Rose v Tunstall (No 3) [2018] NSWSC 172

Supreme Court New South Wales

Medium Neutral Citation: Rose v Tunstall (No 3) [2018] NSWSC 172 Hearing dates: 7 February 2018 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Common Law Before: Schmidt J Decision: (1) The appeal is dismissed.

(2) All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: APPEAL AND NEW TRIAL – appeal from decision of Local Court Magistrate under ss 37 and 38 of Associations Incorporations Act 1984 (NSW) – whether Magistrate erred in finding a debt was not incurred following the making of a costs order against the Defendants in a prior trial – proper construction of incurring a debt – whether Magistrate considered whether incurring the debt would give Defendants reasonable grounds to expect that the Association would not be able pay all of its debts as and when they became due – whether Defendants had reasonable cause to expect that the Association would be able to pay debts as and when they became due – appeal dismissed Legislation Cited: Associations Incorporations Act 1984 (NSW) Civil Procedure Act 2005 (NSW) Companies (New South Wales) Code Corporations Act 2001 (Cth) District Courts Act 1912 (NSW) Evidence Act 1995 (NSW) Legal Profession Act 2004 (NSW) Limitations Act 1969 (NSW) Local Court Act 2007 (NSW) Supreme Court 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ASIC v Edwards [2005] NSWSC 831; 220 ALR 175 Australian Securities and Investments Commission v Rich [2005] NSWSC 417; 216 ALR 320 Commissioner of State Taxation (WA) v Pollock (1993) 11 WAR 64 Commonwealth Bank of Australia v Butterell (1994) 35 NSWLR 64 Crisp & Gunn Co-operative Ltd v Hobart Corporation (1963) 110 CLR 538; [1963] HCA 55 Edwards v Australian Securities and Investments Commission [2009] NSWCA 424; 264 ALR 723 Field v New South Wales Greyhound Breeders, Owners & Trainers Association Limited [1972] 2 NSWLR 948 Hawkins v Bank of China (1992) 26 NSWLR 562 Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 Lewis (a liquidator of Doran Constructions Pty Ltd) v Doran [2005] NSWCA 243; 219 ALR 555 Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Oshlack v Richmond River Council (1998) 193 CLR 72; [1992] HCA 11 Powell v Fryer [2001] SASC 59; 159 FLR 433 Rema Industries and Services Pty Ltd v Coad [1992] FCA 118; 107 ALR 374 Rose v Boxing NSW Inc [2007] NSWSC 20 Rose v Boxing NSW Inc [2007] NSWSC 256 Rose v Tunstall [2017] NSWSC 797 Rose v Tunstall (No 2) [2017] NSWSC 1425 Sandell v Porter (1966) 115 CLR 666; [1966] HCA 28 Sheahan v Hertz Australia Pty Ltd (1995) 16 ACSR 765 Shepherd v Australia and New Zealand Banking Group Ltd (1996) 20 ACSR 81 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Southern Cross Airports v Chief Commissioner of State Revenue [2011] NSWSC 349; ATR 612 Southern Cross Interiors Pty Ltd (in liquidation) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213; [2001] NSWSC 621 Spain v The Union Steamship Company of New Zealand Ltd (1923) 32 CLR 138; [1923] HCA 21 Standard Chartered Bank of Australia Ltd v Antico (Nos 1 and 2) (1995) 38 NSWLR 290 State Government Insurance Corporation v Pollock (1993) 11 ACLC 839 Thomas v State of New South Wales [2007] NSWSC 160 Tourprint International Pty Ltd (in liq) v Bott [1999] NSWSC 581; 32 ACSR 201 Waters v PC Henderson (Aust) Pty Ltd (1994) 254 ALR 328; [1994] NSWCA 338 Wayne John Rose v Boxing NSW Incorporated & Anor (Supreme Court (NSW) 27 June 2006, unrep) Wayne John Rose v Estate of Arthur Tunstall & Ors (Local Court (NSW) 11 April 2017, unrep) Category: Principal judgment 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: M Heraghty (Plaintiff) JG Simpkins (Defendants)