Savoy v Insurance and Care NSW [2020] NSWSC 133

Supreme Court New South Wales

Medium Neutral Citation: Savoy v Insurance and Care NSW [2020] NSWSC 133 Hearing dates: 19 February 2020 Date of orders: 27 February 2020 Decision date: 27 February 2020 Jurisdiction: Common Law Before: Basten J Decision: (1) Grant leave to the applicant, to the extent necessary, to extend ground (2) to allow her to challenge the application of Jones v Dunkel in relation to her failure to call her co-director and the company's accountant.

(2) Dismiss the summons filed on 27 June 2019.

(3) Order that the plaintiff pay the costs of the first defendant, Insurance and Care NSW, of the proceedings in this Court. Catchwords: CORPORATIONS – directors and officers – appointment of director – failure to obtain written consent to appointment – whether absence of written consent invalidated appointment – effect of Corporations Act 2001 (Cth), s 201D

EVIDENCE – admissions – civil proceedings – whether representation of one director about conduct of other director validly admitted – whether reasonably open to magistrate to find the representation was within authority or in furtherance of a common purpose – Evidence Act 1995 (NSW), s 87

EVIDENCE – presumptions – official documents and records – register maintained by the Australian Securities and Investments Commission – presumed prima facie evidentiary value of information in register – whether displaced by other evidence in proceedings – Corporations Act 2001 (Cth), s 1274B

EVIDENCE – relevance – inferences – whether magistrate erred at law in drawing adverse inference from a party's failure to call significant witnesses – application of Jones v Dunkel – whether any procedural unfairness in drawing inference Legislation Cited: Corporations Act 2001 (Cth), ss 9, 201D, 201G, 201H, 1274, 1274A, 1274B Evidence Act 1995 (NSW), ss 9, 57, 87 Local Court Act 2007 (NSW), ss 39, 40, 41 Supreme Court Act 1970 (NSW), s 75A Workers Compensation Act 1987 (NSW), ss 145, 145A, 154C; Pt 4, Div 6 Cases Cited: Australian Blue Metal Ltd v Hughes (1962) 79 WN (NSW) 498 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hawcroft v Jamieson [2017] NSWSC 1478 Hedges v NSW Harness Racing Club Ltd (1991) 5 ACSR 291 In the matter of Access MMS Pty Ltd [2012] NSWSC 1199 In the Matter of Whitsunday Clean Sands Pty Ltd [2017] NSWSC 1199 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kocic v Deputy Commissioner of Taxation [2011] NSWCA 322 Lewis Securities Ltd (In liq) v Carter [2018] NSWCA 118; (2018) 355 ALR 703 Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477 Re Duomatic Pty Ltd [1969] 2 Ch 365 Rose v Tunstall [2018] NSWCA 241 Sycotex Pty Ltd v Baseler (1994) 13 ACSR 766 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 657 World Avenue Pty Ltd v Tsunashima [2013] NSWSC 502 Texts Cited: JD Heydon, Cross on Evidence (LexisNexis, online edition, February 2020), [1215] Category: Principal judgment Parties: Eve Savoy (Plaintiff) Insurance and Care NSW (First Defendant) Robert Bradley McDonald (Second Defendant) Representation: Counsel: Mr P Barham (Plaintiff) Ms A Avery-Williams (First Defendant)