Boorer v HLB Mann Judd (NSW) Pty Ltd [2014] NSWCA 100

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boorer v HLB Mann Judd (NSW) Pty Ltd [2014] NSWCA 100 Hearing dates: 25/03/2014 Decision date: 03 April 2014 Before: Macfarlan JA at [1]; Leeming JA at [2]; Sackville AJA at [74] Decision: Appeal dismissed, with costs. [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: TORT - professional negligence - claim by director against public company's accountant - documents lodged with ASIC by accountant incorrectly showing directors and secretary appointed although they had not consented - accountant knew officers had not given written consents - ASIC subsequently disqualified director from managing corporations based in part on incorrect forms lodged by accountant - AAT imposed shorter period of disqualification for other deficiencies, separate from incorrect forms being lodged - primary judge found director instructed accountant to lodge forms without first obtaining written consents - primary judge found no breach of duty and no loss - Fox v Percy challenges to findings of primary judge - appeal dismissed because no loss - challenges to factual findings not made out

PRACTICE - amendment - leave sought at hearing to amend notice of appeal - leave refused because of prejudice and unexplained delay Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), s 51 Civil Procedure Act 2005 (NSW), ss 56-58 Corporations Act 2001 (Cth), s 201D, s 201A, s 204A, s 204C, s 205B, s 206F, s 327A, s 533, s 1308, s 1311 Uniform Civil Procedure Rules 2005 (NSW), r 51.53 Cases Cited: Boorer v Australian Securities and Investments Commission [2010] AATA 390 Fox v Percy [2003] HCA 22; 214 CLR 118 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Levy v Bablis [2012] NSWCA 128 Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410 Warth v Lafsky [2014] NSWCA 94 Xu v Jinhong Design and Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: Graeme Boorer (appellant) HLB Mann Judd (NSW) Pty Ltd (respondent) Representation: Counsel: B Toomey QC with TJ Morahan (appellant) PA Horvath (respondent) Solicitors: Chen Shan Lawyers (appellant) Norton Rose Australia (respondent) File Number(s): 2012/396232 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 1499 Date of Decision: 2012-12-06 00:00:00 Before: Adamson J File Number(s): 2009/20468