Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638

Khan v Khan; Re Islamic Association Western Suburbs Sydney Inc [2015] NSWSC 638

The meeting of 2 March 2014 was invalid because there was no valid requisition by at least 5% of members, as required by the association's constitution, and neither the requisition nor the accompanying petition sufficiently stated the purpose of the meeting or were in a similar form as required. Further, what was done at the meeting (removal of some but not all executive members) materially diverged from the purpose stated in the requisition and petition (which contemplated dissolution of the executive), constituting more than a procedural irregularity. Such deficiencies could not and should not be validated under s 1322 of the Corporations Act because to do so would cause substantial...

Parties
First Plaintiff: Aijaz Ahmed Khan; Second Plaintiff: Masud Akbar Cheema; Third Plaintiff: Nasib Mohammed; Fourth Plaintiff: Mohammad Yousuf; Fifth Plaintiff: Mohammed Sohaib Malak; Sixth Plaintiff: Shahab Uddin Siddiqui; Seventh Plaintiff: Mukhtar Qazi; First Defendant: Shahzad Khan; Second Defendant: Sohail Shamim; Third Defendant: Rafay Siddique; Fourth Defendant: Sammih Khan; Fifth Defendant: Zulfiqar Ali; Sixth Defendant: Mahmood Khan; Seventh Defendant: Nizam Ali; Eighth Defendant: Islamic Association Western Suburbs Sydney Inc
Jurisdiction
Australia
Judgment Date
27 May 2015
Procedural Posture
Civil / Final Judgment After Hearing
Outcome
Plaintiffs succeeded. Declaration granted that the 2 March meeting was invalidly convened. Cross-claim by defendants dismissed. Defendants to pay plaintiffs' costs as agreed or assessed. Parties to bring in agreed short minutes of order within 14 days.
Legal Topics
Management and Administration of Incorporated Associations, Requisition and Validity of General Meetings, Procedural Irregularity Under Corporations Act S 1322, Interpretation of Association Constitutions, Removal of Office Bearers, Validity of Meeting Notices
Corporations Law Associations Law Equity Management and Administration of Incorporated Associations Requisition and Validity of General Meetings Procedural Irregularity Under Corporations Act S 1322 Interpretation of Association Constitutions Removal of Office Bearers +1 more

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Parties

Aijaz Ahmed Khan

First Plaintiff

Masud Akbar Cheema

Second Plaintiff

Nasib Mohammed

Third Plaintiff

Mohammad Yousuf

Fourth Plaintiff

Mohammed Sohaib Malak

Fifth Plaintiff

Shahab Uddin Siddiqui

Sixth Plaintiff

Mukhtar Qazi

Seventh Plaintiff

Shahzad Khan

First Defendant

Sohail Shamim

Second Defendant

Rafay Siddique

Third Defendant

Sammih Khan

Fourth Defendant

Zulfiqar Ali

Fifth Defendant

Mahmood Khan

Sixth Defendant

Nizam Ali

Seventh Defendant

Islamic Association Western Suburbs Sydney Inc

Eighth Defendant

Procedural Posture

Civil / Final Judgment After Hearing

Legal Issues

  1. 1 Whether special general meeting of 2 March 2014 was validly called and held under the association's constitution
  2. 2 Whether requisition for the meeting satisfied constitutional requirements (5% requisition and proper purpose)
  3. 3 Whether defects in requisition or notice could be cured by s 1322 of the Corporations Act 2001 (Cth)

Ratio Decidendi

The meeting of 2 March 2014 was invalid because there was no valid requisition by at least 5% of members, as required by the association's constitution, and neither the requisition nor the accompanying petition sufficiently stated the purpose of the meeting or were in a similar form as required. Further, what was done at the meeting (removal of some but not all executive members) materially diverged from the purpose stated in the requisition and petition (which contemplated dissolution of the executive), constituting more than a procedural irregularity. Such deficiencies could not and should not be validated under s 1322 of the Corporations Act because to do so would cause substantial...

Court Disposition

Plaintiffs succeeded. Declaration granted that the 2 March meeting was invalidly convened. Cross-claim by defendants dismissed. Defendants to pay plaintiffs' costs as agreed or assessed. Parties to bring in agreed short minutes of order within 14 days.

Orders

  • Declaration that the special general meeting of the Islamic Association Western Suburbs Sydney Inc held on 2 March 2014 was not validly convened or held in accordance with the association's constitution.
  • The defendants' cross-claim for validation of the meeting is dismissed.