"Pradeep Singh" is P S Gill and "Balbir Kaur" is Balbir Singh.
20 A number of motions are recorded as having been proposed and seconded at the meeting, without any record of their having been carried so as to become resolutions. There are, however, resolutions and associated commentary as follows:
"Resolved that Shaun Jit Singh liaised with the Executive Committee and the accountants for a meeting.
Resolved that a vote be taken in view of membership issue. This is subject to Executive Committee meeting with the Accountants to scrutinise any discrepancies.
In favour to the above resolution: Daljit Bahia, Pradeep S Gill, SS Rangi, P Punia, N Sidhu, S Singh & A Kalra
Not in favour: Telochan Singh, Balbir Kaur
Resolved that any costs incurred subsequent to the first meeting with the Accountants will be borne by the visiting parties."
21 Two days after this meeting, Terlochan Singh, one of the persons who in fact took on the envisaged scrutinising role wrote to the secretary of the Association asking for certain documents "so that I could fulfil my responsibility entrusted to me on 8 December 2002 (along with the help of Mrs Balbir Singh) of scrutinising the applications for the new Trustees & for ordinary members".
22 Terlochan Singh wrote several further letters repeating his requests. These were addressed variously to the secretary, to R S Punia and to Shaunjit Singh. In one such letter, dated 27 January 2003, Terlochan Singh said that he had visited the accountants, Sothertons, on 21 January 2003 and had noted six "discrepancies", which he listed. These included:
"1. Receipts of payments for majority of the said members do not exist.
2. Majority of the receipts which were shown to me by the accountants are the donations to the Building Fund and not for membership …
3. The accountants informed us that 7 members out of your list of 47 have not paid full membership/trusteeship fee. They have only made part payment.
4. The accountants have also informed us that about $15,000 worth of cheques have been dishonoured, the names of drawer are unknown. Under these circumstances you do not know as to who has paid and who has not paid."
The meeting of 8 February 2003
23 On 8 February 2003 there was a meeting which, according to the typewritten minutes, was a meeting of the Board of Trustees. Those typewritten minutes, with handwritten interlineations, record as follows:
"The minutes of 8 December 2002 were read and signed but 2 dissenting members Terlochan Singh & Balbir Kaur noted against passing the forty seven members and since being to the Accountants (Messrs Sothertons Chartered Accountants) have raised certain issues, validity of membership (lack of certain documents).
With such issue not being resolved, it was resolved that after submission of accounts, the Trust Board members may not be able to proceed further and therefore will intend to resign subject to legal opinion.
This process is after handling [sic] all documents/findings to the issuer of "The Short Minutes'."
24 This typewritten version is unsigned. But there exist what purport to be handwritten minutes of the same meeting which appear to carry nine signatures (there being nine persons recorded as present). The handwritten minutes record the following:
"Chairman: Purpose that we seek legal opinion in regards to membership issues. This is in line to recommendations made by Terlochan Singh that there must be clear transparencies, and further to establish remedies available to the Board of Trustees esp for missing application forms, missing receipt books, absence of signature etc.
S.S. Rangi: Raised concerns whether the discrepancies can be fixed before AGM. He too informed all present that similar absence of applications have occurred in the past.
Sukhdev Sh: Informed all present that per the directives an AGM must be convened by March 2003. He further seek information about other members in application.
D. Bahia: Tendered his resignation to S.S. Rangi in writing from being a member of the exec committee.
The minutes of 8/12/02, were read and signed but the 2 dissenting members TC/BK voted against passing the 47 members & since being to the Accountants have raised certain issues, validity of membership (lack of certain documents).
With such issues not being resolved, we feel that after submission of Acc's in March the Board Members are unable to proceed further and therefore will intend to resign there after.
This process is after handing over all documents/findings to the issuer of 'The Short Minutes'."
25 There is a footnote, below the signatures and itself apparently signed by two persons as follows:
"The step up members who had given $1,000 earlier their application forms at that time will be with sec/treasurer as such the payment receipt number can prove the payment/receipts."
The meeting of 4 June 2003
26 A further meeting was held on 4 June 2003. Handwritten minutes are in evidence. Shown as present are "SSR" (S S Rangi), "AK" (Ajit Kalra), "NS" (Nana Sidhu), "SS" (Shaunjit Singh) and "RSP" (R S Punia). The minutes do not describe the meeting as a meeting of the Board of Trustees, but since the five persons shown as present were the five members of that body, it may be accepted that it was a meeting of the Board of Trustees. The following resolution was recorded:
"After discussion resolved:
· Committee to write seeking refund of legal fees
· Approve disputed members
· Provide accountants with list of trustees who have loaned monies
· Resolved to hold AGM Sunday 5th of July
· Send notice of AGM to members
· Send acceptance letters to disputed members"
27 The handwritten minutes carry five signatures.
28 Also on 4 June 2003, S S Rangi wrote to the 47 applicants informing them that their applications had been found to be in order and saying:
"On behalf of the Trust Board and the North Shore Sikh Association, I am pleased to advise you that you have now become a Trustee/Ordinary Member of the North Shore Sikh Association of Sydney Inc, and I extend a warm welcome to you."
29 The letters were sent on a prepared form. One of "Trustee" and "Ordinary" was struck through in each case. In some, perhaps all, cases, the letter was signed not only by S S Rangi but also by four other persons.
Relevant provisions of the constitution
30 Against the factual background just outlined, I turn to the relevant provisions of the Association's constitution. As I have said, there are two classes of members: "members" simpliciter and "Trustees". Article 6 requires that every applicant for membership be proposed by one Trustee and seconded by another. The application must be in writing signed by the applicant, the proposer and the seconder. Article 7 requires that every application be considered by a meeting of "the Committee" (which can only mean the Executive Committee) which "shall thereupon determine upon the rejection; or recommendation of admission to the Board of Trustees of the applicant". It is clear, I think, that "rejection" by the Executive Committee puts an end to an applicant's prospects, subject only to the possibility that an appeal against rejection may be brought before the Board of Trustees. There is provision for a rejected applicant to initiate such an appeal.
31 It is desirable that article 7 be set out in full, together with article 8:
"7. At the meeting of the Committee after the receipt of any application for membership, such application shall be considered by the Committee who shall thereupon determine upon the rejection; or recommendation of admission to the Board of Trustees of the applicant. In no case shall the Committee be required to give any reason for the rejection of an applicant, but any such rejection, on appeal, shall be reviewed by the Board of Trustees whose decision will be final.
8. When an applicant has been accepted for membership the Board of Trustees shall forthwith send to the applicant written notice of his/her acceptance and a request for payment of his/here entrance fee and first annual subscription. Upon payment of his/her entrance fee and first annual subscription the applicant shall become a member of the Association, provided nevertheless that if such payment be not made within six calendar months after the date of the notice, the Committee may in its discretion cancel its acceptance of the applicant for membership of the Association."
32 It is here made clear that the function of accepting a person for membership (which is, in my view, the same thing as admitting a person to membership) is a function of the Board of Trustees, but that membership entails not only such acceptance or admission but also payment of the entrance fee and first annual subscription. It is equally clear, in my opinion, that applications or nominations are to be dealt with in the first instance by the Executive Committee and that a person cannot be admitted to membership by the Board of Trustees unless the person's admission has been recommended by the Executive Committee.
Further evidence about the meetings
33 It is now necessary to go into more detail about the meetings of 8 December 2002, 8 February 2003 and 4 June 2003.
34 According to the minutes of the meeting of 8 December 2002, the meeting was a "Trust Board Meeting" and the four persons recorded as "present" were four of the five members of the Board of Trustees. "By invitation" there were in attendance five other persons. Of the nine persons present or in attendance, all were members of the Executive Committee (which had a total membership of eleven) and four were also members of the Board of Trustees.
35 The minutes make it clear that persons recorded as in attendance "by invitation" played an active part in proceedings. The minutes record that motions were moved by Terlochan Singh and a motion was seconded by Balbir Kaur. Neither was a member of the Board of Trustees but each was a member of the Executive Committee. Voting on one proposed resolution is recorded. All nine persons are recorded as having voted. Curiously, Shaunjit Singh is recorded as having seconded two motions even though his name does not appear in the list of those present or those in attendance. The name "S Singh" has been removed from the list of those present, with the change being initialled by three persons. This must be Shaunjit Singh, as he is the only "S Singh" on the Board of Trustees (Sukhdev Singh, who was unquestionably absent, was a member of the Executive Committee only). It is Shaunjit Singh's evidence, however, that he was present, and in the absence of any suggestion to the contrary (apart from the handwritten alteration), I accept that.
36 Because the eleven persons making up the Executive Committee included the five who made up the Board of Trustees - and, in addition, ten of those persons were physically present and fully participating - I am prepared to think that the meeting of 8 December 2002 was, in fact, a meeting of the Executive Committee.
37 The resolution recorded in the minutes as having been passed at the meeting of 8 December 2002 is equivocal as to its meaning. "Resolved that a vote be taken in view of membership issue" does not suggest that any decision to recommend (or, for that matter, to reject) admission of the applicants was taken. The following words - "This is subject to Executive Committee meeting with the Accountants to scrutinise any discrepancies" - are also of questionable meaning, if only because one cannot tell what "this" is.
38 Individuals present at the meeting gave evidence of what transpired. Shaunjit Singh's version is summed up by his statement, "I voted in favour of scrutiny, not approval". Terlochan Singh thought that the resolution was just to authorise him and Balbir Singh "to do the scrutiny of the documents". Balbir Singh's recollection or understanding was the same. P S Gill said that the resolution did not correctly record the decision made - which was, on his account, an unconditional decision to admit. Nana Sidhu's account is that there was unconditional approval or, at least, approval in principle. According to S S Rangi there was approval in principle, subject to scrutiny. Ajit Kalra's evidence is that there was approval in principle, but with all the applications being sent to Sotherton's, the accountants.
39 Only two of these accounts (those of P S Gill and Nana Sidhu) could conceivably support a finding that the meeting of 8 December 2002 had, in terms of Article 6, recommended admission of the relevant applicants. In another two cases (S S Rangi and Ajit Kalra) there was "approval in principle" (a possibility also accepted by Nana Sidhu), but with a reservation or qualification about scrutiny or some form of attention to the documents by the accountants. In three cases (Shaunjit Singh, Terlochan Singh and Balbir Singh), the understanding or recollection is that the decision was no more than a decision to undertake a process of scrutiny. In two cases, the recollection is that there was "approval in principle" but subject to scrutiny - which can only mean that any approval would become operative only if the "scrutiny" was successfully completed.
40 According to the minutes, scrutiny was to be undertaken in a meeting which the Executive Committee was to have with the accountants. The preponderance of the evidence seems to show an intention that Terlochan Singh and Balbir Singh would liaise with the accountants. The subsequent correspondence shows that they in fact undertook such a task.
41 I turn now to the meeting of 8 February 2003. According to the typewritten minutes, that too was a "Trust Board Meeting", with four members of The Board of Trustees (who were also members of the Executive Committee) recorded as "present" and five members of the Executive Committee recorded as in attendance "by invitation". Again, it is possible to regard the meeting as a meeting of the Executive Committee, given the identities of those physically there. But both the typewritten minutes and the handwritten minutes make it clear that the "Trust Board Members" (or "Board Members") had formed an opinion that they were not able (or might not be able) "to proceed further". The reference here is, clearly enough, a reference to proceeding with the disputed applications for membership. According to each set of minutes, it had been recognised that there were outstanding and unresolved "issues" regarding the disputed applications. Sukhdev Singh says in his affidavit that these "issues" were reported by R S Punia to be missing application forms, missing receipt books and absence of signatures.
42 On no view of matters can the meeting of 8 February 2003 be taken to have resolved to recommend the admission of any person as a member or actually to admit anyone to membership. Nor did it resolve to reject. Rather, the impression is that the process that had been set in train at the earlier meeting (whatever its precise nature may have been) was continuing but was in danger of breaking down. The evidence about the meeting of 8 February 2003 reinforces the conclusion that there had been no decision at the meeting of 8 December 2002 to recommend admission. Had that been the case, there would have been no need for the matter to be revisited at a further meeting, as it was on 8 February 2003.
43 The third meeting is the meeting of 4 June 2003. The plaintiffs maintain that this meeting was invalid and of no effect. They contend that no notice of the meeting was given and that the first plaintiff, Shaunjit Singh, was not present. This is so, the plaintiffs say, even though the handwritten minutes carry five signatures. There is a question whether any of them is the signature of Shaunjit Singh. It is appropriate to move at once to a consideration of this factual matter.
Was Shaunjit Singh present at the meeting of 4 June 2003?
44 Shaunjit Singh gave evidence that he was not present at any meeting on 4 June 2003 and was not given notice of any such meeting. He also testified that he did not sign any of the letters notifying persons of their admission to membership. There appear on other documents in evidence (specifically, those at pages 147, 158, 221 and 246 of Exhibit 10) signatures which Shaunjit Singh accepts to be his. He explained that his full name is "Shaunjit Singh Thiara" and that his signature is "Shaun Thiara", without either "Jit" or "Singh". This is borne out by the several examples of signatures on documents in evidence that he accepts to be his.
45 Nana Sidhu gave evidence that Shaunjit Singh was at the meeting of 4 June 2003. He said that all five members of the Board of Trustees signed the minutes and the letters to the persons admitted to membership. He was "absolutely certain" about this. However, he was not familiar with Shaunjit Singh's signature and could not identify it on the minutes or on the letters to the persons allegedly admitted to membership.
46 S S Rangi's evidence on this matter was to the same effect. He was certain that Shaunjit Singh was at the meeting and that he signed the minutes. However, he could not identify Shaunjit Singh's signature on the minutes because he was not familiar with it.
47 Ajit Kalra gave the same evidence. When asked whether Shaunjit Singh was present at the meeting of 4 June 2003, he replied:
"100 per cent certain and all the five members signed it."
48 The fifth person said to have been present at the meeting, R S Punia, did not give evidence. There was evidence of attempts to obtain an affidavit and to subpoena him. However, no subpoena was served, as it appears that he is working in Hong Kong and is likely to be there for some time.
49 The position is thus that, of the four persons who were recorded in the minutes as present at the meeting of 4 June 2003 and gave evidence, three say that Shaunjit Singh was present while he himself says that he was not present. The three also say that he signed the minutes. He says that he did not.
50 Looking at the handwritten minutes of 4 June 2003 and having regard to identification of signatures by witnesses, it is possible to isolate with a fair degree of certainty the signatures of S S Rangi, Ajit Kalra, R S Punia and Nana Sidhu.
51 That leaves one signature unaccounted for. It is the bottom-most signature slightly to the left of centre of the page. On the letters notifying persons of their admission to membership, the four identifiable signatures I have mentioned can again be seen and one signature is again left unaccounted for. It is, in each case, the first signature following the typewritten "Chairman, Trust Board" beneath the signature of S S Rangi. The fifth signature in this case does not appear to resemble the fifth (and unaccounted for) signature on the handwritten minutes. On the letters, the fifth signature could be "S Singh". It is indecipherable on the minutes.
52 It is clear that neither of the signatures in question is the signature "Shaun Thiara" which the evidence sufficiently shows is the usual signature of Shaunjit Singh. Nor does the handwriting appear, in either case, to resemble that in which the several "Shaun Thiara" signatures are written.
53 I find therefore, that Shaunjit Singh did not sign the handwritten minutes of the meeting of 4 June 2003 or the several letters informing persons of their admission to membership.
54 This necessarily casts doubt over the evidence of Nana Sidhu, S S Rangi and Ajit Kalra on this aspect. Each was firm and definite in stating that Shaunjit Singh signed the minutes. Nana Sidhu was "absolutely certain".
S S Rangi was certain. Ajit Kalra was "100 per cent certain" that all five members signed. Yet the documentary evidence shows that Shaunjit Singh did not sign. It must follow that the same certainty of each as to Shaunjit Singh's presence at the meeting is, to say the least, questionable. Given that, I do not feel an actual persuasion that Shaunjit Singh was present. It must be remembered that there were a number of relevant meetings and that recollections were recorded in affidavits sworn years after the event. By the time the participants gave oral evidence, almost four and a half years had passed.
55 I therefore record my findings that Shaunjit Singh was not present at the meeting of 4 June 2003, did not sign the minutes of that meeting and did not sign the letters to the applicants for membership; nor was he given notice of the meeting.
Unanimous assent in any event?
56 I have not so far mentioned the provisions of the rules about proceedings of the Board of Trustees. They are surprisingly sparse. While there are detailed specifications (articles 55 to 67) about meetings and proceedings of the Executive Committee, the only relevant reference to such matters in relation to the Board of Trustees is in article 54 which requires the Board of Trustees to keep minutes, including minutes of all proceedings at all its meetings. Minutes are required to be signed by the chairperson of the meeting in question or of the next meeting.
57 I mention this matter because of the possibility that the letters to the several applicants for membership might, of themselves, warrant a finding that the Board of Trustees had resolved to admit them to membership. Unanimous and concerted action by the members of a body may have the same effect as a decision regularly made in accordance with applicable provisions; Re Duomatic Ltd [1969] 2 Ch 365. But, on the findings I have made, there was not unanimous and concerted action by the members of the Board of Trustees. One of its members, Shaunjit Singh, did not participate.
Absence of Executive Committee recommendation
58 In any event, there was never any recommendation by the Executive Committee that the applicants in question be admitted to membership. This is an important point. Even if the meetings of 8 December 2002 and 8 February 2003 can be regarded as meetings of the Executive Committee, there is no evidence that either meeting reached a decision to recommend the admission of the several applicants for membership. The minutes of the meeting of 8 December 2002 record a resolution "that a vote be taken in view of membership issue" (whatever that may mean), but this was "subject to" a stated qualification. And of the seven persons present who gave evidence, only two gave an account that could conceivably ground a finding that the meeting had recommended admission of the applicants. In those circumstances, a finding to that effect cannot be made. The strong preponderance of the evidence is that there was a decision to undertake a process of scrutiny, albeit perhaps in the context of a general expression of approval in principle. This cannot be regarded as a recommendation to admit to membership.
59 Similarly and as I have already said, on no view of matters did the meeting of 8 February 2003 resolve to recommend the admission of anyone as a member (or actually to admit anyone to membership).
60 The essential element of a recommendation by the Executive Committee was thus lacking when the meeting of 4 June 2003 proceeded to business. That meeting, if a meeting of the Board of Trustees, was therefore not competent to admit the relevant persons to membership.
61 In expressing this conclusion, I do not overlook the power of the Board of Trustees to "over-rule any Committee decision which may not be in the best interest of the Association" (article 67). It cannot be suggested that the Board of Trustees somehow overruled the non-decision of the Executive Committee on the matter of recommendation. Apart from anything else, there is no evidence that any member of the Board of Trustees turned his mind to that matter; nor is any "overruling" decision referred to in the evidence or the minutes of any meeting of the Board of Trustees.
Tenure of the Executive Committee elected in November 2001
62 I turn now to another matter. I have assumed, to this point, that the eleven persons mentioned at paragraph [17] above were in office as members of the Executive Committee when the meetings just discussed took place (I have found that Harmit Pal Singh was not so in office). I pause at this point to test that assumption and to deal with a matter which seems to be fatal to any conclusion that the Executive Committee functioned after 31 March 2002 (or, perhaps, 31 December 2002).
63 I begin by observing that the only overlap between Board of Trustees and Executive Committee envisaged by the constitution is that provided for in articles 18, 44 and 45:
"18. The Convenor and the Financial Controller shall also be the Honorary Secretary and Honorary Treasurer of the Association.
…
44. At the first general meeting of the Association and at the annual general meeting of the Association in each calendar year thereafter the office-bearers and other members of the Committee shall be elected from among the members (except the Honorary Secretary and the Honorary Treasurer) and such office-bearers and other members of the Committee shall hold office until the next annual general meeting when they shall retire but they shall be eligible for re-election.
45. The Honorary Secretary and the Honorary Treasurer shall be the Convenor and the Financial Controller respectively from the Board of Trustees."
64 The Convenor and the Financial Controller are two of the four officers who, along with three other elected Trustees, make up the Board of Trustees. This is provided for in article 18 to which it will be necessary to return.