Natcomp Technology Australia Pty Ltd v Graiche

[2001] NSWCA 120

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Natcomp Technology Australia Pty Limited v Graiche [2001]  NSWCA 120

FILE NUMBER(S):
40063/00

HEARING DATE(S): 30 March 2001

JUDGMENT DATE:    30/04/2001

PARTIES:
Natcomp Technology Australia Pty Limited (Appellant)
Joseph Graiche (Respondent)

JUDGMENT OF:        Spigelman CJ Stein JA Heydon JA   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):             DC 3626/97

LOWER COURT JUDICIAL OFFICER:        Hogan ADCJ

COUNSEL:
B A J Coles QC/T D Blackburn (Appellant)
R B S MacFarlan QC/M Wigney (Respondent)

SOLICITORS:
Gray & Perkins (Appellant)
P A Somerset & Co (Respondent)

CATCHWORDS:
COMMERCIAL LAW - director's duties - s 60(1) The Corporations Law - whether a de facto director or a shadow director - extent of involvement in business necessary to be deemed a director - ND

LEGISLATION CITED:
The Corporations Law (NSW)
Fair Trading Act 1987 (NSW)

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA         40063/00
               DC      3626/97

SPIGELMAN CJ
               STEIN JA

HEYDON JA

Monday, 30 April 2001

NATCOMP TECHNOLOGY AUSTRALIA PTY LIMITED v Joseph GRAICHE

Facts:

The appellant company supplied computer equipment to Amtech Industries Pty Ltd (Amtech), a company that went into liquidation in late 1996. At first instance, the appellant obtained default judgment against the appointed directors of Amtech, Messrs Le Gentil and Serra. The respondent, who was not an appointed director of Amtech, had made a series of statements, and permitted statements to be made in his presence, which suggested a close connection between himself and Amtech. The appellant appeals the decision of Hogan ADCJ that the respondent was neither a ‘de facto’ or a ‘shadow’ director under s60(1) of the Corporations Law. 

Held:

Per Spigelman CJ, Stein JA and Heydon JA:

That the evidence placed before the trial judge was inadequate to establish that the respondent was either a de facto or a shadow director of Amtech. Accordingly, his Honour was correct to dismiss the proceedings against the respondent.

Orders:

Appeal dismissed with costs.

oOo

IN THE SUPREME COURT  

OF NEW SOUTH WALES

COURT OF APPEAL

CA         40063/00
               DC      3626/97

SPIGELMAN CJ
               STEIN JA

HEYDON JA

Monday, 30 April 2001

NATCOMP TECHNOLOGY AUSTRALIA PTY LIMITED v Joseph GRAICHE
JUDGMENT

1. SPIGELMAN CJ:               I agree with Stein JA.

2. STEIN JA: This is an appeal from a decision of Hogan ADCJ. At first instance it was alleged that the respondent, Dr Joseph Graiche, was a ‘de facto’ or ‘shadow’ director of Amtech Industries Pty Ltd (Amtech) under s 60(1) of the Corporations Law. The evidence failed to satisfy his Honour on either basis. The appellant (Natcomp Technology Australia Pty Ltd) seeks to recover the price of goods sold and delivered by it in 1996 to Amtech, from the respondent personally. Amtech went into liquidation in late 1996.  In the subject proceedings, the appellant obtained default judgment against the appointed directors of Amtech, Mr Patrick Le Gentil and Mr Jose Bernardino Lopes Serra.  The appellant unsuccessfully sought relief against the respondent under the Fair Trading Act 1987