Whalebone v Auto Panel Beaters & Radiators Pty Ltd (In liquidation) & Ors [2011] NSWCA 176

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Whalebone v Auto Panel Beaters & Radiators Pty Ltd (In liquidation) & Ors [2011] NSWCA 176 Hearing dates: 17 June 2011 Decision date: 04 July 2011 Before: Giles, JA at [1], McColl JA at [39], Macfarlan JA at [40] Decision: (1) Appeal and the cross-appeal dismissed. (2) Appellant pay the respondents' costs of the appeal and cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURAL FAIRNESS - Failure of trial judge to disclose prior advising and appearance as counsel in interests of companies of which respondent was receiver - appellant accepted that prior advising and appearance did not disqualify trial judge - appellant submitted that denial of opportunity to consider application for disqualification gave rise to a reasonable apprehension of bias - non-disclosure not matter of right or duty - no denial of procedural fairness - non-disclosure does not give rise to reasonable apprehension of bias when prior advising and appearance did not disqualify trial judge - appeal dismissed

PROPERTY - Transfer of property by appellant to one of two companies with similar name - question of appellant's intention - trial judge found intention to transfer to respondent - on facts, no basis to overturn finding - appeal dismissed Cases Cited: Antoun v R [2006] HCA 2; (2006) 224 ALR 51; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 33; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Re Polites, Ex parte The Hoyts Corporation Pty Ltd (1991) 173 CLR 78; S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 Category: Principal judgment Parties: Roger Whalebone - Appellant Auto Panel Beaters & Radiators Pty Ltd (In liquidation) - First Respondent Barclay Services Pty Ltd (formerly known as Auto Panel Beating & Radiators Pty Limited) - Second Respondent Registrar-General (now Land and Property Management Authority)- Third Respondent Representation: G Rundle - Appellant J Simpkins SC & M Henry - First Respondent Miles Barclay (Solicitor) - Second Respondent Submitting appearance - Third Respondent Christopher Garry Bryett - Appellant Watson Mangioni Lawyers Pty Ltd - First Respondent Solicitor for the Land and Property Management Authority - Third Respondent File Number(s): 2008/281358 Decision under appeal Citation: Auto Panel Beaters & Radiators Pty Ltd (In liquidation) ACN 000 417 590 v Barclays Services Pty Limited (formerly known as Auto Panel Beating & Radiators Pty Limited) ACN 000 359 171 [2009] NSWSC 1165 Date of Decision: 2009-11-17 00:00:00 Before: Forster J File Number(s): ED 5462/08