Dehsabzi v Afghan Community Support Association of NSW Inc [2020] NSWSC 899

Dehsabzi v Afghan Community Support Association of NSW Inc [2020] NSWSC 899

There was a real likelihood the proposed election under the existing de facto committee would be invalid due to non-compliance with the applicable 2008 Model Rules, as the de facto committee's authority was in doubt and procedures did not comply with those Rules. To ensure validity and certainty in the Association's governance, the Court was justified in appointing independent receivers (agreed by the parties) to take control for the purpose of conducting an election in accordance with the correct constitution, pending further order.

Parties
First Plaintiff: Minayar Dehsabzi; Second Plaintiff: Abdulhai Gomulwal; Third Plaintiff: Sayar Dehsabzi; Fourth Plaintiff: Abdul Quddus Ebrahimi; Fifth Plaintiff: Mohammed Hamed Hares; Sixth Plaintiff: Abdullah Ahmadi; Seventh Plaintiff: Mohammad Aisa Barez; Eighth Plaintiff: Mohammad Aymal; Ninth Plaintiff: Abdul Rasul Ebrahimi; Tenth Plaintiff: Shahwali Mangal; Eleventh Plaintiff: Mohmad Farooq Mangal; Twelfth Plaintiff: Abdul Malek Ebrahimi; Thirteenth Plaintiff: Abdul Qayoum Gomulwal; First Defendant: Afghan Community Support Association of NSW Incorporated; Second Defendant: Commissioner of Fair Trading, Departments of Finance, Services and Innovation; Third Defendant: Al Haj Nader Azamy; Fourth Defendant: Al Haj Arif Anwaryar; Fifth Defendant: Al Haj Mateen Tokhi; Sixth Defendant: Al Haj Noorul Yousufzai; Seventh Defendant: Shams Wasseh; Eighth Defendant: Mansur Mansuri; Ninth Defendant: Babrak Karmand; Tenth Defendant: Al Haj Gul Afghan Zaman; Eleventh Defendant: Al Haj Bibi Latifi
Jurisdiction
Australia
Judgment Date
10 July 2020
Procedural Posture
Equity/associations – Urgent Interlocutory Application / Interlocutory Determination of Urgent Application and Appointment of Receivers
Outcome
Orders granted (rectification of Register, appointment of receivers to conduct election, directions for election and process)
Legal Topics
Appointment of Receivers, Incorporated Associations, Valid Constitution Under Associations Incorporation Act, Invalid Elections, Rectification of Registers
Associations and Clubs Equity Appointment of Receivers Incorporated Associations Valid Constitution Under Associations Incorporation Act Invalid Elections Rectification of Registers

Case Brief

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Parties

Minayar Dehsabzi

First Plaintiff

Abdulhai Gomulwal

Second Plaintiff

Sayar Dehsabzi

Third Plaintiff

Abdul Quddus Ebrahimi

Fourth Plaintiff

Mohammed Hamed Hares

Fifth Plaintiff

Abdullah Ahmadi

Sixth Plaintiff

Mohammad Aisa Barez

Seventh Plaintiff

Mohammad Aymal

Eighth Plaintiff

Abdul Rasul Ebrahimi

Ninth Plaintiff

Shahwali Mangal

Tenth Plaintiff

Mohmad Farooq Mangal

Eleventh Plaintiff

Abdul Malek Ebrahimi

Twelfth Plaintiff

Abdul Qayoum Gomulwal

Thirteenth Plaintiff

Afghan Community Support Association of NSW Incorporated

First Defendant

Commissioner of Fair Trading, Departments of Finance, Services and Innovation

Second Defendant

Al Haj Nader Azamy

Third Defendant

Al Haj Arif Anwaryar

Fourth Defendant

Al Haj Mateen Tokhi

Fifth Defendant

Al Haj Noorul Yousufzai

Sixth Defendant

Shams Wasseh

Seventh Defendant

Mansur Mansuri

Eighth Defendant

Babrak Karmand

Ninth Defendant

Al Haj Gul Afghan Zaman

Tenth Defendant

Al Haj Bibi Latifi

Eleventh Defendant

Procedural Posture

Equity/associations – Urgent Interlocutory Application / Interlocutory Determination of Urgent Application and Appointment of Receivers

Legal Issues

  1. 1 Whether the 2014 Constitution was validly adopted by the Association
  2. 2 What constitution governs the affairs of ACSA
  3. 3 Whether past committee elections held under the 2014 Constitution were valid

Ratio Decidendi

There was a real likelihood the proposed election under the existing de facto committee would be invalid due to non-compliance with the applicable 2008 Model Rules, as the de facto committee's authority was in doubt and procedures did not comply with those Rules. To ensure validity and certainty in the Association's governance, the Court was justified in appointing independent receivers (agreed by the parties) to take control for the purpose of conducting an election in accordance with the correct constitution, pending further order.

Court Disposition

Orders granted (rectification of Register, appointment of receivers to conduct election, directions for election and process)

Orders

  • Order that the Register of Incorporated Associations be rectified to remove the 2014 Constitution (document N4710169) forthwith.
  • Appointment of four named persons as receivers/managers of the assets and undertakings of the Association for the limited purpose of conducting an election.