BETWEEN : ISLAMIC ASSOCIATION OF WANNEROO (INC)

Incorporated association - Charitable trust - Whether land held on trust - Trespass - Estoppel

Associations Incorporation Act 1987 (WA), s 10, s 11

Charitable Trusts Act 1962 (WA), s 21

Land Administration Act 1997 (WA), s 75

Baker's Creek Consolidated Gold Mining Co v Hack (1894) 15 LR(NSW) Eq 207

Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566

Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72

BSH Holdings Pty Ltd v Commissioner of State Revenue (2000) 2 VR 454

Clowes v Staffordshire Potteries Waterworks Co (1872) 8 Ch App 125

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226

Cooper v Crabtree (1882) 20 Ch D 589

Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605

Goodson v Richardson (1874) 9 Ch App 221

Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306

Jaggard v Sawyer [1995] EWCA Civ 1; [1995] 1 WLR 269

Liverpool & District Hospital For Diseases of the Heart v Attorney-General [1981] 1 Ch 193

Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583

Ocean Accident & Guarantee Corporation Ltd v Ilford Gas Co [1905] 2 KB 493

Orr v Ford [1989] HCA 4; (1989) 167 CLR 316

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635

R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39; (1923) 32 CLR 518

Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641

Roberts v Gwyrfai District Council [1899] 2 Ch 608

Secretary, Department of Health & Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218

Shelfer; Meux's Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

Wynne v Green (1901) 1 SR(NSW) 40

1 The plaintiff and the defendant are both associations incorporated pursuant to the provisions of the Associations Incorporation Act 1987 (WA) (the Act). Under the Act (s 10 and s 11), upon incorporation, an association becomes a body corporate and any property held by it is vested in the incorporated association. The plaintiff was incorporated on 12 November 1987.

2 Under the rules and constitution of the plaintiff, its membership is open to Malay Muslim residents, where the husband or wife is of Malay Muslim origin, and to their dependents in Western Australia. Although membership is limited in that way in relation to ethnicity, the objects of the plaintiff's association are directed to wider religious purposes concerning the promotion of Islamic faith, including the establishment and management of mosques (cl 2). The rules and constitution also contain detailed provisions, concerning the managing of the plaintiff and its affairs, including the appointment of an auditor (cl 14 - cl 20).

3 On 3 April 2001 the plaintiff was registered as the proprietor of certain land in Padbury. A mosque was built on the land and construction was completed in December 2001.

4 These proceedings concern, in substance, a long running dispute between the plaintiff and the defendant as to which entity is entitled to manage and operate the mosque, and to occupy the land for that purpose. The plaintiff alleges that the defendant has wrongfully occupied and used the land and the mosque. The defendant says that it was entitled to manage the mosque and occupy the land for that purpose.

5 For the reasons set out below, I have found that the defendant was a trespasser in the period 28 January 2005 to 3 January 2008 and that the defendant has no right to manage the mosque or occupy it for that purpose.

The history of the mosque and the acquisition and use of the land

6 The essential facts, which I recount below, are, for the most part, not in dispute. To the extent that there is any discrepancy between the parties, I mention the point and record my findings thereon. There is also an estoppel claim by the defendant which I deal with separately, later in these reasons.

7 The plaintiff's predecessor was the Christmas Island Moslem Association of Wanneroo. The members of that association comprised members of the Christmas Island Muslim community who were living in the northern suburbs of Perth. That group in the 1980s, and early 1990s, wished to build a mosque primarily to meet the needs of its community, but on the basis that the mosque would also be open to all members of the Islamic faith.

8 The State of Western Australia agreed in principle, and subject to conditions, to make the land in Padbury available for the proposed mosque. Although the land was to be made available at a cost significantly lower than market value, the acquisition of the land nevertheless required a capital contribution of approximately $42,000. Fundraising was undertaken and zoning issues were addressed.

9 On 2 March 1998 a committee was organised to manage and coordinate development and construction of the mosque. The committee was called the Hepburn Heights Mosque Building Committee (HHMBC). One witness, Mr Marsuki for the defendant, gave hearsay evidence in cross-examination that HHMBC was an incorporated entity. It is unnecessary to make a finding on that. Importantly, whether incorporated or not, HHMBC is and was a group or entity different from the defendant. Certain of HHMBC's work was undertaken through a Mr Leon Sparks. HHMBC was then, or at least grew to become, associated with people representing a broader Muslim constituency than the Christmas Island Malay community in Perth.

10 On 24 March 1998, the Department of Land Administration (DOLA) wrote a letter to the Christmas Island Moslem Association of Wanneroo and said, inter alia:

As explained at our meeting, DOLA must extract the best possible gain and a demonstrated public benefit from the land resources at its disposal.

The Christmas Island Moslem Association of Wanneroo has been unable to comply in any respect to the offer of this land for over four years now.

DOLA's current offer for conditional tenure land will remain for a period of two months after which the offer will lapse.

I cannot agree to the exclusive option which you propose as it is the Minister's right to sell or withhold land. Future release of land in this vicinity is of a low priority as DOLA wishes to see the existing grants through to full development.

11 Fundraising was undertaken by HHMBC, and by the plaintiff and its members, and other people of the Islamic faith. Approval for the building of a mosque was given by the City of Joondalup on 18 June 1999. By April 2001 the mosque was under construction. On 3 April 2001 the plaintiff became registered proprietor of the land.

12 The mosque was officially opened on 1 December 2001.

13 From its inception, there were conflicting claims in relation to the management of the mosque. On 29 October 2001, Mr Sparks, and certain representatives of the plaintiff, executed a document stating that the mosque would be run by the plaintiff.

14 In March 2002, Mr Marsuki, in the name of HHMBC, issued a notice to the wider Muslim community convening a public meeting at the mosque. The purpose of the meeting was to consider the management of the mosque.

15 By letter dated 19 March 2002, the plaintiff wrote to HHMBC contending that the mosque should be run by the plaintiff, and requesting that the proposed public meeting not be called.

16 The meeting nevertheless went ahead on 1 April 2002. Mr Marsuki, who gave evidence for the defendant in these proceedings, said that at the meeting, he 'together with a few others was elected to manage the Mosque'. Minutes of the meeting were tendered which also show that representatives of the plaintiff who attended the meeting sought to have the mosque handed over to and managed by the plaintiff, but this proposal was lost at a vote taken at the meeting.

17 Mr Marsuki said that after the meeting 'we then formed the Defendant'. That evidence is not strictly accurate because the defendant was not incorporated until 21 February 2003. According to Mr Marsuki:

The Defendant then managed, and continued, til 4 Jan 08, managing the affairs and day to day activities of the Mosque.

18 That evidence is correct insofar as it refers to the defendant's actual management of the mosque for a period of time after 21 February 2003, but it is not a complete or accurate account of what then occurred, as I explain below.

19 On 21 April 2002, in response to the meeting called by Mr Marsuki purportedly on behalf of HHMBC, the plaintiff convened a public meeting. According to the plaintiff's secretary, Mr Ginandjar, who gave evidence in these proceedings, the meeting voted for HHMBC to hand over the mosque to the plaintiff. Minutes of the meeting were tendered which confirmed this evidence.

20 Notwithstanding this vote, Mr Ginandjar says that he considered that divisions were running deep between the plaintiff and HHMBC, and that it was prudent, 'to attempt to resolve the impasse in a non-confrontational way, and to allow the defendant's members to continue to run the day-to-day affairs of the mosque until a resolution could be negotiated between the plaintiff and the defendant'.

21 Emails were exchanged between Mr Marsuki and Mr Sparks on 24 May 2002 regarding the history of the plaintiff's involvement in the mosque. Mr Marsuki accepted in cross-examination (ts 219) that he understood that the plaintiff was dissatisfied with the decision that Mr Marsuki and others would run the mosque. Mr Marsuki said that the defendant obtained what, he said, was its authority to run the mosque from the vote at the community meeting on 1 April 2002, and not by any authority given by the plaintiff (ts 219, 225).

22 On 21 February 2003 the defendant was incorporated. The plaintiff had objected to its incorporation at the time, on the basis of the dispute over the management of the mosque.

23 According to Mr Ginandjar, who I found to be a reliable witness, the dispute simmered over the next couple of years. At around this time, although the precise date is not clear, the defendant caused a shed to be erected on the plaintiff's land. The shed was used in conjunction with the management of the mosque. Mr Marsuki accepted (ts 222) that the plaintiff objected to the defendant building a shed on the land.

24 The plaintiff arranged for a mediation between the parties to be conducted by a mediator from Malaysia prior to 2005, but that mediation was unsuccessful.

25 On 7 January 2005 the plaintiff wrote to the defendant and gave notice to the defendant to vacate the property within 21 days. The notice said:

As the Registered Proprietor of the above property (Certificate of Title Volume 2214 Folio 144), we the Islamic Association of Wanneroo Inc hereby is to give [sic] the Al-Hidayah Mosque Inc notice to vacate the above property within 21 days from the date stated in this letter, 7 January 2004 [sic].

The Islamic Association of Wanneroo Inc has been patient enough to wait for this long since your unauthorised occupation of the completed Mosque in December 2001.

This notice is a final [sic], and if you do not vacate the above property within the above stated time, we the Islamic Association of Wanneroo Inc will instruct James Chong & Co to carry-out the issue of a summons for possession or action in trespass.

You are reminded that there was never an agreement between the Islamic Association of Wanneroo Inc and the Al-Hidayah Mosque Inc; granting you the Al Hidayah Mosque Inc the rights to occupy the above property.

26 In July 2005 the plaintiff commenced these proceedings. There was a court-appointed mediation which failed to resolve the differences.

27 On 27 December 2007, during the pendency of this litigation, the defendant issued a 'notice of infringement'. It stated that the defendant 'will disallow all intended future events held at the Mosque by [the plaintiff] ... barring all use of Al Hidayah Mosque facilities'. It also stated that all official religious events 'can only be approved, notified of, and conducted by the [defendant's] Management Committee'.

28 The 'infringement notice' was sent by the defendant to the plaintiff on 28 December 2007.

29 By 31 December 2007 the defendant had, without notice to the plaintiff, changed the locks on the office of the mosque. The defendant also appointed a new Imam to the mosque.

30 On 3 January 2008 the plaintiff wrote to the defendant and said, inter alia:

As the Registered Proprietor of the above property (Certificate of Title Volume 2214 Folio 144 - Attached), we the Islamic Association of Wanneroo Inc hereby is to take over all matters related to the Al-Hidayah Mosque Inc including but not least the management of the mosque - immediate effect.

This decision is final. Within two weeks, you shall cleared (or removed) any belonging considered to be yours from the Mosque. Please contact Hj Gupan, or Hj Shamsudin or Hj Thalip who normaly [sic] be in the property.

The Islamic Association of Wanneroo Inc has reached the above decision for the following reasons;

1. A warning letter dated 14 August 2007 (attached) was forwarded to you for your consideration and action.
2. Your Email dated Monday 17 September 2007 confirmed 'unwillingness to have meeting for mediation/discussion' (attached stated email); ie in other words you do not have the willingness 'to work together'.
3. In recent times you have organised (or planned) activities related to the Mosque without consultation (or discussion/meeting) with IAW.

1. Just to remind you that 'There was never a tenancy agreement between the Islamic Association of Wanneroo Inc (The Registered Proprietor) and yourselves the Al Hidayah Group granting you the right to occupy the property'.
2. We, the Islamic Association of Wanneroo Inc had been patient enough to wait to go to the court in July 2005 while you had occupied the property since the completion of the Mosque in December 2001.

Please be informed that all are welcome to use the Mosque for the day to day ritual/praying.

31 On or about 4 January 2008 the plaintiff took over the office and changed the locks. The plaintiff also replaced the former Imam.

32 From 4 - 17 January 2008 the mosque was opened only during prayer times, from 5.45 am to 9.00 pm. Since 18 January 2008 it has been open from 4.30 am to 9.00 pm daily, and in certain festive periods, such as Ramadhan, it remains open after 9.00 pm. Even when the mosque is not officially open for prayer or services, prayer mats are available in the foyer for anyone who wishes to pray outside formal prayer times.

33 The mosque is, and at all material times has been, open to any Muslim for prayer.

34 By transfer registered on 3 April 2001, the plaintiff became the registered proprietor of the land pursuant to s 75 of the Land Administration Act 1997 (WA) (the LAA). The transfer noted that the consideration for the transfer was $42,431 and that the value of the land was $640,000. The transfer noted that the plaintiff took subject to:

(a) the provisions of section 75 of the LAA:

(b) the condition that the due performance of the conditions contained in this Transfer and the other conditions imposed under section 75 of the LAA are to be secured by a charge on the land registered under section 16 of the LAA; and

(c) the provisions of section 16 of the LAA as to the other conditions contained in subclauses 2(b) and 2(c) set out below.

In accordance with section 75 of the LAA, the Transferee and the registered proprietors from time to time of the land covenant with the Minister for Lands as follows:

(a) not to use, or permit or suffer the land or any part of it to be used for any purpose other that [sic] as a worship centre;

(b) without limiting the generality of paragraph (a), not to use, or permit or suffer the land or any par to fit [sic] to be used:

(i) for any residential purpose whether temporary or permanent; or

(ii) for any illegal, improper or commercial purpose; and

(c) to observe and perform the other conditions contained in section 75 of the LAA.

36 Pursuant to s 16 of the LAA, a memorial of covenant charge was registered on 26 September 2001, by which the land was charged with the due performance of the conditions in the transfer. The memorial also provided that 'no dealings or other instruments are to be registered in respect of the land while this memorial remains registered'.

37 Section 75 of the LAA provides:

(1) The Minister may transfer Crown land in fee simple subject to such conditions concerning the use of the land (the specified use) as the Minister determines.

(2) For the purposes of this section and of section 76, the unimproved value of conditional tenure land must be calculated as if the use of the land were not subject to any conditions.

(3) The fee simple of conditional tenure land may be transferred under subsection (1) for a nominal price or a discounted price because of the community benefit to be provided by the proposed development of the conditional tenure land for the specified use.

(4) When conditional tenure land is used in breach of any condition concerning the specified use -

(a) the conditional tenure land is liable to be forfeited under section 35; and

(b) the Minister may recover from the holder of the freehold in the conditional tenure land -

(i) if the fee simple in the conditional tenure land was transferred under subsection (1) for a nominal price, an amount equal to the unimproved value of the conditional tenure land at the time of that recovery; or

(ii) if the fee simple in the conditional tenure land was transferred under subsection (1) for a discounted price, an amount calculated using the following formula -

(5) Neither the fee simple, nor any other estate or interest, in conditional tenure land can be transferred without the written permission of the Minister, which may be given subject to conditions.

(6) Conditional tenure land cannot become the subject of any licence, mortgage, charge, security or other encumbrance without the written permission of the Minister, which may be given subject to conditions.

(7) The Minister may by order, on the application of the holder of the freehold in conditional tenure land accompanied, subject to subsection (7a), by payment to the Minister of the relevant amount referred to in subsection (4)(b)(i) or (ii), cancel the conditions to which the use of the conditional tenure land is subject.

(7a) The Minister may in prescribed circumstances, with the prior approval of the Treasurer, waive in whole or part the payment of the relevant amount referred to in subsection (4)(b)(i) or (ii), subject to such conditions as the Minister determines.

(8) The rule against perpetuities does not apply to conditions referred to in subsection (1).

38 Section 72 of the LAA provides, inter alia, that 'conditional tenure land' means land transferred in fee simple subject to conditions referred to in s 75(1), which land remains subject to the conditions.

39 Section 16 of the LAA provides:

(1) If the Minister transfers Crown land in fee simple under section 75(1) subject to the condition that the due performance of other conditions by the holder of the freehold in the relevant land is to be secured by a charge on that land registered under this section, the Minister may lodge a memorial in an approved form with the Registrar.

(2) When the Registrar has registered a memorial and noted the Register accordingly, the due performance of conditions referred to in subsection (1) is a charge on the subject land for the benefit of the Minister.

(3) If a registered memorial referred to in subsection (2) -

(a) states that no dealings or other instruments are to be registered in respect of the subject land while that memorial remains registered under this section, that memorial has effect accordingly; or

(b) does not so state, that memorial is merely notice of its contents to those concerned with the subject land.

(4) If any default is made in respect of the performance referred to in subsection (2) while the relevant memorial remains registered, the Minister has the same powers of sale over the subject land as are given by the TLA to a mortgagee under a mortgage in respect of which default has been made in the payment of principal.

(5) If the Minister determines that a charge in respect of which a memorial referred to in subsection (2) is registered is no longer required, the Minister may request the Registrar to cancel that memorial.

(6) On receiving a request made under subsection (5), the Registrar must cancel the relevant memorial and by doing so remove the charge from the subject land.

(7) In this section -

the subject land means land referred to in subsection (1).

40 Section 35 of the LAA provides:

(1) If in the opinion of the Minister there has been a breach of any condition or covenant subject to which -

(b) the freehold of any land transferred in fee simple under section 75(1) is held, the Minister must, if the Minister intends to cause the forfeiture of that freehold under this section, give to the holder of that freehold,

(the respondent) notice of the nature of that breach and of that intention.

(2) A respondent may, within the period of 30 days after the giving to him or her of notice under subsection (1) or such longer period as the Minister in special circumstances allows, lodge an appeal against the proposed forfeiture with the Minister under Part 3.

(3) If no appeal is lodged within the period referred to in subsection (2) or an appeal is lodged within that period but subsequently lapses, is withdrawn or is dismissed, the Minister may by order cause the relevant interest or freehold to be forfeited.

(4) On the registration of an order made under subsection (3) -

(a) the interest or freehold to which that order relates is forfeited to the State and the relevant land -

(i) becomes unallocated Crown land; or

(ii) if a sublease or caveat continues to have effect under an exemption granted under subsection (5)(a)(i), becomes or remains Crown land;

(b) any moneys paid to the Minister in respect of that interest or freehold cannot be recovered by the respondent; and

(c) any improvements made by the respondent on the land to which that interest or freehold relates become the property of the Crown.

(5) Despite the forfeiture of an interest or freehold under this section -

(i) by order exempt from that forfeiture any existing sublease or caveat relating to the land the subject of the interest or freehold, and a sublease or caveat so exempted continues to have effect; and

(ii) cause any improvements made by the former holder of the interest or freehold to be valued by agreement with the former holder or, failing any such agreement, by arbitration under the Commercial Arbitration Act 1985 to enable the value of improvements, less any moneys owing to the Minister by that holder, to be paid to that former holder if the Minister thinks fit;

(b) the respondent remains liable to pay any moneys payable to the Minister in respect of the interest or freehold before the date of that forfeiture.

(a) continues to have effect under an exemption granted under subsection (5)(a)(i); and

(b) is not already registered,

must be registered against the parcel of Crown land concerned as soon as practicable after the granting of that exemption.

(7) Despite the terms of the exemption under subsection (5)(a)(i) under which a sublease continues to have effect, the Minister may, with the consent of the sublessee, by order vary the terms of the sublease.

(8) The Minister may -

(a) charge the respondent interest ... at the date of the forfeiture under subsection (4)(a) of the relevant interest or freehold, compounded in respect of each completed period of 6 months during which any of the moneys concerned remain unpaid, on any moneys payable to the Minister in respect of that interest or freehold before the date of that forfeiture but remaining unpaid; and

(b) recover from the respondent as a debt due to the Minister by action in a court of competent jurisdiction the amount of any unpaid interest charged under this subsection.

(9) The acceptance or demand by the Minister of an amount less than the total amount of any unpaid moneys referred to in subsection (8)(a) does not constitute a waiver by the Minister of his or her right -

(a) to receive payment of the balance of those unpaid moneys; or

(b) to enforce the observance of any condition or covenant subject to which the relevant interest or freehold was held before it was forfeited under this section.

(10) If the land the subject of an interest or freehold forfeited under this section is not required for any public purpose, that land may, unless any sublease or caveat continues to have effect under an exemption granted under subsection (5)(a)(i), be dealt with under this Act in the same way that any other unallocated Crown land may be dealt with.

(11) If there are any improvements on land referred to in subsection (10), the Minister may ascertain the value of those improvements and add that value to the price payable for an interest in, or the freehold of, that land.

(12) An order -

(a) made under subsection (3) in respect of an interest in Crown land; and

(b) registered,

is equivalent to a re-entry and recovery of possession by or on behalf of the Crown within the meaning of any provision for re entry expressed in, or implied by, the relevant lease or other instrument.

The plaintiff's claim and the relevant legal principles

41 The plaintiff alleges that the defendant has, without the consent of the plaintiff, occupied and used the land. It seeks declaratory and injunctive relief.

42 Intentional invasions of land, whether resulting in harm or not, without the consent, leave or licence of the person in possession or entitled to possession, are actionable in trespass: Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 639. The policy of the law is to protect the possession of property: Plenty v Dillon (647).

43 The onus is on the defendant, who claims to have the consent, leave or licence of the plaintiff, to plead and prove that fact: Plenty v Dillon (647); Secretary, Department of Health & Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218, 311.

44 Trespass may be committed not only by an initial unauthorised entry on the plaintiff's land, but also by failing to leave the land once a licence to enter has terminated: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605.

45 A person with a right to immediate possession is deemed, on entry, to have been in possession since the right to entry accrued, so as to enable that person to sue for a trespass committed at a time antecedent to the entry: Ocean Accident & Guarantee Corporation Ltd v Ilford Gas Co [1905] 2 KB 493; Wynne v Green (1901) 1 SR(NSW) 40.

46 Where there is a dispute as to which of two persons is actually in possession of premises, the law considers the one with legal title to be in possession: Baker's Creek Consolidated Gold Mining Co v Hack (1894) 15 LR(NSW) Eq 207, 226.

47 An injunction may lie to restrain a trespass to real property.

48 There are cases in which damages have been held not to afford an adequate remedy where a repeated infringement of property rights occurs or is threatened and damages would be minimal and not serve as a deterrent. See Beswicke v Alner [1926] VicLawRp 10; [1926] VLR 72; Clowes v Staffordshire Potteries Waterworks Co (1872) 8 Ch App 125, 142; Goodson v Richardson (1874) 9 Ch App 221, 226 - 227; Roberts v Gwyrfai District Council [1899] 2 Ch 608, 614 - 615; cf Cooper v Crabtree (1882) 20 Ch D 589, 593.

49 Ultimately, however, the question remains whether monetary compensation would, in all the circumstances, provide an adequate remedy: R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39; (1923) 32 CLR 518, 550 - 551; Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306, 325 - 326.

50 Thus, it has also been held that even in relation to real property, where the injury to the plaintiff's legal rights is small, and is one which is capable of being estimated in money, and is one which can adequately be compensated by a small money payment, and the case is one in which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given: Shelfer; Meux's Brewery Co v City of London Electric Lighting Co [1895] 1 Ch 287, 322 - 323; Jaggard v Sawyer [1995] EWCA Civ 1; [1995] 1 WLR 269.

51 The defendant pleaded, in substance, four issues by way of defence and counterclaim. First, it was said that the plaintiff holds the land as trustee for a charitable, ie religious, trust and that its attempt to enforce its legal rights is in breach of trust. Secondly, it was said that the plaintiff had expressly or impliedly consented to the defendant occupying the land and managing the mosque. Thirdly, it was said that the plaintiff is estopped from enforcing its legal rights, or is precluded from doing so by reason of acquiescence or laches. Fourthly, it was said that the defendant's members had an irrevocable licence to enter and occupy the land for certain purposes. The first and third issues were said, in the counterclaim, to give rise to an entitlement to the defendant to manage the mosque and thereby to occupy it for management purposes. Counsel for the defendant, in closing submissions (ts 256 - 257, 261) made it clear that the fourth issue was not raised as an aspect of the defendant's alleged entitlement to manage the mosque. It was, he said, simply put on the basis that the defendant's members have an entitlement to use the mosque for worship and prayer. The plaintiff, for its part, made it clear that it does not dispute that the defendant's members may attend the mosque for worship and prayer. That accords with the evidence. The fourth issue may be put to one side.

52 The defendant by its counterclaim, seeks various orders including declarations to the effect that the plaintiff holds the land and mosque 'as trustee for the local Muslim Community', and that it is entitled to manage the mosque. It also seeks a mandatory injunction requiring the plaintiff to hand over 'all keys to the Land and the Mosque', and an injunction to restrain the plaintiff from interfering with the defendant's management of the mosque.

Further findings relevant to the plaintiff's claim

53 I will deal separately with each issue raised by the defendant, below. At this point I record the essential findings relevant to the plaintiff's claim, bearing in mind the earlier findings as to the history of the mosque and the acquisition and use of the land.

54 In the period, 1 April 2002 to 6 January 2005, the plaintiff knew that the defendant or its members were managing the mosque and occupying the mosque and in particular the office for that purpose, and that they had erected the shed. The plaintiff did not expressly authorise the defendant to manage the mosque on its behalf, or to occupy it for that purpose, or to erect the shed, but it took no steps to restrain the defendant because it wished to resolve the dispute about management in a way which did not involve physical or legal confrontation. In my view, the defendant, in the period after its incorporation up to 6 January 2005, had the implied leave of the plaintiff, albeit under sufferance, to occupy the mosque for management purposes. It was not, in this period, in my view a trespasser.

55 On 7 January 2005 that situation changed. The plaintiff gave a notice requiring the defendant to vacate the mosque within 21 days, ie by 28 January 2005. Thereafter the defendant was on notice that its implied leave had been terminated. Its continued occupation of the mosque for management purposes rendered it a trespasser. There was no restoration of the earlier implied leave. The notice was followed, in July 2005, by the commencement of these proceedings by the plaintiff which included claims for injunctive relief. The fact that until 3 January 2008, the defendant in fact remained in occupation pending the determination of these proceedings, did not alter the unlawful nature of its occupation in the period 28 January 2005 to 3 January 2008.

56 The defendant alleges, in effect, that the land was acquired by the plaintiff on trust for the local Muslim community and holds the land on trust for charitable purposes. It asserts that the Muslim faith is a congregational and non-hierarchical religion in which mosques are operated or managed by persons elected by the local religious community, that the meeting of 1 April 2002 conferred authority on the members of the defendant to manage the mosque and that, accordingly, the plaintiff was in breach of trust by its conduct in removing the defendant as manager of the mosque.

57 I will return to the question of whether the plaintiff holds the land pursuant to a charitable trust. At the outset it is appropriate to mention the position of the Attorney General in these proceedings.

58 It is the duty of the Crown, as parens patriae, to protect property devoted to charitable purposes, which duty is, under the general law, executed by the Attorney General. The Attorney General represents the beneficial interest, ie the object of the charity. See Heydon JD & Leeming MJ, Jacobs' Law of Trusts in Australia, (7th ed, 2006) [1067].

59 Thus, at general law, the Attorney General, with or without a relator, is the proper and only competent party to protect the charitable trusts and to seek to enforce them and to look after the interests of the public in those trusts: Bathurst City Council v PWC Properties Pty Ltd [1998] HCA 59; (1998) 195 CLR 566, 583.

60 In Western Australia, by statute, the Attorney General, an officer of the Public Service or 'any other person' may apply to the court in respect of any property, money or income subject to a trust for a charitable purpose for certain orders, including requiring the trustees to carry out the trusts on which the property is held: s 21(1)(a) of the Charitable Trusts Act 1962 (WA). By s 21(2) of that Act, the application must be served on the trustees and on the Attorney General. By s 21(3), the court may decide what persons shall be heard before it in support of, or in opposition to, the application.

61 Prior to the trial, the papers in these proceedings were served on the Attorney General. The Attorney General's position was set out by the State Solicitor's Office in a letter dated 28 May 2009, and confirmed at a subsequent directions hearing. The Attorney General's position was stated to be as follows:

1. The Attorney General does not consider that a transfer of conditional tenure land under the comprehensive scheme provided for in the Land Administration Act 1997 (LAA) is capable of giving rise to a charitable trust; it is a transfer authorised and regulated by statute, for which the remedies (up to and including forfeiture in an appropriate case) [see LAA s75 (4) - (7a)] are also and entirely statutory and may be pursued at the instigation of the transferor Minister for Lands. That conclusion is not affected by the fact that the identified 'common benefit' which has authorised the sale by the State at a discount [see LAA s75 (3)] also happens to be a use of the property (eg. the advancement of religion) which in different circumstances might cause an express trust (by transfer) to be classified as a 'charitable trust'.

2. Therefore, this is not considered to be a case which calls for the Attorney General's involvement, and it is further noted that in the present case both sides of the 'trust argument' are adequately and appropriately represented by the existing parties.

62 With the Attorney General's position having been so noted, the hearing proceeded without the Attorney General being made a party.

63 An essential element of a trust is that the trustee must be under a personal obligation to deal with the trust property for the benefit of the beneficiaries, or in the case of a charitable trust, for the charitable purpose to which the trust property is devoted. The obligation is summarised in Heydon & Leeming, Jacobs' Law of Trusts in Australia, [110]:

The obligation must be annexed to the trust property. This is the equitable obligation proper. It arises from the very nature of a trust and from the origin of the trust in the separation of the common law and equitable jurisdiction in English legal history. The obligation attaches to the trustee in personam, but it also is annexed to the property, so that the equitable interest resembles a right in rem. It is not sufficient that the trustee should be under a personal obligation to hold the property for the benefit of another, unless that obligation is annexed to the property. Conversely, it is not sufficient that an obligation should be annexed to the property unless the trustee is under a personal obligation.

64 A charitable trust is for a purpose, not a person, so the trust does not have beneficiaries: BSH Holdings Pty Ltd v Commissioner of State Revenue (2000) 2 VR 454, 456. Amongst the recognised purposes is the advancement of religion: Radmanovich v Nedeljkovic [2001] NSWSC 492; (2001) 52 NSWLR 641 [147].

65 A charitable trust is a form of express trust: Heydon & Leeming, Jacobs' Law of Trusts in Australia, [1001].

66 An express trust involves the creator of the trust using language which expresses an intention to create a trust. The language must explicitly or impliedly express the intention to create a trust. A trust may even be deduced from the conduct of the parties concerned, but if there is any uncertainty as to intention, there will be no trust: see Heydon & Leeming, Jacobs' Law of Trusts in Australia, [306].

67 In Radmanovich v Nedeljkovic Young CJ in Eq said [149]:

If a trust for the advancement of religion is set out in some formal document in full and complete terms, there is no problem in ascertaining what the trusts are which affect the fund or property. However, in many instances the trusts will be imperfectly spelt out. It has long been recognized that to ascertain what are the terms of the trusts is a most difficult matter of fact for a court. What must be discovered is the intention of the founders.

68 The Legislature has, on occasion, adopted the concept of a trust as part of a legislative scheme: see the discussion in Ford H & Lee WA, Principles of the Law of Trusts (loose-leaf) [1.050].

69 Where there is an out and out gift to a corporation for its purposes '[t]here is no element of a charitable trust in such a gift': Radmanovich v Nedeljkovic [109].

70 Further, the creation of a trust is to be contrasted with the transfer of property on condition. Property may be transferred subject either to a condition precedent or a condition subsequent. See generally Heydon & Leeming, Jacobs' Law of Trusts in Australia, [230] - [233].

71 In Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583, 605 - 606, Brennan J said:

[T]he donee may take the property given either as a trustee or beneficially and, if beneficially, he may take it subject to defeasance if the assurance should not be fulfilled or subject to a personal obligation to fulfil the assurance or subject to a charge securing fulfilment of the assurance (particularly if it involves the payment of money). ... A condition annexed to a gift may be of either of two kinds: a condition involving a forfeiture for non-fulfilment, or a condition creating merely a personal obligation to fulfil it. A donee who takes a gift to which a condition of the latter kind is annexed incurs an equitable obligation to perform the condition: Countess of Bective v Federal Commissioner of Taxation [1932] HCA 22; (1932) 47 CLR 417 at 418-9). Lindley LJ in In Re Williams; Williams v Williams [1897] 2 Ch 12 at 19, said:

'... there is no difficulty in disposing of one's own property upon condition express or implied that the person who takes it shall do something himself, eg, shall dispose of his property in a particular way indicated by the owner of the property which he accepts. Moreover, a condition of this kind is enforceable in equity, and need not amount to a common law condition - ie, a condition involving a forfeiture of the property taken subject to the condition - if that condition is not performed.'

...

Whether a condition is such that its non-fulfilment involves forfeiture of the property given depends upon the intention of the donor communicated to the donee at the time when the latter accepts the property, that is, the intention which the donee reasonably understands to be the donor's intention from what the donor has said or done.

72 I have set out the terms of the transfer of the land to the plaintiff, and the statutory scheme in which the transfer occurred. In my opinion, the terms of the transfer and the statutory language pursuant to which it was effected, do not reveal any intention by the Minister to convey the land to the plaintiff on trust. In my opinion, it is clear that the transfer involved the conveyance of both the legal and beneficial interest of the land to the plaintiff, subject to defeasance in accordance with the statutory regime if the conditions of transfer were not adhered to.

73 One further matter requires mention, concerning the decision in Liverpool & District Hospital For Diseases of the Heart v Attorney-General [1981] 1 Ch 193. With reference to that decision, the defendant submits that the plaintiff is to be regarded as, at least in a broad sense, the trustee of the land for charitable purposes.

74 In that case, a charitable association was formed under the English corporations law as a company limited by guarantee. Its constitution provided that it was to apply its property towards the promotion of its charitable objects, and that in the event of a winding-up, its surplus property should not be distributed to its members but be transferred to an institution having similar objects. On an application by the Attorney-General under The Charities Act 1960 (UK) for the winding up of the company, an issue arose as to how the surplus assets of the company should be distributed. It was held that a company formed for charitable purposes, although in an analogous situation to that of a trustee, was not in a strict sense a trustee, and therefore it was both the legal and beneficial owner of its assets and, accordingly its surplus assets were to be disposed of in accordance with the provisions of the relevant corporations law. It was also held that, as its constitution provided for the distribution of surplus to a similar charitable body, the members were excluded, by contract and the operation of a provision of the relevant corporations law, from any interest in the surplus. It was also held that, in those circumstances, the court had power to order a cy-pres scheme to apply the surplus to a similar charitable organisation under the court's statutory jurisdiction with respect to charities.

75 The plaintiff's constitution (cl 2, cl 5 and cl 6) has similar provisions to those which were considered in Liverpool & District Hospital v Attorney-General.

76 In my opinion the case is not, in the end, of any assistance to the defendant. First, it ultimately concerned the jurisdiction of the court with respect to charities under the relevant UK legislation (The Charities Act 1960). Secondly the issues addressed in that case would, in Western Australia, be considered in the context of s 33 of the Act which provides for the distribution of surplus property of an incorporated association. Thirdly, whilst the case is authority, in England, for the proposition that the court has the relevant statutory jurisdiction with respect to a corporation whose objects are for charitable purposes, on the basis that the position of such a company in relation to its assets is analogous to that of a trustee for charitable purposes, the decision is, more importantly for present purposes, authority for the proposition that the company nevertheless holds the beneficial interest in its assets. Fourthly, the decision highlights the difference between the charitable purpose company and its relationship with its assets in that case, and the plaintiff and its ownership of the land in this case. Whatever may be the position with respect to the plaintiff's other assets, the land in this case is not, in my view, to be treated as an asset of a charitable trust because the beneficial and legal interest in the land is, in effect, to be returned to the State upon forfeiture, and the land thereupon becomes unallocated Crown land: s 35 LAA.

77 Even if there were a charitable trust, in my opinion there has been no breach of trust. The land has been applied to establish a mosque for prayer and worship. Accordingly, it could not be said, in my view, that the land has not been applied in accordance with the objects of the plaintiff's constitution. Nor could it be said that the plaintiff is not entitled to manage the mosque. Express provision for this is made in cl 2.13 of its rules and constitution. As I have noted, there are also detailed provisions for management of the plaintiff and its affairs: cl 14 - cl 17.

78 Accordingly, I am unable to accept the first defence raised by the defendant.

79 The estoppel plea in the defence and counterclaim is to the effect that (pars 5, 10 - 17, 22 - 24):

• members of the defendant and/or HHMBC devoted time and money to the construction of the mosque;
• the members did so assuming that they would be allowed, or entitled, indefinitely to enter the land and mosque without hindrance;
• the assumption was induced by the plaintiff;
• had the plaintiff informed the defendant's members prior to 1993, or prior to 1998, that their assumption was erroneous, they would not have acted to their detriment, they would have prevented the land being registered in the plaintiff's name and the land would not have been acquired for the benefit of the community and other Muslims.
• the defendant's members also acted as managers of the mosque on the assumption they could only be removed by the local Muslim community and so acted to their detriment.

80 In its written submissions, the defendant alleged that there was an estoppel by convention, and referred to Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226, 244 - 245. In oral argument the defendant also alleged, as I understood it, promissory estoppel: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387.

81 The defendant's estoppel case seemed to me to be indistinguishable, in substance, from its claim that the plaintiff was precluded from exercising its legal rights by reason of acquiescence: cf Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 337 - 338.

82 In my view the defendant's plea of estoppel does not disclose an arguable cause of action in the defendant. Amongst the difficulties with the plea are that it is directed to the conduct, assumptions and reliance of the defendant's members, or HHMBC's members, and not the defendant, and much of the alleged reliance and detriment occurred prior to the defendant coming into existence. Insofar as an estoppel by convention is relied upon, there is no plea that both parties adopted the alleged assumptions as the conventional basis of their relationship.

83 Nor, in any event, did the defendant's evidence sustain any recognisable estoppel in favour of the defendant. Two witnesses were called.

84 One, as I have noted, was Mr Marsuki. He was a member of HHMBC and is, and has been since its foundation, a member of the defendant. He was a treasurer of HHMBC and, subsequently, of the defendant up to 2008.

85 Mr Marsuki said in-chief, in relation to the estoppel claim:

1. At all material times, in accepting the post of office bearer [treasurer] of HHMBC and in carrying out my duties in such capacity, I acted in the belief and on the assumption, and in reliance on the belief and assumption that

(a) the land and mosque belonged to the local Muslim community,

(b) its affairs and day to day activities would [be] carried out in accordance with the wishes of the local Muslim community and managed by persons appointed or elected by the local Muslim community and not at the discretion of the title holder of the land,

(c) no Muslim, irrespective of race or place of origin, would be denied entry into the land and the Mosque.

1. At all material times, in accepting the post of office bearer [treasurer] of the Defendant and in carrying out my duties in such capacities, I acted in the belief and on the assumption, and in reliance on the belief and assumption, that

(a) the land and mosque belonged to the local Muslim community and

(b) members of the Defendant could, individually or collectively, only be removed or prevented from carrying out their duties by the local Muslim community.

1. I continued acting on the assumption, even after I became aware that the title to the land had been registered in the Plaintiff's name, believing at all times that the Plaintiff held such title on behalf of the local Muslim community and that it would act according to, and not contrary to, the wishes of the local Muslim community.
2. I together with other members of [the] Defendant devoted considerable amount of our time (mostly on weekends), resources and energy to the above tasks, roles and duties.
3. It is and was, at all material times, a matter of great religious importance and significance and an honour and privilege to me that, as a member of HHMBC and the Defendant, I was and would be devoting my time effort and energy to the Muslim community as a whole as beneficial owners of the land and the Mosque and not to an association that had the power to remove me or the Defendant as manager at its discretion.
4. At any time prior to accepting the posts or during my tenure as a member of HHMBC and the Defendant, had I been made aware that the Plaintiff or the eventual title holder of the land, at its discretion and without the consent of the community as a whole, would have the power to remove managers democratically elected by the community as a whole, I would most certainly not have accepted the posts and would not have carried out the respective duties and tasks.
5. Such power was totally abhorrent to the beliefs I held as a Muslim.
6. Instead, I would have devoted those days and hours spent carrying out the respective duties and tasks as a member of the HHMBC and the Defendant to spending quality time with my family and other community work.

86 In cross-examination (ts 229 - 231) Mr Marsuki said in relation to the above evidence that he did not conduct himself on the basis of anything the plaintiff said or did. He also said that when he was referring to what he would otherwise have done with his time, were it not for the assumptions that he said he made, he was referring to what he, in his personal capacity, would otherwise have done with his life. He was not speaking about the conduct of the defendant as an entity.

87 I accept Mr Marsuki's evidence in this regard as clarified in cross-examination.

88 The defendant also called Mr Daud Draman. Mr Draman's witness statement was, for the greater part of it, word-for-word identical with Mr Marsuki's statement. It became obvious, in cross-examination, that he had signed the statement without really knowing or understanding its contents. His evidence-in-chief was, in my view, unreliable. I accept his evidence only insofar as he said, in effect, in cross-examination that he would have personally done whatever work he did at the mosque whether the plaintiff or the defendant had then been managing it, and that the mosque is open to non-Malay Muslims.

89 In light of the foregoing, in my view the defendant has not established its estoppel claim. The evidence does not satisfy the probanda referred to by Brennan J in Waltons Stores v Maher (428 - 429), nor does it establish an estoppel by convention.

90 Insofar as the defendant sought to rely on laches in itself as an equitable defence, that defence is not available to a legal claim: Orr v Ford (340). A claim in trespass is a legal claim. Accordingly, in my view, the defendant has not established this defence either.

91 For these reasons, the defendant cannot, in my view, succeed on its counterclaim, and the counterclaim should be dismissed.

92 It remains to consider the question of the appropriate relief for the plaintiff. The plaintiff, in closing submissions, proposed orders which I understand were intended to be to the following effect:

1. A declaration that the defendant, by itself, its officers, servants, agents or otherwise, is not entitled to enter upon or occupy the land, being the whole of the land comprised in Certificate of Title Volume 2214 Folio 144, situate at 64 Walter Padbury Boulevard, Hepburn Heights, Padbury ('the Land'), for the purposes of managing, administering or in any way conducting the affairs of the Mosque situated on the Land.
2. A permanent injunction be granted that the defendant, by itself, its officers, servants, agents or otherwise, be and is hereby perpetually restrained from entering or occupying the Land for the purposes of managing, administering or in any way conducting the affairs of the Mosque situated on the Land.
3. The orders in paragraphs 1 and 2 above do not operate in any way to preclude any Muslim from attending the Mosque situated on the Land for the purposes of prayer and religious observance.

93 The proposed orders are more confined than the orders originally sought in the statement of claim, and better reflect the true nature of the dispute between the parties as it emerged through the counterclaim and reply to counterclaim and in the evidence at the hearing. The plaintiff also has not pressed its original claim for damages.

94 It seems to me, however, that in the exercise of my discretion, it is unnecessary to grant a permanent injunction as proposed by the plaintiff. The reason is that there is no evidence that since about 4 January 2008, the defendant has physically occupied, or attempted to occupy, the mosque or take over its management. The plaintiff says that despite this, the defendant is still seeking a return to occupancy and management through its counterclaim. That is undoubtedly so, but there is no suggestion that if the defendant's counterclaim were dismissed, and a declaration were made in accordance with the plaintiff's first proposed order, the defendant would attempt to assert a position inconsistent with that found and declared by the court.

95 I would propose to make orders in terms of the plaintiff's proposed first order. I would also dismiss the counterclaim. I will hear the parties on any further or other orders, and costs.