowdhury swore two affidavits on 19 February 2018 and 20 May 2018.

In his first affidavit (19 February 2018) Mr Chowdhury outlined how he was President of the BIC five times until April 2010. He is currently a BIC life member.

On 12 February 2017 he attended the purported special general meeting of the BIC being a meeting partially called by the Plaintiffs. He attended in good faith and signed the register of attendance. Approximately 60 or 70 people attended and Dr Raashed chaired the meeting.

Mr Chowdhury spoke to the meeting stating that it was unconstitutional. Despite this he was shocked to hear at the meeting that a “New Executive Committee” was appointed with no actual election or returning officer to ensure the meeting and/or election followed due process. As the topic of the purported appointment of the new Executive Council was raised 30 or 40 people left the room. The meeting went for an hour and a half.

In his second affidavit (20 May 2018) Mr Chowdhury largely provided a historical background to the BIC including that Dr Raashed was one of the foundation members of the BIC mosque. He outlined the litigious history of the BIC since August 2003 involving Dr Raashed and his brother Nasir Ullah and the House of Peace Pty Ltd.

In late 2016 Dr Raashed attempted again to install a committee in the BIC made up of his supporters including holding the purported general meeting on 12 February 2017 which elected a purported “shadow committee” which issued letters to the Executive Council following 12 February 2017 made out as if it was vested with authority to run the BIC

On 31 March 2017 Dr Raashed with his supporters and the president of his new “shadow committee” invaded the mosque at prayer time. The mosque descended into a “war zone” with security guards everywhere and terrified worshippers. Dr Raashed and his followers tried to take over the mosque by force and collect the money and they had with them their own replacement imam.

Mr Chowdhury said Dr Raashed, Mr Mondal and Kabir Ahmed also attempted to take out AVO applications against Mr Elzamtar/ These were withdrawn before hearing and costs were payable by both parties.

In cross-examination Mr Chowdhury admitted he signed the requisition calling for the meeting of 12 February 2017 (T366/8-10). He denied he was dissatisfied with the current Executive Council but signed because he thought some other people were not satisfied and he should help them hold the meeting (T366/12-16).

He admitted he had litigation with the BIC once in 2008 (T366/18-19).

Mr Islam swore one affidavit on 22 February 2018.

He is a previous treasurer of the BIC and currently a life member. He is a qualified accountant and principal at Accountants Point at 1/129 Haldon Street Lakemba NSW 2195. His office is used by the BIC for administrative purposes.

For the purposes of the Annual General Meeting in 2017 and previous meetings Mr Islam has left his office open to assist membership applications. Mr Islam was surprised to hear Dr Raashed and Mr Mondal alleged his office was closed when on numerous occasions they came to his office with many people to attempt to lodge applications.

Mr Islam was aware of the independent auditors of the BIC’s financial statements:

At no time has Mr Islam audited the financial documents for the BIC.

Mr Islam outlined how Mr R K Chowdhury and Mr K M Omar Hayet submitted their membership application forms to him on or about 15 July 2017. Mr Islam outlined how Mr Shah Alam submitted his membership application to his office on 3 August 2017.

On 21 July 2017 Mr Mondal attended Mr Islam’s office with a handwritten list of 13 names and $260 on behalf of 13 applicants. As Mr Islam did not have instructions from the Executive Council to accept bulk payment Mr Islam simply signed the handwritten list on the basis that he would pass the document and the $260 to the Executive Council.

Mr Islam then gave the money and the handwritten list of 13 names to the Executive Council for their decision on the matter.

Mr Islam denied calling Mr Mondal on 21 July 2017.

On 28 July 2017 Mr Mondal came to Mr Islam’s office asking for the $260 back. Mr Islam referred him to Mr Mirdha who then also attended the office. Mr Mirdha authorised Mr Islam in writing to release the $260 to Mr Mondal. This was recorded in a signed note with the word “money received” on the left signed and dated.

Mr Islam denied calling Mr Mondal on 31 July 2017.

In cross-examination Mr Islam admitted Mr Mondal came several times to his office including on 15 July 2017 (T370/20-21).

Mr Islam denied he ever asked Mr Mondal to return to his offices on 21 July 2017. However he admitted he received $260 and a list of names from Mr Mondal (T371/21-26).

Mr Islam denied he knew Mr Mondal or ever called him (T372/37). He admitted he was directed by Mr Mirdha to withdraw $260 to return to Mr Mondal (T372/25-31).

Mr Islam said he was aware from 2014 onwards about the order Mr Kabir Ahmed had against the BIC (T375/30-33). He admitted the Executive Council made the decision to close the BIC bank account so no further garnishee orders could be taken out in favour of Mr Ahmed (T376/37-47).

Mr Islam explained the accounting standards did not require the recording of disputed debts of 50% possibility of winning or more and that there were three categories of standards (75% possibility of winning, 50% possibility of winning and 25% possibility of winning) (T380/34-50).

He had not recorded Mr Ahmed’s debt against the BIC as the Executive Council had obtained legal advice saying the debt was unlikely to win although Mr Islam himself never saw such a written advice (T381/1-50).

Mr Islam had only heard about the Elzamtar default judgment debt sometime in 2017 (T383/19-20). He had never discussed with Mr Elzamtar any such claim (T383/26-28).

Mr Islam denied that he had ever promised Mr Elzamtar he would pay money to him (T383/43-47).

In approximately July 2017 Mr Mondal told Mr Islam about the Elzamtar default judgment debt (T384/15-18).

Mr Islam denied ever talking to Mr Elzamtar about the default judgment debt or that Mr Elzamtar ever mentioned it to him (T385/18-20).

Mr Islam denied that Mr Talukder ever indicated he knew about the Elzamtar default judgment debt before May 2017 (T389/21-25).

Mr Rashid swore two affidavits on 24 August 2017 and 23 February 2018.

In Mr Rashid’s first affidavit (24 August 2017) he outlined how he is the current General Secretary of the BIC having been elected to this position on or around 2015. Mr Rashid provided a list of 314 general members and 133 life members of the BIC sent to the returning officer by email on 21 August 2017.

Mr Rashid disputed the list of 13 members provided by Dr Raashed in his affidavit of 24 August 2017 stating a number of these applicants are either members or received letters noting discrepancies in the applications or otherwise.

Mr Rashid asserted the required notices have been sent contrary to the assertions of Dr Raashed.

In his second affidavit (23 February 2018) Mr Rashid outlined the meeting of 12 February 2017 held by the Plaintiffs and the response of the Executive Council to hold a meeting on 16 July 2017 where it was “decided” that it was appropriate to consider disciplinary actions against those who were members of the BIC and were involved in the meeting of 12 February 2017.

It was resolved in accordance with clause 16(a)(iii) that both Mr Mondal and Dr Raashed were to be expelled as life members of the BIC because they persistently refused or neglected to comply with the Constitution of the BIC. The Executive Council resolved that a letter ought to be sent to Mr Mondal and Dr Raashed.

Another meeting on 3 August 2017 would be called to consider any oral or written representations by those members expelled.

Mr Rashid dictated to Mr Mirdha in Bengali the letters sent to Mr Mondal and Dr Raashed dated 17 July 2017 with Mr Mirdha writing in English as he is more proficient in English than Mr Rashid. Mr Mirdha read the letters back to him translated into Bengali and Mr Rashid signed the letters. Mr Rashid said to Mr Mirdha “Can you please post this out for me tomorrow”.

On 3 August 2017 an Executive Council was held. Mr Rashid had checked the books and records of the BIC and had not received correspondence from Mr Mondal or Dr Raashed in relation to the resolutions of 16 July 2017 to expel them. The meeting continued until 7:40pm during which there was no appearance by Mr Mondal or Dr Raashed.

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).

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.

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.

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:

With respect to Mr Motahar Ali:

With respect to Mr Kabir Ahmed I am satisfied:

With respect to Mr Mohammad Samchhul Alam:

With respect to Mr Ferdous Alam:

With respect to Mr Abdul Bashit:

With respect to Mr Md. Tanjinur Rahman:

With respect to Mr Mohammed Mueen Uddin:

With respect to Mr Mohammad R K Chowdhury:

With respect to Mr K M Omar Hayet:

With respect to Mr Muktadir Ahmed:

With respect to Mr Md. Shah Alam:

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.

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:

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.

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.