(1) Order pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) that grounds 3 to 9 in the Summons be dismissed.
(2) The Plaintiff is to file a Further Amended Summons consistent with order (1) within 14 days.
Catchwords:
APPEAL AND NEW TRIAL – appeal from magistrate – on questions of law – application to strike out summons – whether grounds identify errors of law – claim against committee members of an incorporated association – whether the association incurred debts when unable to pay all its debts – association defended legal proceedings brought against it - whether being subjected to costs orders amounted to incurring a debt - whether incurring a debt raises a question of law
Wayne John Rose (Plaintiff) Robert Tunstall as representative of the Estate of the late Arthur Tunstall (First Defendant) Patrick Edward Hailwood (Second Defendant) Raymond James Birchell (Third Defendant) David Raymond Birchell (Fourth Defendant) Paul Cajentan Toweel (Fifth Defendant)
Representation:
Counsel: K Ryan (Plaintiff) J G Simpkins (Defendants)
Solicitors: Lawrence J Myers (Plaintiff) Carneys Lawyers (Defendants)
File Number(s):
2017/139138
Judgment
On 11 April 2017 her Honour Magistrate Atkinson LCM in the Local Court (Downing Centre) dismissed a claim brought by the present Plaintiff where he claimed a judgment of $78,383.38 against the Defendants pursuant to ss 37 and 38 of the Associations Incorporation Act 1984 (NSW) (the AIC). The Plaintiff thereafter filed a summons in this Court on 9 May 2017 appealing from that judgment on 9 grounds of appeal said to be grounds demonstrating errors of law.
On 15 May 2017 the Defendants by Notice of Motion filed that day sought an order dismissing the summons as incompetent pursuant to r 50.16A Uniform Civil Procedure Rules 2005 (NSW). In the alternative, the Defendants sought summary dismissal under r 13.4 UCPR. The basis of the relief sought in the Notice of Motion was that none of the grounds of appeal identified errors of law. Rather, they demonstrated, if anything, errors of fact only. It was said further that some of the grounds in any event were frivolous within the meaning of…
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
AGLC
Rose v Tunstall [2017] NSWSC 797
Case
[2017] NSWSC 797
Decision Date
CaseChat Overview and Summary
The parties involved in this appeal were Rose and Tunstall, with Tunstall being the first respondent and other parties subsequently joined. The dispute arose from a claim against the committee members of an incorporated association, where the association had allegedly incurred debts while being unable to pay all its debts. The case was first heard in the Magistrates' Court of Victoria, and an appeal has been brought to the Supreme Court of Victoria on questions of law.
The central legal issues before the court were whether the grounds for appeal identified errors of law and whether the association had indeed incurred debts when it was unable to pay all its debts. Specifically, the court needed to determine if being subjected to costs orders in legal proceedings brought against the association constituted incurring a debt. Furthermore, the court had to decide whether incurring a debt in this context raised a question of law.
The court examined the grounds for appeal and determined that they did not identify any errors of law. It was held that being subjected to costs orders in legal proceedings did not equate to incurring a debt, as the association had not actually paid the costs. Moreover, the court found that the issue of whether incurring a debt raised a question of law was not applicable in this case, as it was a matter of fact rather than law. Consequently, the appeal was dismissed, and the application to strike out the summons was denied.