Calwell-Smith v Director-General Department of Finance and Services [2012] NSWSC 413

Supreme Court New South Wales

Medium Neutral Citation: Calwell-Smith v Director-General Department of Finance and Services [2012] NSWSC 413 Hearing dates: 17,18 and 19 October 2011 Decision date: 01 May 2012 Before: Rothman J Decision: (1) Judgment for the plaintiff; (2) The first defendant's appointment of the second defendant to administer the affairs of Essential Personnel Association Inc, effected on 9 March 2011, is set aside on and from the date of this judgment; (3) The first defendant shall pay the plaintiff's costs of and incidental to these proceedings, as agreed or assessed. Catchwords: ASSOCIATIONS - Associations Incorporation Act 2009 (the Act) - Director-General of Department of Finance and Services appointed administrator - s 55 of the Act - review sought - nature of review - full merits review - effect of non-compliance with antecedent 1984 Act - "persistently" - power of Director-General discussed - "interest of creditors" - evidence before Court different from and more complete than material before Director-General. Legislation Cited: Associations Incorporation Act 2009 Associations Incorporation Act 1984 Supreme Court Act 1970 Farm Debt Mediation Act 1994 Cases Cited: Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493 Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1 Drake v Minister to Immigration and Ethnic Affairs (1979) 46 FLR 409 Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 Ex parte Australian Sporting Club Ltd; re Dash (1947) 47 SR (NSW) 28 House v The King (1936) 55 CLR 499 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Onus v Alcoa (1981) 149 CLR 27 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 85 ALJR 1183 Texts Cited: Macquarie Dictionary (5th edition, 2009) Category: Principal judgment Parties: Amanda Calwell-Smith (plaintiff) Director-General of the Department of Finance and Services (defendant) Mr David Mansfield (second defendant) Representation: Counsel Mr M.P. Cleary and Mr D.H. Nagle (for the plaintiff) Ms R.M. Henderson (for the defendant) Mr C.D. Wood (submitting appearance for the second defendant) Solicitors Pryor Tzannes & Wallis (for the plaintiff) Department of Services, Technology & Administration (for the defendant) MatthewsFolbigg (submitting appearance for the second defendant) File Number(s): 2011/85295