Gooley v Motasea Pty Ltd [2015] NSWCA 31

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gooley v Motasea Pty Ltd [2015] NSWCA 31 Hearing dates: 16 February 2015 Decision date: 02 March 2015 Before: Gleeson JA; Leeming JA; Bergin CJ in Eq Decision: Appeal dismissed with costs. Catchwords: COMPANIES - membership - share register - plaintiff sought declaratory relief as to membership of private company - common ground that share register lost - proof of membership by inferential reasoning - reliance on ASIC return showing transfer of share by father - unchallenged evidence of father that he had been mistaken - inferences available to be drawn from failure to tender tax treatment of transfer - effect of unstamped transfer of shares - inferences available from role of company's registered agent - primary judge correct to have held plaintiff had not discharged burden of proof

DECLARATORY JUDGMENTS - onus - plaintiff's onus to establish on balance of probabilities all facts necessary to support declaration sought Legislation Cited: Corporations Act 2001 (Cth), ss 9, 231, 319, 352 Corporations Law, ss 335, 345 Corporations Regulations 2001 (Cth), r 1.0.07 Probate and Administration Act 1898 (NSW), ss 44, 61 Cases Cited: Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 Gillett v Nelson (No 2) [2014] NSWSC 580 Maddocks v DJE Constructions Pty Ltd [1982] HCA 17; 148 CLR 104 at 117 Massoud v NRMA Insurance Ltd (2005) 62 NSWLR 653 McCallum (aka Hain) v National Australia Bank Ltd [2000] NSWCA 218 Shepherd v Felt & Textiles of Australia Pty Ltd [1931] HCA 11; (1931) 45 CLR 359 TNT Building Trades Pty Limited v Benelong Developments Pty Limited (administrators appointed) [2012] NSWSC 766; 91 ACSR 17 Warren v Coombes [1979] HCA 9; 142 CLR 531 Category: Principal judgment Parties: Janine Ruth Gooley (Appellant) Motasea Pty Ltd (1st Respondent) Melville William Gooley (2nd Respondent) Representation: Counsel: M Cashion SC, R Davies (Appellant) S A Goodman (Respondents)