Gould v Companies Auditors and Liquidators Disciplinary Board (No 3) [2009] FCA 1017

FEDERAL COURT OF AUSTRALIA

Gould v Companies Auditors and Liquidators Disciplinary Board (No 3) [2009] FCA 1017 VANDA RUSSELL GOULD v COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

NSD 1590 of 2008

LINDGREN J

11 SEPTEMBER 2009

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 1590 of 2008

BETWEEN: VANDA RUSSELL GOULD

Applicant

AND: COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD

First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

JUDGE: LINDGREN J

DATE OF ORDER: 27 August 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The questions of law raised in the applicant's Further Amended Supplementary Notice of Appeal filed in Court on 11 December 2008 be answered as follows: Question 1: Whether the true legal effect of the resolutions in issue was merely to set the basis or hourly rates of the applicant's fees and that they did not determine or approve or fix the amount (or any amount) of his fees? No Question 2: Whether the true legal effect or construction of the IPAA Guidelines in question, was that no upper limit or cap was required to be included in the resolutions in issue? No Question 3: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to find that the resolutions in issue were not intended by the applicant to determine the amount of his fee? No Question 4: Whether the Tribunal, contrary to law, denied the applicant procedural fairness by finding that the resolutions in question were intended by the applicant to determine the amount of his fee? Not necessary to answer Question 4A: Whether the Tribunal erred in failing to provide reasons for rejecting the Applicant's evidence that the resolutions were only or merely intended to approve the basis of his fees not any actual remuneration or, alternatively, erred in failing to have regard to the applicant's evidence to this effect? Not necessary to answer Question 5: Whether the Tribunal misapplied the onus of proof or otherwise acted contrary to law in drawing an adverse inference from the absence of evidence of the applicant seeking approval of a fee amount later? Not necessary to answer Question 6: Whether the Tribunal erred in law in taking into account an irrelevant consideration, being the absence of evidence of the applicant seeking approval of the fee amount later and the personal state of mind of the applicant towards the resolutions in question? Not necessary to answer Question 7: Whether the true legal effect of the IPAA Guidelines in question was not to set a mandatory professional standard and, therefore, they could not be a "duty" or "function" within the meaning of 1292(2)(d)(i) and (ii) of the Corporations Act? Yes Question 8: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to dismiss Contentions 2.6, 4.4 and 6.3? Yes Question 9: Whether the letters in question were "business letters" within the defined meaning of a "public document" set out in s 88A(1)(c) of the Corporations Law? No Question 10: Whether the letters in question "purport" to be "signed by or on behalf of the company" within the defined meaning of a "public document" set out in s 88A(1)(c) of the Corporations Law? No Question 11: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to dismiss Contentions 2.9 and 4.6? Yes Question 12: Whether the Tribunal erred in law in holding that "it would be unreasonable to expect the respondent to adduce direct evidence, such as its document receipt log or the documents themselves"? No Question 13: Whether the Tribunal erred in law in taking into account an irrelevant consideration, being that "In the normal course of commercial and government business today, such original documents might well have been archived long ago and might be difficult, if not impossible, to retrieve"? No Question 14: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to find that the second respondent had failed to prove that the documents in issue had been lodged one day late? No Question 14A: Whether the Tribunal erred in law in admitting and placing weight upon the invoices (C14 60-62) and the letter of Mr Steinkellner (C18 68) as evidence of the date of lodgement of the Forms? No Question 14B: Whether the Tribunal's finding that the Forms were lodged on 12 November 1998 was made without evidence or other material to justify it or was unreasonable or unfair? No Question 15: Whether the Tribunal, contrary to law, denied the applicant procedural fairness in finding that the applicant breached his "duty to perform the work with reasonable care and skill and in an efficient and economical way" by failing to "allow a margin of a couple of days to guard against the risk of late delivery"? No Question 15A: Whether the Tribunal's above finding of breach of duty was made without evidence or other material to justify it, or was so unreasonable that no Tribunal could have found a breach of duty? No Question 16: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to find that the late lodgement fee was a proper expense within the meaning of s 556(1)(a) of the Corporations Law? No Question 17: Whether the Tribunal, contrary to law, denied the applicant procedural fairness by making the adverse findings as to the applicant's credit at [229] of the decision? Yes Question 18: Whether no person acting reasonably, judicially and properly instructed as to the law could have made the adverse findings as to the applicant's credit at [229] of the decision? Yes Question 19: Whether the Tribunal erred in law in taking into account an irrelevant consideration, being that the applicant's application for a waiver of fees strongly suggests that he believed he was personally liable for them? Yes Question 20: Whether the Tribunal erred in failing to deal with and uphold the applicant's submission that at the time the applicant had a lien over all of the funds in the liquidation for his fees and that all such funds were in due course payable to him as would have been known to the applicant at the time? No Question 21: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to dismiss Contention 6.5? No Question 22: Whether the Tribunal acting reasonably, judicially and properly instructed as to the law was required to dismiss Contentions 6.6 and 6.7 because: (a) the statement of the charge failed to identify with sufficient precision the allegation being made and the Tribunal refused the second respondent leave to amend to supply such particulars; and/or Yes (b) there was no evidence or other material to justify the upholding of the Contention? Yes Question 23: Whether the Tribunal had jurisdiction to hear and determine Contentions 2.1, 6.5, 6.6 and 6.7A? Yes Question 24: Whether the Tribunal in order to protect the applicant from oppressive conduct or unfair dealing by the second respondent was required at law to dismiss or to decline to deal with Contentions 2.1, 6.5, 6.6 and 6.7A? No 2. The questions of law raised in the second respondent's Amended Notice of Contention filed on 6 August 2009 be answered as follows: 1. In respect of contention 2.1: (a)Whether the Tribunal erred in finding that the resolution of the company on 11 September 2000 could as a matter of law operate on a prospective or nunc pro tunc basis. Not necessary to answer (b)Whether the Tribunal erred in finding that the said resolution did operate prospectively. No 2. In respect of contention 2.11 whether the Tribunal erred in finding that upon a proper construction of the DCA, there was no requirement for a meeting of creditors. Yes 2A. In respect of contention 2.11 in the absence of any declaration of a final dividend or any decision one way or the other to declare a final dividend, whether an unchanged decision by the Administrator to abandon all legal proceedings and conclude the administration meant that it was no longer practicable to implement the Deed within the meaning of clause 3 of the prescribed provisions? Yes 3. In respect of contention 6.6 and 6.7A, whether the Tribunal erred in: (a) Failing to consider whether the form 524's contained information that was "false" in a material particular. Yes (b) Finding that the form 524's were not misleading. Inappropriate to answer 3. The decision of the Administrative Appeals Tribunal that the decision of the Companies Auditors and Liquidators Disciplinary Board that was under review be affirmed, be set aside. 4. If and to the extent that the Administrative Appeals Tribunal's answers of Issues (i) and (ii) in the affirmative are "decisions" within the meaning of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), those decisions be set aside. 5. The case be remitted to the Administrative Appeals Tribunal to be decided in accordance with law, and, in particular, in accordance with the answers given to questions of law set out in orders 1 and 2 above and with this Court's reasons for decision dated 12 May 2009 and 10 August 2009. 6. Without prejudice to the generality of order 5 above, the Contentions be disposed of in accordance with this Court's answers to questions of law referred to in order 5 above. 7. The respondent pay 60% of the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA