RUSHES PTY LTD v THOMAS [1990] NSWCA 195

RUSHES PTY LTD v THOMAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS (1), MEAGHER (2) AND HANDLEY (3) JJA 9 May 1990, 9 May 1990 [1990] NSWCA 195

APPEAL AND NEW TRIAL — ultimate finding of fact dependent upon application of legal standard — failure to give reasons for decision an error of law — Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered and applied.

WORKERS COMPENSATION — COMPENSATION COURT — failure to give reasons for finding of fact where finding dependent upon application of legal standard an error of law.

Samuels JA The respondent, Mr Thomas, between 1968 and 1975 traded in his own name as a photographer in the advertising and fashion field. He then commenced to make television commercials and in 1977 acquired a shelf company called Hayegu Pty Limited, which on 20 December 1977 changed its name to Rushes Pty Limited. It is the present appellant.

The respondent and a solicitor, Mr Graham Hicks, were the first directors. The appellant carried on a business, which is described in the evidence as a production company specialising in television commercials, from premises in Whaling Road, North Sydney in which the respondent himself lived.

In 1981 Mr TB Accola, an accountant, replaced Mr Hicks. Thereafter, the respondent and Mr Accola were the sole shareholders and directors of the appellant, Mr Accola holding his share in trust for the respondent. Mr Accola acted as the appellant's accountant and public officer, keeping its books and preparing its tax returns.

It seems (there are not specific findings upon each of these points) that the appellant's function was to provide a quote for the cost of realising television commercial films, the basic idea and story line for which would be submitted by an advertising agency. That idea might be given with greater or lesser detail.