Peter James Callaughan v Icognition Pty Ltd

PETER JAMES CALLAUGHAN v ICOGNITION PTY LTD
[2013] ACTCA 2 (15 January 2013)

APPEAL AND NEW TRIAL – in general and right of appeal – where correctness of trial judge’s conclusion regarding liability for loan repayments not challenged – appeal dismissed.

APPEAL AND NEW TRIAL – jurisdiction, practice and procedure – natural justice – appeal against decision of trial judge not to grant leave to call witness after case closed – where witness testimony not directed to the critical issue – no denial of natural justice – appeal dismissed.

Corporations Act 2001 (Cth), pt 2B.3

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 5 – 2012
No. SC 174 of 2008

Judges:         Refshauge, Penfold and Buchanan JJ
Court of Appeal of the Australian Capital Territory
Date:            15 January 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 5 – 2012
  )          No. SC 174 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES CALLAUGHAN

Appellant

AND:ICOGNITION PTY LTD

Respondent

ORDER

Judges:  Refshauge, Penfold and Buchanan JJ
Date:  15 January 2013 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 5 – 2012
  )          No. SC 174 of 2008
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER JAMES CALLAUGHAN

Appellant

AND:ICOGNITION PTY LTD

Respondent

Judges:  Refshauge, Penfold and Buchanan JJ
Date:  15 January 2013 
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. The present appeal is nominally against an order made on 10 February 2012 that the appellant pay the respondent $557,990.20.  That sum represented the amount in loans which was liable to be repaid by the appellant to the respondent, together with interest on those loans.  The matters sought to be agitated by the appellant on the present appeal could have no bearing upon his liability to make the payment ordered by the trial judge.  Accordingly, the appeal should be dismissed for that reason alone.  It should also be dismissed because it reveals no basis for legitimate criticism of the trial judge.

BACKGROUND

1. The appellant registered the respondent on 19 March 2003.  The appellant and his wife were the initial directors.  At the time the appellant was working at a company known as Alphawest Pty Limited (earlier CVSI Pty Limited).  At that time Joe Mammoliti and Nigel Carruthers-Taylor were also working at Alphawest.  They, like the appellant, had begun to work at CVSI in or around 1997.

1. Subsequently, on 15 November 2003, Mr Mammoliti became a director of the respondent, having left Alphawest in June 2003.  Mr Carruthers-Taylor left Alphawest in May 2004 and on 6 July 2004 he also became a director of the respondent.  On that date the appellant’s wife ceased to be a director.  The appellant…