Rose v Tunstall

[2018] NSWCA 241

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Rose v Tunstall [2018] NSWCA 241

Hearing dates:

9 October 2018

Date of orders:

25 October 2018

Decision date:

25 October 2018

Before:

Basten JA at [1];
Payne JA at [2];
Simpson AJA at [39]

Decision:

(1)   Leave to appeal refused.

 

(2)   Leave to cross-appeal refused.

 (3)   No order as to costs in this Court.

Catchwords:

APPEALS – appeal on a question of law – Local Court Act 2007, ss 39, 41 – whether findings of fact can be made on appeal – Supreme Court Act 1970, s 75A

 

APPEALS – application for leave to appeal - amount in dispute under statutory threshold – no appeal as of right - Supreme Court Act 1970, s 101 – application refused – no issue of principle, question of general importance or a reasonably clear injustice

COSTS – appeals – legal costs disproportionate to potential outcome – Civil Procedure Act 2005, s 60

Legislation Cited:

Associations Incorporation Act 1984 (NSW), s 38
Associations Incorporation Act 2009 (NSW)
Civil Procedure Act 2005 (NSW), s 60
Legal Profession Act 2004 (NSW)
Local Court Act 2007 (NSW), ss 39, 40, 41
Supreme Court Act 1970 (NSW) ss 75A, 101

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2009) 74 NSWLR 481; [2008] NSWCA 187
Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207
Lesley-Swan v Owners SP 32735 [2013] NSWSC 1635
North Broken Hill Ltd v Tumes [1999] NSWCA 309; (1999) 18 NSWCCR 412
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230; [2007] NSWCA 300
The Age Company Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
World Avenue Pty Ltd v Tsunashima [2013] NSWSC 502

Category:

Principal judgment

Parties:

Wayne John Rose (Applicant and Cross-Respondent)
Robert Tunstall as Representative of the Estate of Arthur Tunstall (First Respondent and Cross-Applicant)
Patrick Edward Hailwood (Second Respondent and Cross-Applicant)
Raymond James Birchell (Third Respondent and Cross-Applicant)
Paul Cajentan Toweel (Fourth Respondent)

Representation:

Counsel:
D F Jackson QC / J C Conde (Applicant and Cross-Respondent)
E Peden / J G Simpkins (Respondents and Cross-Applicants)

  Solicitors:
Lawrence J Myers (Applicant and Cross-Respondent)
Vector Legal (Respondents and Cross-Applicants)

File Number(s):

2018/00078057

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

[2018] NSWSC 172

Date of Decision:

23 February 2018

Before:

Schmidt J

File Number(s):

2017/139138

Headnote

[This headnote is not to be read as part of the judgment]

In 2015 the applicant commenced proceedings in the Local Court against the respondents, members of the executive committee of Boxing NSW Inc., a former incorporated association, claiming that they were liable under Associations Incorporation Act 1984 (NSW), s 38(1) for a costs order made against the association prior to the cancellation of its registration in 2010.…