Rose v Tunstall [2017] NSWSC 797

Supreme Court New South Wales

Medium Neutral Citation: Rose v Tunstall [2017] NSWSC 797 Hearing dates: 6 June 2017 Date of orders: 21 June 2017 Decision date: 21 June 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Order pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) that grounds 3 to 9 in the Summons be dismissed.

(2) The Plaintiff is to file a Further Amended Summons consistent with order (1) within 14 days. Catchwords: APPEAL AND NEW TRIAL – appeal from magistrate – on questions of law – application to strike out summons – whether grounds identify errors of law – claim against committee members of an incorporated association – whether the association incurred debts when unable to pay all its debts – association defended legal proceedings brought against it - whether being subjected to costs orders amounted to incurring a debt - whether incurring a debt raises a question of law Legislation Cited: Associations Incorporation Act 1984 (NSW) Companies Act 1961 (NSW) Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Crown Insurance Services Ltd (2012) 207 FCR 247; [2012] FCAFC 153 Dunn v Shapowloff (1978) 3 ACLR 775 General Steel Industries Inc v Commissioner for Railways (NSW) (1965) 112 CLR 125 Hawkins v Bank of China (1992) 26 NSWLR 562 Macquarie Bank v Fociri (1992) 27 NSWLR 203 R L & D Investments P/L v Bisby [2002] NSWSC 1082 Category: Procedural and other rulings Parties: Wayne John Rose (Plaintiff) Robert Tunstall as representative of the Estate of the late Arthur Tunstall (First Defendant) Patrick Edward Hailwood (Second Defendant) Raymond James Birchell (Third Defendant) David Raymond Birchell (Fourth Defendant) Paul Cajentan Toweel (Fifth Defendant) Representation: Counsel: K Ryan (Plaintiff) J G Simpkins (Defendants)