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)
Solicitors:
Crawford Ryan Lawyers Pty Ltd (Appellant)
Whites Lawyers (Respondents)

File Number(s): 2014/142708
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2014] NSWSC 69

Date of Decision:

14 February 2014

Before:

Black J

File Number(s):

2013/117486

GLEESON JA: I agree with Leeming JA.
LEEMING JA: The principal issue at trial was whether Ms Janine Ruth Gooley was one of two members in Motasea Pty Ltd, a company with substantial property holdings. The issue was litigious because neither side was able to tender (a) the share register, or (b) a share certificate, or (c) any signed memorandum of transfer, or (d) any evidence of a directors’ resolution in respect of a transfer, notwithstanding that for many years ASIC’s records showed Ms Gooley as one of two members of the company. Ms Gooley placed particular reliance on a return which had been lodged personally by her father, Mr Melville William Gooley, which stated that his daughter had become a shareholder. That was consistent with what Ms Gooley recalled her…

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: [2015] NSWCA 31
Decision Date: 02 March 2015

CaseChat Overview and Summary

The plaintiff, Gooley, sought declaratory relief against Motasea Pty Ltd concerning his membership in the private company. The central dispute revolved around proving Gooley's entitlement to shares, particularly given that the company's share register had been lost. The matter came before the Court of Appeal of New South Wales, comprising Gleeson and Leeming JJA and Bergin CJ in Eq.

The primary legal issues before the court were whether the plaintiff had discharged the onus of proving, on the balance of probabilities, that he was a member of the company. This involved determining the weight to be given to various pieces of evidence, including an ASIC return indicating a share transfer from his father, the father's unchallenged evidence of mistake regarding that transfer, the tax treatment of the purported transfer, and the role of the company's registered agent. The court also considered the effect of an unstamped transfer of shares.

The Court of Appeal affirmed the primary judge's decision, holding that the plaintiff had failed to discharge the burden of proof. The court reasoned that while an ASIC return suggested a transfer, the father's unchallenged evidence of mistake undermined its probative value. Furthermore, the failure to tender evidence regarding the tax treatment of the transfer, coupled with inferences available from the registered agent's role, did not sufficiently establish the plaintiff's membership. The court applied the principle that the onus rests on the party seeking a declaration to establish all necessary facts on the balance of probabilities.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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:	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) Solicitors: Crawford Ryan Lawyers Pty Ltd (Appellant) Whites Lawyers (Respondents)
File Number(s):	2014/142708
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2014] NSWSC 69 Date of Decision: 14 February 2014 Before: Black J File Number(s): 2013/117486