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

Judgment

MACFARLAN JA: I agree with Leeming JA that, for the reasons he gives, the Court should make the orders that he proposes.

LEEMING JA: The primary judge dismissed Mr Boorer's claim after a four day trial in the last week of November 2012. Her Honour's reasons, promptly delivered on 6 December 2012, occupy 166 paragraphs over 44 pages. Her Honour resolved…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCA 100
Decision Date: 03 April 2014

CaseChat Overview and Summary

The appeal in *Boorer v HLB Mann Judd (NSW) Pty Ltd* concerned a claim by Mr Boorer against the respondent accounting firm. Mr Boorer alleged that HLB Mann Judd had acted negligently in lodging documents with the Australian Securities and Investments Commission (ASIC) which incorrectly stated that he had been appointed as a director and secretary of a company, despite him not having provided the requisite written consents. Mr Boorer further contended that ASIC's subsequent disqualification of him from managing corporations, based in part on these incorrect forms, caused him loss. The primary judge had found that Mr Boorer had instructed the accountant to lodge the forms without first obtaining written consents, and therefore found no breach of duty and no loss suffered by Mr Boorer.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that HLB Mann Judd had not breached its duty of care to Mr Boorer, and whether the primary judge erred in finding that Mr Boorer had suffered no loss. Mr Boorer also sought leave to amend his notice of appeal at the hearing.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that even if there had been a breach of duty by HLB Mann Judd, Mr Boorer had not established that he suffered any loss as a result of the lodgement of the incorrect forms. The Australian Administrative Tribunal (AAT) had imposed a period of disqualification on Mr Boorer for other deficiencies, and this disqualification was separate from the issue of the incorrectly lodged forms. Furthermore, the Court refused leave to amend the notice of appeal due to prejudice to the respondent and unexplained delay.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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