House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc & Ors

Supreme Court of NSW|2009-08-18|Before: Nicholas J

Reported Decision : 231 FLR 362 73 ACSR 446

CITATION : House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc & Ors [2009] NSWSC 817 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 11.03.09, 12.03.09, 13.03.09, 18.06.09, 19.06.09 plaintiff's further submissions 30.06.09

Associations Incorporation Act 1984 Charitable Fundraising Act 1991 Real Property Act 1900 LEGISLATION CITED : Trustee Act 1925 Commonweath of Australia Constitution Act 1900 (Cth) Corporations Act 2001 (Cth) Judiciary Act 1903 (Cth)

Andco Nominees Pty Ltd v Lestato Pty Ltd (1995) 17 ACSR 239 Assets Company Ltd v Mere Roihi [1905] AC 176 Attorney-General (Vic) v Andrews [2007] HCA 9; (2007) 230 CLR 369 Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376 Brunker v Perpetual Trustee Co Ltd [1937] HCA 76; (1937) 59 CLR 140 Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47 CASES CITED : Davis v Williams [2003] NSWCA 371 Re Residential Tenancies Tribunal (NSW); ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447 Victoria v The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 Wolfson v Registrar-General (NSW) [1934] HCA 29; (1934) 51 CLR 300

House of Peace Pty Ltd - plaintiff PARTIES : Bangladesh Islamic Centre of New South Wales Inc - first defendant Fakhruddin Chowdhury - second defendant Registrar-General of NSW - third defendant

B Levet/A Kumar - plaintiff COUNSEL : D Caspersonn - first and second defendants P Walsh - third defendant

V F Stanizzo Lawyers - plaintiff SOLICITORS : David Hand Solicitor - first and second defendants K O'Keefe for Registrar-General of NSW - third defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2680/06 House of Peace Pty Ltd v Bangladesh Islamic Centre of New South Wales Inc & Ors JUDGMENT 1 His Honour: By its amended summons filed 9 June 2006 the plaintiff seeks a declaration that transfer no. 9591497K made on 8 April 2003 by which its land at Sefton was transferred to the first defendant is void, and orders to the effect that the dealing be set aside, and that the first defendant retransfer the land to the plaintiff. 2 The first ground for relief is that the conduct of the second defendant as agent of the first defendant in procuring the registration of the transfer amounted to fraud within the meaning of s 42 Real Property Act 1900 (the Act) and thus the purported transfer to the first defendant was ineffective. 3 The second ground for relief is that the purported transfer and/or its registration was ineffective because there is a direct inconsistency between s 42 of the Act and s 601AD and s 601AE Corporations Act 2001 (Cth) (Corporations Act) with the result that, under s 109 Commonwealth Constitution, s 42 is invalid. 4 The plaintiff became the registered proprietor of the land in about July 1995. The land consists of the two lots comprised in FI 1/13939 and 2/13939. At all material times the first defendant has been an entity registered under the Charitable Fundraising Act 1991, and the ultimate holding company of the plaintiff. It funded the purchase of the land by the plaintiff from money provided by its supporters on which it subsequently established a mosque. The second defendant is a former president of the first defendant and a member of its executive council. Background 5 The following matters were undisputed and, in any event, were established on the evidence. 6 On 29 June 1990 the first defendant was incorporated under the Associations Incorporation Act 1984. During 1994 and 1995 it collected money from its supporters for the purchase of the land upon which it intended to establish a mosque. 7 On 19 May 1995 the plaintiff was incorporated at the behest of the first defendant for the purpose of acquiring and holding the land. Its founding directors and shareholders as trustees for the first defendant were Mr Rashid Raashed and Mr Abdul Mumem Bhuiyan. 8 On 22 May 1995 declarations of trust were made by Mr Raashed and Mr Bhuiyan in which each stated that his share was held as trustee for the first defendant, and he would act only upon its direction if called upon at any time to transfer and sign documentation concerning the land. 9 On 23 May 1995 contracts were exchanged for the purchase of the land for the price of $270,000. Settlement took place on 4 July 1995. The transaction was funded from monies raised by the first defendant and held in a bank account under the name of "Bangladesh Islamic Centre Mosque Project". 10 The annual return of the plaintiff filed 30 January 1996 records the first defendant as its only shareholder with 200 ordinary shares, and as its ultimate holding company. 11 On 3 September 1996 Bankstown City Council consented to the first defendant's application to use the mosque as a place of public worship. Since then the first defendant has undertaken building improvements on the land, maintenance, and has paid all outgoings. 12 During 2000 some members of the first defendant raised the question of the transfer of the land from the plaintiff to the first defendant. At its annual general meeting on 13 August 2000 Mr Raashed and Mr Bhuiyan explained the situation, and on 26 August 2000 a sub-committee was appointed to investigate and report on the feasibility of transfer. 13 The topic was considered at the executive council meeting on 17 February 2002 when the second defendant, then president of the first defendant, was directed to request the plaintiff's directors to attend and bring documents relevant to the land. This he did by letter of 15 March 2002 to Messrs Raashed, Bhuiyan and Faruk Ahmed Choudhury which included the following: "You may be aware that the property at 11-13 Helen Street, Sefton where our mosque is situated had been purchased in the name of a company formed at the time, of which you signed on as directors. For some years in the past it has been a feeling of a great number of general membership that the company in the name of House of Peace be wound down and the property be re-registered or transferred to the parent organisation which is Bangladesh Islamic Centre of NSW Inc. But nothing tangible has been done thus far …"

He requested attendance at the meeting for 14 April 2002 and that papers including the "deed of the property" be brought.

At the meeting of the executive council on 14 April 2002 the plaintiff's directors did not attend, and one Mr Abedullah Haroone was authorised to take appropriate steps in consultation with the second defendant to transfer the "Sefton mosque ownership" from the plaintiff to the first defendant. 14 By letters of 30 May 2002 the second defendant, on behalf of the first defendant, authorised Mr Haroone to attend to the transfer of the land to the second defendant. During the annual general meeting of the first defendant held on 11 August 2002, chaired by the second defendant, concern was expressed that the land had not been transferred to it. 15 By letter of 24 September 2002 to Mr Bhuiyan Australian Securities and Investments Commission (ASIC) advised that the first plaintiff was liable to deregistration under s 601AB Corporations Act unless it met requirements for the lodgement of documents and its annual return. The letter was referred by Mr Bhuiyan to the second defendant for discussion with the executive council. 16 By letters of 16 December 2002 to Mr Raashed and Mr Bhuiyan ASIC advised that the plaintiff was deregistered on 15 December 2002. 17 At its meeting on 19 December 2002 the executive council of the first defendant directed the second defendant to take "… necessary steps to transfer the Sefton mosque property from House of Peace to BIC". 18 On 5 January 2003 the executive council held a meeting attended by the second defendant as president and Mr Raashed as a prominent community member. The minutes record that Mr Raashed presented a concept plan for the grant mosque and that the second defendant was directed to pursue the matter of transfer with directors of the plaintiff. On 3 February 2003 the second defendant collected the title documents to the land from Mr Raashed. Later he obtained from the Land and Property Information Office, Sydney, a form of transfer and notice of sale. 19 By letter of 13 February 2003 to the second defendant ASIC responded to his application for reinstatement of the plaintiff and provided information as to the necessary steps to be taken for that purpose. 20 On 8 April 2003 the second defendant signed the transfer form as transferor and Mr Fazlul Huq witnessed his signature. He lodged the document with the Office of State Revenue for assessment. It was stamped on 23 April 2003 with no duty payable. Shortly thereafter the second defendant lodged the document for registration at the Land and Property Information Office in circumstances described in his evidence. 21 On 12 May 2003 the transfer was registered as dealing no. 9591497K. 22 By letter of 14 May 2003 to ASIC the second defendant advised that the first defendant would not proceed with the application for the reinstatement of the plaintiff. 23 At its meeting on 18 May 2003 the second defendant informed the executive council that the land had been transferred to the first defendant. At its meeting on 22 June 2003 the executive council resolved that the title documents be held by the president or general secretary. 24 By letter of 19 May 2003 to Messrs Raashed, Bhuiyan and Choudhury, the second defendant advised that the reinstatement application would not proceed. It included: "… the mosque properties registered under the title of House of Peace P/L has [sic] been successfully transferred to the title of parent organisation of Bangladesh Islamic Centre of NSW Inc. Therefore, it is not necessary to continue with the company any longer." 25 By letter of 29 June 2003 to Mr Raashed the second defendant advised that new title deeds had been issued in the name of the first defendant and would not be returned to him. 26 On 28 March 2006 the plaintiff was reinstated. 27 On 30 March 2006 the plaintiff lodged a caveat over the land. By letter of 12 April 2006 to the first and third defendants the plaintiff's solicitors claimed that the land had been transferred fraudulently and without the plaintiff's knowledge and consent, that the transfer was void, and that the land should be retransferred to the plaintiff. 28 On 10 May 2006 the summons in these proceedings was filed. Was there fraud under s 42? 29 On this ground, in short, the plaintiff contends there was fraud in obtaining registration of the transfer and, accordingly, the register should be rectified. The first and second defendants deny fraud, and contend that registration is conclusive and conferred good title on the first defendant. It was common ground that the second defendant had never been an officer, director or otherwise, of the plaintiff. 30 Relevantly, s 42 of the Act provides: "42 Estate of registered proprietor paramount

(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: " (the exceptions are irrelevant)." 31 In Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376, pp 385-386 Barwick CJ explained: "The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void …" 32 In Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722, p 736 Gleeson CJ observed that it is now settled, subject to certain qualifications, the indefeasibility of title conferred (by s 41, s 42, s 43 of the Act), even in the case of registration of a void instrument, takes effect immediately upon registration. 33 As to the issue of fraud under the statute, in Assets Company Ltd v Mere Roihi [1905] AC 176, p 210 the Judicial Committee said that "A person who presents for registration a document which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he honestly believes it to be a genuine document which can be properly acted upon". 34 In Davis v Williams [2003] NSWCA 371 the Court of Appeal reviewed the authorities which consider the principles by which the existence of fraud within s 42 of the Act is to be determined. Young CJ in Eq. (as he then was) held: "110 Even though anyone who attests a dealing under the Torrens system falsely is in one sense committing fraud against the Registrar General, the cases show that that is not enough. It will be enough if an officer of the interested party which has become registered knowingly or recklessly certifies so that the registration is effected ( De Jager, Hedley, Sansom ). It will not be enough if some officer of the person who obtains registration without any moral turpitude or intention of depriving a person of an interest in land makes a false attestation ( Russo ). In all cases it must be shown that there was fraud by the person becoming registered or its agent in obtaining registration so that an interest which would otherwise take priority over that interest has been defeated. "

He also said: "140 Moral turpitude and dishonesty are required to constitute fraud, and this involves mens rea. Even stupidity is not enough … It would seem that the clerk took a shortcut which she may have conceived to be in some way permissible when it was plainly not, not with a view to personal profit or anything else … 142 A charge of fraud is a serious one and needs to be properly established. It does not seem to me that in the absence of Ms Moore or any admissions by her of fraudulent intent that one can infer anything more than ignorance, certainly one should not infer any moral turpitude. With great respect, the trial judge seemed to consider that once she had altered the document knowing that it was going to be lodged with the Registrar General, that that was enough. With great respect I do not consider that that is so …" 35 Hodgson JA (par 24) stated the importance of giving careful consideration as to whether all elements of fraud had been made out, which involves addressing the question: "… whether the registration clerk really had it in mind to mislead the Registrar-General in a material respect and thereby influence the Registrar-General to do something materially different from what otherwise would have been done; or whether her behaviour had the element of dishonesty or moral turpitude sometimes said to be necessary for fraud".

He continued: "26 There may also be a further question, namely whether her conduct had that element of dishonesty or moral turpitude that is said to be necessary: Butler v. Fairclough [1917] HCA 9; (1917) 23 CLR 78 at 91, 97; Wicks v. Bennett [1921] HCA 57; (1921) 30 CLR 80 at 91; Stuart v. Kingston [1923] HCA 17; (1923) 32 CLR 309 at 329; Latec Investments Ltd. v. Hotel Terrigal Pty. Ltd. [1965] HCA 17; (1965) 113 CLR 265 at 273-4; Bahr v. Nicolay (No.2) [1988] HCA 16; (1988) 164 CLR 604 at 614. For my part, however, I do not see that as being, in this case, a requirement distinct from those I have already raised. If the registration clerk made a representation to the Registrar-General, knowing it to be false in a material respect, and intending that the Registrar-General be induced by the representation to act in a way materially different from what otherwise would have been done, then I think that would be sufficient dishonesty or moral turpitude, irrespective of whether she had any intention that anyone be disadvantaged by this. If a lie is material in respects such as these and understood to be so, I do not think that lack of intent to harm can justify treating it as a "white lie" and as excluding dishonesty or moral turpitude." 36 The following is a summary of so much of the evidence of the witnesses which I found to be relevant. 37 Mr Raashed said that he had been a director of the plaintiff since its incorporation in 1995. He said that no authority was given to the first or second defendant, or to anybody else, to sign the transfer or any document referable to the transfer of land from the plaintiff. He first learnt of the transfer to the first defendant after searching the title in about February 2006. 38 In his affidavit of 9 March 2009, and in oral evidence, he denied receiving the second defendant's letter of 15 March 2002 which referred to a concern to have the land transferred to the first defendant. 39 With reference to the occasion when the second defendant came to his house and collected the title documents, Mr Raashed said that he was unable to recall the conversation between them except that the second defendant said he wanted to show them to the executive committee and would return them. He denied that the second defendant wanted the deeds so that the land could be transferred to the first defendant. He said that he was content for the second defendant to take them for safekeeping. He denied receiving the letter of 19 May 2003 from the first and second defendant which referred to the transfer of the land to the first defendant, and the letter of 29 June 2003 in which he was advised that title deeds to the land had been issued in the name of the first defendant, and would not be returned to him. He also said that he could not remember receiving a letter from ASIC on or about 24 September 2002 similar to that sent to Mr Bhuiyan, advising that the plaintiff was liable to deregistration, or the letter of 16 December 2002 from ASIC to him advising that the plaintiff was deregistered on 15 December 2002. 40 With reference to the plaintiff's annual return of 31 January 2001, he agreed he signed it as a director, and that it recorded the holding of 200 shares by the first defendant. He continued (T p 97): "A. This is the same thing we are saying. Once we sign the document to form the House of Peace, we would never want the property for ourselves. We never think of it. This property was for the donors, the Mosque … WITNESS: … We accepted this is a document signed, that we hold the property as a trustee for BIC. The same thing been reflected here. It is not disputed, we always said that. HIS HONOUR Q. Well, what is the problem about the transfer to BIC? A. Obviously, that the House of Peace was an entity created, that I, as executive, had at the time with other directors. We believed that is only way for us to be fair to all donors, so we made an arrangement for it to be held as a trustee for BIC and BIC had a constitution at the time which told the people specifically, this is what the constitution says. It is for all of you. That is the purpose. We held it that purpose …"

And also (T p 105): "Q. So that, at the time of the transfer in April 2003, the trust on which you say that you understood you held the property, or House of Peace held the property for BIC-- A. House of Peace, yes. Q. --was the same as when it was when House of Peace purchased the property?

A. That's correct. Yes, I maintain that belief." 41 The evidence of Mr Haroone was that on 14 April 2002 he was authorised by the executive committee to arrange for the transfer of the land to the first defendant, and was provided with a letter of authority on 30 May 2002 to present to Mr Raashed. However, before he could act, he said that the second defendant asked him not to proceed as he himself would collect the title documents from Mr Raashed. He said he has not spoken to Mr Raashed about the transfer of the land. 42 Mr Bhuiyan's evidence was in his affidavit of 25 June 2008. He was not required for cross-examination. He said he was a director of the plaintiff, and agreed, without elaboration, with the contents of Mr Raashed's affidavits. 43 Mr Choudhury swore affidavits on 26 August 2006 and 25 June 2008. The first was not read. Although it may be doubtful, I have treated the later affidavit as having been read. He was not required for cross-examination. He said he was a director/secretary of the plaintiff from 1995 until February 2006, and agreed, without elaboration, with the contents of Mr Raashed's affidavits. 44 The second defendant's evidence was that he has held office on the executive committee of the first defendant for many years, including as president in 1996 - 1997, and 2001 - 2003. He said that the first defendant arranged for the incorporation of the plaintiff for the purpose of acquiring and holding the land at Sefton on which a mosque would be established. Mr Raashed and Mr Bhuiyan were appointed to represent the first defendant as founding directors and shareholders of the plaintiff. He said that the first defendant raised money from the general Muslim community for the purchase of the land and the construction of the mosque. 45 The second defendant explained that the shareholding of the plaintiff was changed so that the first defendant became the only shareholder with 200 shares, and the ultimate holding company. As the first defendant had paid all money required for the purchase of the land, outgoings, and the establishment and maintenance of the mosque, it was his belief that it was the true owner of the land, a belief shared by the first defendant's members. He referred to meetings of the executive committee during 2000 and 2001 at which concern was expressed to the effect that the first defendant should become owner of the land. He said that, following the decision of the executive committee on 17 February 2002 that the land be transferred to the first defendant, it requested him to arrange for that to happen, and he believed he was under a duty, as president, to do so. Accordingly, on 15 March 2002 he wrote to Mr Raashed, Mr Bhuiyan and Mr Choudhury about transfer of ownership, and requested their attendance at the meeting on 14 April 2002 with the title documents. He said he delivered the letter to Mr Raashed at his house, and posted copies to both Mr Bhuiyan and Mr Choudhury. 46 The second defendant said that Mr Bhuiyan passed on to him the letter of 24 September 2002 from ASIC advising of the plaintiff's liability to deregistration. Following ASIC's advice on 16 December 2002 to its directors that the plaintiff was deregistered on 15 December 2002, a meeting of the executive committee on 19 December 2002 directed him to take the necessary steps to transfer the land to the first defendant. In early January 2003 he had a telephone conversation with an ASIC officer who advised that deregistration would complicate dealings with the land and could jeopardise the plaintiff's ownership of it. He also referred to correspondence in January and February 2003 with ASIC concerning the reinstatement of the plaintiff which, later, he did not pursue. 47 The second defendant said that he visited Mr Raashed's house on 3 February 2003 and collected the title documents from him. The conversation included Mr Raashed's request that the documents be returned for safekeeping after the transfer had taken place. 48 His evidence of the circumstances in which the transfer form was completed and lodged for registration went unchallenged and uncontradicted. His affidavit of 20 August 2008 included the following: "14 Around two weeks later I filled in the transfer form I had been given. I also filled in the Notice of Sale. I then signed the transfer document in the spot for the transferor in the presence of "Mr Hug". I did not fill in any price or consideration on the transfer. I then attended the Office of State Revenue in Parramatta. I recall the representative of that office suggested I fill in the price at the amount for which the land would be transferred. I explained the relationship between the Plaintiff and the BIC, as I understood it. The representative suggested I fill in the consideration in the manner shown on the document which I did. This amount represented the original purchase price of the land. I also filled in the date of the document. Exhibited … is a copy of the transfer I submitted to the Office of State Revenue and which was stamped and eventually returned to me. 15. This transfer was kept by that office for assessment. I recall this office requested further information from the BIC on how the land was used. I provided the information required to the Office of State Revenue. The transfer was stamped on 23 April 2003 as "exempt". I then collected this transfer from the Parramatta Office of State Revenue around a week later. 16. I again attended the Land & Property Information Office in the city in early May 2003. I had the stamped transfer and title deeds to the mosque property to register the transfer of it. The assessor at the Land & Property Information Office who checked the transfer before accepting for lodgement raised the issue with me that it had not been signed by any party on behalf of the transferee. I explained the relationship between the transferor, the BIC, the Plaintiff and my position. I believed then as I do now that the BIC and the Plaintiff were under the same control. The lady assessor advised me that in the circumstances I should sign in the space provided for the "transferee" which I did. The writing at the foot of the document being "President A Choudhury" was written by the lady assessor. The document was accepted for registration. Exhibited … is a copy of the registered transfer. … 21. The acquisition of the mosque property was a project undertaken by the BIC. All funds required to acquire the mosque property were raised in the name of the BIC. Donations for this purpose were made to the BIC. I believed the Plaintiff was wholly owned by the BIC and was a subsidiary to BIC and subject to the ultimate control of the BIC. I also believe that in acting to transfer the mosque property into the name of the BIC I was acting with the knowledge and authority of the membership and the executive of the BIC and the knowledge of Mr Raashed, Mr Bhuigan [sic] and Mr Choudhury." 49 Under cross-examination the second defendant described what happened as follows (T p 43): "A. I took the document (the transfer form) Q. Yes. A. --to the Land Title Office, and Land Title Office - that's what I've said into my affidavit as well - has suggested that somebody has to sign the bottom part as well. Q. Right? A. And then I explain to them the situation in relation to between the House of Peace and Bangladesh Islamic Centre, and it was a transfer from just simple, from one organ or the other of the same body, like House of Peace is a hundred per cent ownership of BIC. And with that explanation, the officer that is attending me, assessor in the Land Title Office, who is a lady who understood the matter, and then she suggested that maybe you can sign that bottom part as well, and I did that, and with her suggestion, and you can see, your Honour, that the bottom part "President" and "HOP" are not my handwriting, she is the one who - which is my name that she has written there. Q. You didn't write that? A. I didn't write. Q. She wrote that? A. She wrote that, yes. Q. Now coming back to topic, above your signature where the transferor appears? A. Mmm. Q. The block letters "House of Peace of Pty Limited President", can you recall now-- A. Yes, now I can recall that, that could be my - I have written as well, because when I explained this matter, she understood that, and then she also said that, that you can also write that the House of Peace is, you are the President as well. "

And (T p 45): "Q. The one for the president at the bottom, that was done by someone at the office? A. Correct. Q. You had already put Bangladesh Islamic Centre on the document. Why was there a need to House of Peace Pty Limited? A. That was a suggestion from the assessment officer. Q. Are you suggesting they suggested it? A. Yes. Q. And also suggested he should put House of Peace Pty Limited president? A. Yes." 50 The second defendant said (affidavit 20 August 2008 pars 19, 20) that he personally posted to Mr Raashed, Mr Bhuiyan and Mr Choudhury his letter of 19 May 2003 providing a copy of his correspondence with ASIC, and confirming finalisation of the transfer of the land, and to Mr Raashed on 29 June 2003 advising of the resolution of the executive committee to keep the title deeds. 51 I accept the evidence of the second defendant who impressed me as a witness of truth whose recollection of conversations and events was convincing. He was not shaken in cross-examination. The account he gave of events concerning the parties and the circumstances in which registration of the transfer was obtained was consistent with the documentary evidence, in particular the minutes of meetings of the executive committee, and the correspondence. I prefer his evidence to that of Mr Raashed where their accounts were in conflict. 52 On occasions when he perceived that candid answers might be harmful to the plaintiff's case Mr Raashed appeared to prevaricate or give evidence which was implausible. In particular, I do not accept his denials in cross-examination that he received the second defendant's letters of 19 May 2003 and 29 June 2003 given no reference was made to them in his affidavit of 9 March 2009 in which, inter alia, he specifically denied receipt of the letter of 15 March 2002. His explanation for failing to refer to them was unconvincing. I find that it is probable that he did receive them. As for the conversation on about 3 February 2003 when the second defendant collected the title documents, Mr Raashed accepted that he had no clear recollection of it. On the probabilities, I am satisfied that the second defendant told Mr Raashed that the purpose for taking the documents was to enable the transfer to proceed, and Mr Raashed handed them over with that understanding. 53 With regard to Mr Haroone's evidence, the second defendant denied that he asked Mr Haroone not to approach Mr Raashed about the land pursuant to the letter of authority of 30 May 2002. Having regard to the issues in the case, it is unnecessary to resolve this conflict. 54 The plaintiff submitted that the transfer was void as it was signed by the second defendant purportedly on behalf of the plaintiff, but without the authority of its directors to do so. As I understood it, it was put that the second defendant's conduct was fraudulent under s 42 of the Act in that he took the title documents from Mr Raashed with the intention of obtaining the transfer of the land to the first defendant without the plaintiff's authority. It was put that moral turpitude was established by the conduct of the second defendant by including in the transfer form the false and misleading representation that he was authorised as "President" to sign on behalf of the plaintiff as transferor in circumstances where he knew the plaintiff was deregistered and did not exist, and he had no authority. It was also put that failure to note on the document that the plaintiff was deregistered would mislead the Registrar-General. 55 In short, the submission was as follows: "HIS HONOUR: Well, coming back to where we were a little while ago, do you say the conduct which was fraudulent was representing that he was President of House of Peace Pty Ltd as written there; is that it? … KUMAR: Yes, I do say that, your Honour. You clearly know that he is not the President. HIS HONOUR: Is there any other factor of fraud, conduct which you would say that is fraudulent? KUMAR: Well, he is aware that House of Peace Pty Ltd doesn't exist because he says he got this letter and the way then the transfer is presented, when he knows that House of Peace Pty Ltd does not exist, goes and tells some Registry staff that he wants to register and how it is done. In my submission, is conduct that attracts moral turpitude." 56 For the defendants it was submitted that neither acted fraudulently within s 42 of the Act, or at all. It was put that the second defendant was ignorant of the procedure for registration. He acted in circumstances where the plaintiff held the land on trust for the first defendant, had been deregistered, and its directors had effectively left him to attend to its affairs. Furthermore, as the first defendant had the beneficial interest in the land, it was put that there was no dishonesty or moral turpitude involved in the second defendant seeking to obtain transfer of it in accordance with the wishes of its members and the directions of the executive committee. It was also put that the Registrar-General would not be misled in circumstances where, according to the unchallenged evidence, the second defendant explained to its officer that the plaintiff was deregistered and the nature of the relationship between the plaintiff and the first defendant, and sought and followed her guidance in completing the transfer form for lodgement for registration. It was put that the second defendant's conduct involved no impropriety or conscious wrongdoing, and that his intention was honest throughout. The documentary evidence was relied upon to support the proposition that there were reasonable grounds for the second defendant's belief that what he did to obtain registration of the transfer was appropriate in the circumstances. 57 The essential question is whether the conduct of the second defendant who acted throughout as agent for the first defendant could be classed as statutory fraud under s 42 of the Act. Determination requires consideration of the circumstances in which the registration of the transfer was obtained and, in particular whether the second defendant's representation on the transfer that he was acting on behalf of the plaintiff as transferor as its president constituted fraud. 58 Evaluation of the defendants' conduct in relation to the transfer must take into account that prior to the plaintiff becoming the registered proprietor its directors, Mr Raashed and Mr Bhuiyan, in their declarations of trust of 22 May 1995 stated they would act only upon the direction of the first defendant if called upon at any time to transfer the land. It is relevant that the first defendant was the only shareholder in the plaintiff, and was its ultimate holding company, as recorded in the plaintiff's annual returns filed 30 January 1996 and thereafter. It is also relevant that on about 16 December 2002 the defendants were informed by the plaintiff that the plaintiff had been deregistered on 15 December 2002. The effect of deregistration was that the plaintiff ceased to exist and its property vested in ASIC (s 601AD(1), (2) Corporations Act). It was not clear from the evidence the extent to which the status of the plaintiff as a deregistered company was understood by the defendants or Mr Raashed, or influenced the second defendant's conduct in obtaining the transfer. 59 The evidence shows that at, and since, the annual general meeting of the first defendant on 13 August 2000 the question of transfer of the land from the plaintiff to the first defendant was a matter of concern in the community associated with the mosque. At this meeting Mr Raashed and Mr Bhuiyan explained that although the land was purchased in the plaintiff's name it was effectively owned by the first defendant. Later, a sub-committee of the first defendant was appointed to investigate and report on the feasibility of transfer. 60 On 17 February 2002 the executive committee directed the second defendant, then its president, to request the plaintiff's directors to attend and bring documents relevant to the land. I find, as he said, that it was the second defendant's belief that he was duty bound to arrange for the transfer and, accordingly, he wrote the letters of 15 March 2002 to each of the plaintiff's directors. He also said, and I find, that the first defendant's members believed they were the rightful owners of the land. 61 I find that the letter of 15 March 2002 demonstrates that the defendants informed the plaintiff's directors that steps were to be taken to have the land transferred to the first defendant, and had requested their cooperation and assistance. Despite his denial, I have found that the letter was delivered to Mr Raashed by the second defendant. The second defendant also mailed the letter to each of Mr Bhuiyan and Mr Choudhury. Neither disputed receiving the letter and, absent evidence to the contrary, I find that they did. 62 After being informed of the plaintiff's deregistration, on 19 December 2002 the executive committee directed the second defendant to proceed. A similar direction was given at its meeting on 5 January 2003, an occasion attended by Mr Raashed. The plaintiff's title documents were handed to the second defendant by Mr Raashed on 3 February 2003 on the understanding, as I have found, that they were required for the transfer of the land to the first defendant. 63 As for the circumstances in which the second defendant completed the transfer form and lodged it for registration I find they were as he described them in his evidence, the details of which are recorded above (pars 46, 47). It is unnecessary to repeat them. The evidence supports the conclusion that after the second defendant had explained the relationship between the plaintiff and the first defendant to an assessor in the Land and Property Information Office, the assessor advised on, and assisted with, completion of the spaces provided for the signatures on the transfer form. In particular she made the suggestion that the transferor be described as "House of Peace of [sic] Pty Ltd" followed by the title "President" where those words appear above his signature. 64 On 12 May 2003 the transfer was registered as dealing no. 9591497K. At its meeting on 18 May 2003 the executive committee was informed by the second defendant of the transfer. 65 By letter of 19 May 2003 the second defendant informed Mr Raashed, Mr Bhuiyan and Mr Choudhury of the transfer to the first defendant. He also informed them that reinstatement of the plaintiff would not proceed, and thanked them for acting as directors. By letter of 29 June 2003 to Mr Raashed, the second defendant confirmed that transfer had taken place, advised that the title documents would be held by the first defendant, and thanked him for safely keeping the title documents in the past. The absence of evidence of any response to these letters supports the inference, which I make, that Mr Raashed, Mr Bhuiyan and Mr Choudhury were at all relevant times aware of, and acquiesced in the defendants' intention to arrange for the transfer of the land from the plaintiff. Such a conclusion is consistent with the acknowledgement that the plaintiff held the land on trust for the first defendant made by Mr Raashed and Mr Bhuiyan in their declarations of trust of 22 May 1995, and Mr Raashed's evidence in these proceedings earlier referred to (par 38; T p 97, 105). Furthermore, it is consistent with the conduct of Mr Bhuiyan and Mr Raashed in handing over to the second defendant the letters they received from ASIC on 16 December 2002 advising of deregistration of the plaintiff, which indicates that they, as the plaintiff's erstwhile directors, had entrusted the affairs of the plaintiff to him. Conclusion 66 The authorities show that the essential components of fraud are moral turpitude and dishonesty, being conduct involving mens rea and fraudulent intent (Davis pars 24, 26, 110, 140, 142; Assets Company Ltd p 210). 67 Determination of the issue of fraud as alleged by the plaintiff required scrutiny of the evidence of the conduct of the person or persons who obtained the challenged transfer namely, in this case, the second defendant. In my opinion the evidence overall established that he honestly believed that what he did on behalf of the first defendant was properly done, and that the form of transfer as completed by him in the circumstances was a genuine document which could be properly acted upon. The evidence also established that the second defendant's dealings with the plaintiff's representatives, principally Mr Raashed, and with the Registrar-General, were free of any element of fraud. The plaintiff's submissions to the contrary are rejected. 68 Accordingly, as there was no fraud by the defendants, the plaintiff's first ground for relief must be dismissed. Is s 42 inconsistent under s 109 Commonwealth Constitution? 69 The plaintiff was deregistered on 15 December 2002 and reinstated on 28 March 2006. The challenged transfer was registered on 12 May 2003 at a time when ownership of the property was vested in ASIC by s 601AD(2) Corporations Act. The plaintiff contended that paramountcy of title afforded to a registered proprietor under s 42 of the Act is inconsistent with what was said to be the statutory title of ASIC to property under the Corporations Act, and therefore s 42 attracted the application of s 109 Commonwealth Constitution with the result that s 42 is invalid to the extent of the inconsistency. 70 The required notices under s 78B Judiciary Act 1903 (Cth) were given. The Attorneys-General advised they did not wish to intervene. The legislation 71 Section 109 Commonwealth Constitution provides: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." 72 Relevantly, the applicable provisions of the Corporations Act were:

Section 9 "property" means: " property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action." " 601AD Effect of deregistration Company ceases to exist (1) A company ceases to exist on deregistration. Note: Despite the deregistration, officers of the company may still be liable for things done before the company was deregistered.

Company's property vests in ASIC (2) On deregistration, all the company's property vests in ASIC. If company property is vested in a liquidator immediately before deregistration, that property vests in ASIC. This subsection extends to property situated outside this jurisdiction. (3) Under subsection (2), ASIC takes only the same property rights that the company itself held. If the company held particular property subject to a security or other interest or claim, ASIC takes the property subject to that interest or claim. Note: See also subsection 601AE(3) - which deals with liabilities that a law imposes on the property (particularly liabilities such as rates, taxes and other charges). (4) ASIC has all the powers of an owner over property vested in it under subsection (2). Note: Section 601AF confers additional powers on ASIC to fulfil outstanding obligations of the deregistered company.

" 601AE What ASIC does with the property …

(2) If the company did not hold the property on trust, ASIC may: (a) dispose of or deal with the property as it sees fit; and … Obligations attaching to property (3) The property remains subject to all liabilities imposed on the property under a law and does not have the benefit of any exemption that the property might otherwise have because it is vested in ASIC. These liabilities include a liability that: (a) is a charge or claim on the property; and (b) arises under a law that imposes rates, taxes or other charges." " 601AH Reinstatement

(1) Reinstatement by ASIC . ASIC may reinstate the registration of a company if ASIC is satisfied that the company should not have been deregistered. … (5) Effect of reinstatement

If a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before deregistration becomes a director again as from the time when ASIC or the Court reinstates the company. Any property of the company that is still vested in ASIC revests in the company. If the company held particular property subject to a security or other interest or claim, the company takes the property subject to that interest or claim." 73 Relevantly, the Real Property Act 1900 (the Act) provides: "41 Dealings not effectual until recorded in Register (1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature." "42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: " (the exceptions are irrelevant)." "43 Purchaser from registered proprietor not to be affected by notice (1) Except in the case of fraud no person contracting or dealing with or taking or proposing to take a transfer from the registered proprietor of any registered estate or interest shall be required or in any manner concerned to inquire or ascertain the circumstances in or the consideration for which such registered owner or any previous registered owner of the estate or interest in question is or was registered, or to see to the application of the purchase money or any part thereof, or shall be affected by notice direct or constructive of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud." Consideration 74 The plaintiff's submissions were along the following lines. 75 Upon the deregistration of the plaintiff the property vested in ASIC under s 601AD(2) Corporations Act and, accordingly, ASIC's title to it existed independently of the registration of a transfer. Under s 601AH(5), upon reinstatement, any property still vested in ASIC revests in the company. The effect of these provisions precludes the operation of s 42, during the period of deregistration, to provide an indefeasible title to a third party upon registration of a transfer of the property. Counsel for the plaintiff stated the submissions thus (T pp 174, 175): "LEVET: My starting point is that there is a direct inconsistency, in that the legislation provides for a vesting of the property in ASIC and it provides for the manner in which the property, ultimately, is to be divested. It follows that, whilst a company is deregistered, unless and until ASIC has divested itself of the property in one of the ways that is provided, the property is and remains vested in ASIC. It is that, in my submission, which gives rise to the direct inconsistency, because a purported registration of a title, contrary to that of ASIC, would have the effect, were it effective, to divest ASIC of that property, which the legislation provides be vested in it. That is the nub of the direct inconsistency. HIS HONOUR: Is that another way of saying the issue is whether the property vested in ASIC is subject to the application and operation of the Real Property Act? LEVET: Yes, or, certainly, that portion of the Real Property Act. I would not go as far as to say the entirety of the Real Property Act, but that portion of it which provides for transfer of title. HIS HONOUR: Provides for indefeasibility of title. LEVET: Indeed, yes, touche."

and (T p 194, l 20-44) "LEVET: We say that … as a result of the legislation there has been a vesting of the property in ASIC and that title that occurs is a statutory title although they do not take more than the deregistered company. So in practical terms, there is a statutory title. We say it comes about by virtue of the operation of the Act. We say that that statutory title continues to exist until such time as the Act provides that it ceases to exist, that is upon it being dealt with as in the manner of an owner which has not happened here or upon reregistration of the company which has happened here. We say that the statute giving rise to the statutory title provides for the mechanism whereby that statutory title ceases to exist. We say that's what happened here. The statutory title has ceased to exist at point of deregistration. But prior to that there has been the purported act of the first and second defendants in registering an instrument which we say is a void instrument and seeking to obtain an indefeasibility title under state legislation at a time when we say that a statutory title existed in ASIC independently of the state legislation. It was temporal in nature. It had a quantifiable beginning and a quantifiable end but nonetheless during that period between those two points in time we say a statutory title existed that can not during that period be derogated from and we say that the act of causing a contrary title to be registered is of no effect because it seeks to take from ASIC for statutory title which is otherwise provided by the Act. That is the case in a nutshell." 76 In short, it was argued that divestment of ASIC's title to, and ownership of, the property under the statute can only be achieved either by ASIC transferring it to another in the ordinary way or, if the company is reinstated, by its revestment in the company by force of s 601AH(5). Thus it was not intended that ASIC would be divested otherwise. 77 It follows, so it was put, that it would be inconsistent with the applicable Corporations Act provisions if s 42 was permitted to operate so that ASIC was divested of title and ownership of property upon the registration of a transfer to another party. Accordingly, upon the application of s 109 of the Constitution, s 42 has no valid operation in relation to the transfer of property vested in ASIC. In the circumstances of this case, as the first defendant had not acquired the property from ASIC in the exercise of ASIC's power as owner in the usual way, s 42 was not effective to establish a valid transfer of title to the first defendant. By reason of the invalidity of s 42 registration of the transfer was ineffective to provide the first defendant with an indefeasible title to the property. Consideration 78 Section 109 is concerned with inconsistency of laws. The test of inconsistency was stated by Dixon J in Victoria v The Commonwealth [1937] HCA 82; (1937) 58 CLR 618, p 630 as follows: "When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent." 79 In Re Residential Tenancies Tribunal (NSW); ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410, pp 432-433 it was held that no inconsistency arises where it is obvious that the Commonwealth law was intended to operate within a legal framework provided by the common law and State law. In Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 197 CLR 61 it was said that direct inconsistency arises when one law requires what the other forbids (par 27). The High Court continued: "… it is clearly established that there may be inconsistency within the meaning of s 109 although it is possible to obey both the Commonwealth law and the State law . Further, there will be what Barwick CJ identified as "direct collision" where the State law, if allowed to operate, would impose an obligation greater than that for which the federal law has provided . Thus, in Australian Mutual Provident Society v Goulden , in a joint judgment, the Court determined the issue before it by stating that the provision of the State law in question "would qualify, impair and, in a significant respect, negate the essential legislative scheme of the Life Insurance Act 1995 (Cth)". A different result obtains if the Commonwealth law operates within the setting of other laws so that it is supplementary to or cumulative upon the State law in question." 80 Recently, in Attorney-General (Vic) v Andrews [2007] HCA 9; (2007) 230 CLR 369 the plurality observed: "54 Of course, section 109 does not operate where, on its proper construction, the federal statute assumes the operation of the common law as modified by State statute law; in that situation, the federal law operates within the setting of other laws so that it is supplementary to, or cumulative upon, the State law in question." 81 The authorities establish that s 109 will operate upon a direct inconsistency or collision of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic making it impossible for both laws to be obeyed. In the present proceedings the question is whether s 42 of the Act alters, impairs, or detracts from the operation of the relevant provisions of the Corporations Act i.e. whether there is inconsistency between those laws. If s 42 is found to be invalid by reason of inconsistency, s 109 will operate so that s 42 is invalid or inoperative to the extent of the inconsistency (University of Wollongong v Metwally [1984] HCA 74; (1984) 158 CLR 447, p 455; Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373, p 451). 82 Determination of the question of inconsistency requires a comparative analysis of the relevant provisions of the Corporations Act and the Act. The task in each case is not difficult. Their language is ordinary and unambiguous. 83 Under s 601AD(2), on deregistration all the company's property vests in ASIC. It includes any legal or equitable estate or interest in real or personal property of any description (s 9). ASIC takes only the same property rights that the company itself held (s 601AD(3)), and has all the powers of an owner over property vested in it under subs (2) (s 601AD(4)). 84 As a consequence of the company's deregistration the devolution of ownership of its property is effected by vesting by operation of law i.e. by force of s 601AD(2). The statutory vesting is, in my opinion, equivalent to the transmission of ownership from the company to ASIC in the sense defined in Wolfson v Registrar-General (NSW) [1934] HCA 29; (1934) 51 CLR 300 by Starke J (p 311-312) as follows: "Transmission in its strictest sense is the devolution of property upon some person by operation of law, unconnected with any direct act of the party to whom the property is transmitted - as, by death, bankruptcy, insolvency or marriage …" 85 To so describe the juridical nature and consequence of vesting under the Corporations Act is consistent with the conclusion of Santow J in Andco Nominees Pty Ltd v Lestato Pty Ltd (1995) 17 ACSR 239, pp 256-258 that the effect of a vesting order made under s 71(1) Trustee Act 1925 is that it operates as a transmission by which such ownership as the nature of the property admits is vested in the person named in the order. 86 With devolution of ownership ASIC takes only the same property rights as the company held, with all the powers of an owner over the property (s 601AD(3), s 601AD(4)). No different form of ownership or title is created, and the rights attaching to ownership and title remain the same. In my opinion, upon their proper construction, the provisions operate to change ownership of property from the company to ASIC, with the intention that ASIC is to take just the same kind of property as the company had at the time of deregistration, with the same rights and powers of ownership as the company had before deregistration. It would be incorrect to say that ASIC obtained a statutory title in the vested property which differed in any way from the nature of the title held by the company prior to deregistration. 87 Section 601AD deals with the effect of deregistration, and s 601AE with what ASIC does with the property. Although s 601AE(2)(a) authorises ASIC to dispose of, or deal with, non-trust property as it sees fit, the Corporations Act makes no provision for the exercise of the powers of an owner which ASIC holds under s 601AD(4). As no comprehensive and exclusive code of the means by which these powers are to be exercised is to be found in the Corporations Act, in my opinion the enactment of these provisions assumed an existing legal system within which and by means of which those powers might be exercised (Re Residential Tenancies Tribunal (NSW) p 432). It follows, in my opinion, that these provisions "… were intended to operate within the setting of other laws so that it is supplementary to, or cumulative upon, the State law in question" (Attorney-General (Vic) par 54; Re Residential Tenancies Tribunal (NSW) p 433; Telstra Corporation Ltd par 27). 88 Whilst the property is vested in ASIC it may be disposed of or dealt with as ASIC sees fit, if the company did not hold it on trust (s 601AE(2)), and it remains subject to all liabilities imposed under a law (s 601AE(3)). If reinstated, the company is taken to have continued in existence as if it had not been deregistered, and any property of the company that is still vested in ASIC revests in the company (s 601AH(5)). The combined effect of s 601AD(4), s 601AE(2), and s 601AH(5) empowers ASIC to dispose of, or deal with, the property to the extent the nature of the property admits prior to any reinstatement of the company. 89 Property which vests in ASIC includes land under the provisions of the Act. Where the company was the registered proprietor of such land ASIC's powers and rights are the same as those of the company when registered proprietor. Necessarily, the incidents of ownership and title must be ascertained by reference to the provisions of the Act. 90 Relevantly, under s 41, s 42, and s 43, registration confers upon the proprietor an indefeasible title even in the case of a void instrument (Story p 736). In Brunker v Perpetual Trustee Co Ltd [1937] HCA 76; (1937) 59 CLR 140, p 599 Dixon J explained the significance of registration in these terms: "… under the system of the Real Property Act , a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself." 91 The certificate of title is definitive of the title of the registered proprietor, and there is immediate indefeasibility of title by the registration of the proprietor named in the register (Breskvar p 385). 92 Section 46C(1)(a) provides the mechanism whereby ASIC may become registered as the proprietor of the land under the Act which vested pursuant to s 601AD(2). 93 The estate or interest in the land will pass upon the registration of a dealing in the manner provided by s 41, which may not always be the result of a consensual transaction by which the registered proprietor transferred his interest to another. Under the system prescribed by the Act, absent fraud, the registered proprietor for the time being is at risk of another person becoming registered as proprietor upon the registration of a dealing or instrument under s 41, whereby that person acquires an indefeasible title to the land. Cessation of proprietorship in such circumstances with the consequential loss of the right to an indefeasible title is simply an incident of ownership of land under the Act. Conclusion 94 In my opinion analysis of the relevant laws demonstrates that, according to the established tests, there is no inconsistency as claimed by the plaintiff. There is no direct collision between them. The operation of s 41 and/or s 42 of the Act could not alter, impair, or detract from the operation of s 601AD, s 601AE, and s 601AH Corporations Act. 95 Furthermore, no inconsistency arises because in my opinion, as earlier stated (par 87), the terms of the Corporations Act provisions evidence the intention that they are to operate within the setting of other laws with which ASIC as a property owner will be required to comply. In other words, these provisions are intended to be supplementary to, or cumulative upon State law (Attorney General (Vic) par 54; Telstra Corporation par 27; Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42; (1986) 161 CLR 47, p 58). With respect to land under the Act my conclusion is that, far from being inconsistent, the effective operation of the Corporations Act provisions depends upon the existence of the scheme established by it. 96 Accordingly, the plaintiff's challenge to the validity of s 42 under s 109 of the Constitution must fail. Contrary to the plaintiff's submissions, it is incorrect to say that whilst ASIC held the property its title and rights of ownership differed from those of the company prior to deregistration. The operation of s 42 in establishing the indefeasible title of the registered proprietor for the time being does not interfere with the Corporations Act provisions by which the property is vested in, and held by, ASIC. The plaintiff's second ground for relief is dismissed. 97 Issues as to whether s 5G(11) Corporations Act was invalid under s 109 and/or would operate to avoid a direct inconsistency were the subject of submissions by the parties, but it is unnecessary to consider them. Indeed, it was common ground (T p 241) that if the plaintiff failed on its challenge to s 42 it was unnecessary to deal with these other questions. Disposition 98 The plaintiff has failed to establish that it is entitled to any of the relief claimed in its amended summons. The amended summons must be dismissed. Orders 99 It is ordered that:

(2) The plaintiff pay the defendants' costs of the proceedings. **********

02/09/2009 - correction to citation: 59 CLR 140 - Paragraph(s) 90

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Commonweath of Australia Constitution Act 1900(Cth)

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