In the matter of Islamic Association of Western Suburbs of Sydney Incorporated (ABN 46 035 793 915)

Catchwords: EQUITY – Equitable remedies – Injunctions – interlocutory injunction – where plaintiff seeks to restrain defendant association from holding election of members of Executive Council scheduled to occur at annual general meeting – where association disputes plaintiff’s membership – where plaintiff delayed in bringing proceedings – whether a serious question to be tried – whether balance of convenience favours an injunction being granted

Cases Cited: Countouris v Kallos [2008] NSWSC 840
Cox v Animal Welfare League of New South Wales [2017] NSWSC 374
May v Walker [2023] NSWSC 1628

Category: Principal judgment

Parties: Naeem Haq (Plaintiff)
Islamic Association Western Suburbs Sydney Incorporated (ABN 46 035 793 915)

Representation: Counsel:
R Raffell (Plaintiff)
A Cheshire SC / S Ahmed (Defendant)
Solicitors:
Burke & Mangan Lawyers (Plaintiff)
Abbas Jacobs Lawyers (Defendant)

File Number(s): 2025/448103

Publication restriction: Nil

EX TEMPORE JUDGMENT – REVISED 4 DECEMBER 2025

1. By an Originating Process filed in Court on 19 November 2025, the Plaintiff, Mr Naeem Haq, seeks, by way of interlocutory relief, an injunction restraining the Defendant, the Islamic Association of Western Suburbs of Sydney Incorporated (IAWSS), from holding the election of Executive Council Members that is scheduled to take place at the Annual General Meeting of the IAWSS on Sunday, 23 November 2025 (2025 AGM).

2. The IAWSS opposed the injunctive relief sought by the Plaintiff.

Factual Background

3. The relevant background to this application is as follows.

4. The IAWSS was established in around 1983 as an unincorporated association.

5. On 24 December 1991, the IAWSS was registered as an incorporated association. It is governed by a C****onstitution, the current version of which is dated 17 February 2015.

6. Mr Haq's parents were Foundation Members of the IAWSS. Foundation Members are defined in Clause 3 of the Constitution as “full members who participated in the first General Meeting of the Association”.

7. Mr Haq gives evidence that it was previously the practice of the IAWSS to allow children of Foundation Members, on turning 18 years of age, to become a member of the IAWSS.

8. Mr Haq was appointed a Foundation Member in around 1994.

9. It was common ground between the parties that Mr Haq remained a member of the IAWSS from around 1994 until 2010. Mr Haq deposes that he continued to be and presently remains a member of the IAWSS and seeks, by way of final relief, a declaration to that effect.

10. The IAWSS contends that Mr Haq was expelled and ceased to be a member in 2010.

11. Mr Haq acknowledged, in his affidavit dated 19 November 2025, that he ceased receiving communications from the IAWSS regarding his membership from around 2010, until he received a letter in December 2024, to which I will return below.

12. Further, while there was evidence that Mr Haq had attended various meetings of the IAWSS up to 2010, I was not taken to any evidence that he has attended any meeting of the IAWSS, or otherwise participated in any activities of the IAWSS, in the past 15 years.

13. Mr Haq deposes that he continued to pay membership fees up until 2021. This is disputed by the IAWSS.

14. Mr Haq acknowledges that, as at December 2024, he had not paid any membership fees to the IAWSS for a period of around three years. On 11 December 2024, he transferred a payment of $175.00 to the IAWSS's bank account, this being what he understood to be the amount in membership fees that was outstanding for the three years from 2021 onwards. He does not give any explanation as to why, at this time, he decided to pay the outstanding fees for an association with which he appears to have had no involvement with for an extended period of time.

15. On the following day, 12 December 2024, the IAWSS sent a letter to Mr Haq, which stated that Mr Haq was not a member of the IAWSS and, on that basis, enclosed a refund cheque of $175.00 (12 December Letter). Mr Haq did not take any action in response to this letter for a period of more than nine months.

16. On 24 September 2025, Mr Haq’s solicitor sent a letter to IAWSS, which was stated to be in response to the 12 December 2024 Letter (24 September Letter). In this letter, Mr Haq's solicitor:

17. asserted that Mr Haq remained a member of the IAWSS;

18. asserted that he had proffered payment of the full amount of his outstanding membership fees;

19. referred to the fact that the IAWSS had not yet called the 2025 AGM and election of office holders;

20. requested that he be given notice of the 2025 AGM;

21. asserted that he was entitled "to attend, nominate for the elections, and to vote at the 2025 AGM"; and

22. sought confirmation from the IAWSS that he remained both a full member and a Foundation Member of the IAWSS.

23. The 24 September Letter concluded as follows:

"If we do not receive the above confirmation by close of business on 30 September 2025, we anticipate receiving instructions to immediately commence proceedings without further notice for orders/declarations."

18. No response was received by 30 September 2025. Mr Haq did not, however, take any steps to bring the action which he had threatened at that time.

19. On 25 October 2025, Mr Haq was informed by Mr Aijaz Khan that the IAWSS has issued a notice on the previous day, 24 October 2025, calling the 2025 AGM and the election of the Executive Council for Sunday, 23 November 2025. The relevant notice stipulated that nomination forms for those seeking election to the Executive Council must be submitted by no later than 5pm on Saturday, 15 November 2025. The stipulated deadline was consistent with cl 8 of the Constitution, which provides that:

"The nomination for each position within the executive council shall close seven (7) days before the date of elections."

20. Mr Haq deposed that Mr Khan and another person had informed him that they wished to support his nomination for election to the Executive Council. However, no nomination form was submitted in respect of Mr Haq prior to the stipulated deadline. There was evidence that nominations had been received from eleven persons in respect of the eleven positions on the Executive Council.

21. Around 4pm on Wednesday, 19 November 2025, just two clear business days before the 2025 AGM was scheduled to be held, Mr Haq commenced this proceeding, seeking orders for short service and seeking that his application for an injunction restraining the AGM from going ahead be listed for hearing on the morning of Friday, 21 November 2025.

Relevant Principles

22. The principles for the determination of an application for an interlocutory injunction are well established. The summary set out below is drawn from the decision of McGrath J in May v Walker [2023] NSWSC 1628 at [130] to [142], to which I was referred by Senior Counsel for the Defendant in the course of oral submissions:

“130 The task of a court determining whether to exercise the power to grant an interlocutory injunction is to do so in a manner which achieves justice between the parties pending the final hearing of the proceedings.

131 This was expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2009] HCA 63, Gleeson CJ at [12] stating:

‘The justice and convenience of imposing interim restraint, pending the hearing of the final action, if it exists, lies in the need to prevent the practical destruction of that right before there has been an opportunity to have its existence finally established.’

132 The principal inquiries to be made in deciding whether to grant an interlocutory injunction have been expressed in slightly different terms but to the same effect.

133 In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1968] HCA 58, Mason ACJ at [11] said:

‘In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.’

134 In Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46, Gleeson CJ and Crennan J at [19], after repeating these inquiries, described them as:

‘… the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed.’

135 In O'Neill, Gummow and Hayne JJ (with whose reasoning Gleeson CJ and Crennan J agreed) at [65] expressed the first inquiry in this manner (footnotes omitted):

‘The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

“The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.”

By using the phrase ‘prima facie case’, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”’

136 The inquiry involving the balance of convenience is determined by whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1, Kitto, Taylor, Menzies and Owen JJ at 622-623. The plaintiff bears the onus of establishing that the balance of convenience lies in favour of granting the interlocutory injunction: O'Neill, Gummow and Hayne JJ at [71].

137 While the factors to be taken into account in determining where the balance of convenience lie will vary with the circumstances of each case, common ones include the strength of the plaintiff's case, the hardship to the parties and third parties, delay, the utility of the proposed orders and the sufficiency of the plaintiff's undertaking as to damages.

138 The strength of the party's case for final relief is an important consideration in determining where the balance of convenience lies, there being a connection between the inquiry about the serious question to be tried and the balance of convenience. In Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 106 IPR 218; [2014] FCAFC 59, Allsop CJ, Jagot and Nicholas JJ at [70] said:

‘Whether an applicant for an interlocutory injunction has made out a prima facie case and whether the balance of convenience favours the grant of such relief are related questions. It will often be necessary to give close attention to the strength of a party's case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.’

139 The stronger the case for final relief and therefore the likelihood of success, the less is needed for the balance of convenience in favour of the grant of the interlocutory injunction: BMW Australia Ltd v Brewster (2019) 269 CLR 574; [2019] HCA 45, Edelman at [216].

140 The hardship to the parties and the nature of it is a central feature in the discretionary considerations to be addressed in the balance of convenience because it requires the court to assess the harm to the plaintiff is there is no injunction and the prejudice or harm to the defendant if the injunction is granted: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156, Dowsett, Foster and Yates JJ at [62]. The question of whether damages would be an adequate remedy for the plaintiff must always be considered as part of this inquiry, which “involves an assessment by the court as to whether the plaintiff would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted”: Samsung at [62].

141 The interests of third parties are also relevant to the balance of convenience, including any detriment caused to them if an injunction were refused, and whilst the weight of those matters depends on the circumstances of the case, they will rarely be decisive: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30, Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ at [65]-[66].

142 The giving of an undertaking as to damages by the plaintiff is generally an essential condition to the grant of an interlocutory injunction, unless there are exceptional circumstances: First Netcom Pty Ltd v Telstra Corp Ltd (2000) 101 FCR 77; [2000] FCA 1269, Beaumont, Burchett and Emmett JJ at [22]; Goater v Commonwealth Bank of Australia [2014] NSWCA 265, Ward JA (as her Honour was then) at [92]. If it is demonstrated that the plaintiff has no assets, the undertaking offered may be of no assistance, although there is no inflexible rule that plaintiff should be denied interlocutory relief unless a meaningful undertaking is given: Organic Marketing Australia Pty Ltd v Woolworths Ltd [2011] FCA 279, Katzman J at [69], citing Caravelle Investments Ltd v Martaban Ltd (1999) 95 FCR 85; [1999] FCA 1505 Finkelstein J at [25]. If it is known that a plaintiff does not have sufficient resources to satisfy an undertaking as to damages, it may provide a basis on which to refuse an interlocutory injunction: Bond v Gray [2013] NSWSC 1793 at [29]-[30].”

Serious Question to be Tried

23. Mr Haq's case is, in short, that:

24. he has been a Foundation Member of the IAWSS since 1994;

25. he has never received any notice of his expulsion, suspension, or termination of his membership;

26. he paid membership fees on an annual basis at all times up until 2021;

27. while he did not pay fees for a period of three years following 2021, such that he became a "non-financial member" under the Constitution, he proffered the outstanding amount in December 2024; and

28. he has, by proffering that amount, renewed his status as a financial member of the IAWSS, such that he is entitled to stand for election to the Executive Council.

29. The IAWSS disputed Mr Haq's account. In particular, the IAWSS referred to the fact that there was a proceeding in this Court in 2012 (2012 Proceeding), in which the IAWSS pleaded, relevantly, that Mr Haq was expelled from membership of the IAWSS at a meeting on 16 May 2010. In support of this claim, the IAWSS filed affidavit evidence in the 2012 Proceeding from its then secretary, Mr Masud Cheema, who deposed that Mr Haq had been expelled at a meeting on that date. Mr Cheema appears to have exhibited the minute book to his affidavit (but this exhibit was not in evidence on the present application).

30. There was no reference to this issue in the reasons for judgment of Pembroke J in the 2012 Proceeding. However, his Honour made orders on 26 September 2012 declaring the membership of the IAWSS, and Mr Haq (who had previously been designated as member no. 189) was omitted from the list of members which was annexed to those orders. An appeal from Pembroke J's orders was dismissed. It should be noted that Mr Haq was not a party to the 2012 Proceeding.

31. Although these matters regarding the 2012 Proceeding were raised in IAWSS’s evidence in response to Mr Haq’s application, Mr Haq did not refer to those matters in his reply affidavit. It is open to infer that he was aware of the orders made by Pembroke J in the 2012 Proceeding (which would explain why he does not appear to have raised any query regarding the fact that the IAWSS ceased sending him communications from around 2010).

32. The IAWSS also relied on affidavit evidence from Mr Nasib Mohammed, who is the secretary of the IAWSS (and was secretary from 2013 to 2018, and then president from 2018 to 2023). Mr Mohammed deposed that Mr Haq has not paid any fees during the time that Mr Mohammed has been an officer of the IAWSS (that is, since 2013). That is a significant matter. Pursuant to clause 6(1)(d) of the Constitution, a person ceases to be a member of the IAWSS if the person defaults in payment of membership fees for five consecutive years.

33. Mr Haq's evidence in respect of the payment of membership fees is limited to a statement in his affidavit that such payments were made. He deposes that the bank accounts from which those payments were made have subsequently been closed, but he does refer to any attempt to contact the bank to obtain statements for those accounts, and does not refer to any receipt, or document, or communication relating to any such payment.

34. In those circumstances, without needing to resolve any factual issues in respect of the payment of membership fees on this application, I accept the IAWSS’s submission that Mr Haq's case that he has, at all times, remained a member of the IAWSS appears, on the current state of the evidence, to be relatively weak. Nonetheless, I have determined this application on the basis that there is a serious question to be tried as to the status of Mr Haq’s membership of the IAWSS.

Balance of Convenience

30. Whatever Mr Haq’s knowledge of the evidence filed or orders made in the 2012 Proceeding, he was plainly aware, from at least 12 December 2024, that the IAWSS was of the view that he was not a member. On that day, immediately after the IAWSS received the payment of $175.00 from him, it returned that amount and made its position on this issue clear.

31. Further, Mr Haq was aware, as shown by the terms of the 24 September Letter, that pursuant to the Constitution, the elections of the Executive Council are to be held at an AGM, and that such AGM is to be held within a short time after the end of the financial year. If he was minded to stand for election to the Executive Council at the 2025 AGM, he had a period of many months from December 2024 in which to agitate the issue of his membership of the IAWSS, and, if necessary, bring an application in this Court about that matter. Instead, he did nothing until the 24 September Letter was sent. That delay of more than nine months was wholly unexplained.

32. In the 24 September Letter, Mr Haq's solicitor expressly referred to the need for the election of the Executive Council to be held, and his client's desire to nominate for election to the Executive Council. In that context, a demand was made for a response within less than one week, following which it was said that Mr Haq intended to immediately commence proceedings without further notice, seeking orders and declarations regarding his membership. No response was received. Again, Mr Haq took no step at that time. This delay was also unexplained. If Mr Haq had commenced a proceeding on around 1 October 2025, it might well have been the case that, in the two-month period prior to the 2025 AGM, there could have been a final determination of his claim.

33. On 25 October 2025, Mr Haq was informed that a notice of the 2025 AGM had been issued on the previous day, which, as I have noted at paragraph [19] above, required nominations by 15 November 2025 for the Executive Council. Mr Haq did not approach the Court for another 25 days, which was several days after nominations had closed and two business days before the meeting was due to be held. That delay was also unexplained.

34. That leads to this situation: if the Court were able to conduct a final hearing of Mr Haq's claim today and determine that he is and has remained a member of the IAWSS at all times, Mr Haq would be unable to stand for election to the Executive Council because he has not been nominated for election by the prescribed deadline.

35. It has often been observed that Courts are generally very reluctant to prevent meetings of members or to prevent people casting votes at meetings of members: see, for example, Countouris v Kallos [2008] NSWSC 840 at [14] (Young CJ in Eq); Cox v Animal Welfare League of New South Wales [2017] NSWSC 374, at [31] (Ward CJ in Eq (as her Honour then was)).

36. In light of the matters set out above, I am not satisfied that the balance of convenience favours the grant of an injunction to restrain the election going ahead. That is for three main reasons.

37. First, for entirely unexplained reasons, Mr Haq, having received the 12 December Letter almost a year ago, delayed in bringing any application to enforce his asserted rights as a member of the IAWSS until two business days before the 2025 AGM was due to be held (and several days after nominations for election to the Executive Council had closed).

38. Secondly, having delayed in taking any action, Mr Haq now seeks to prevent the eleven people who have nominated from being elected to the Executive Council in two days' time. This would cause prejudice to those persons who nominated for election before the stipulated deadline, and would also cause prejudice to the IAWSS, which would be required to hold a further meeting at significant cost. In that regard, there was evidence that the cost of the scheduled 2025 AGM is around $5,000.

39. Thirdly, I do not, in contrast, consider that it will cause significant prejudice to Mr Haq if the meeting goes ahead as scheduled. He has not participated in the IAWSS for the past 15 years. If his claim to membership of the IAWSS is established, he will be able to participate in the next round of Executive Council elections. If he has missed this round, that is not a consequence of the conduct of the IAWSS, who notified him of their view regarding his membership almost a year ago. Rather, Mr Haq will have missed such an opportunity due to his own delay in taking steps to vindicate his asserted rights as a member in the intervening period, instead waiting until the eve of the election and after nominations have closed before approaching the Court.

40. For those reasons, I reject Mr Haq’s application for an injunction to restrain the IAWSS from holding an election of members to its Executive Council on Sunday, 23 November 2025.

orders

41. Accordingly, I make the following orders:

42. The Interlocutory Application be dismissed, with costs.

43. List the matter for directions in the Corporations List on 9 February 2026.

44. Direct the Plaintiff to file points of claim and any further evidence by Friday, 30 January 2026

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