Williams v Bearing Traders Pty Ltd [2008] NSWSC 1358

Williams v Bearing Traders Pty Ltd [2008] NSWSC 1358

The Magistrate's conclusion that Mr Williams acted as a director of Minfox during the relevant period was open on the evidence. Although there was no direct evidence of his conduct during 31 October 2002 to 15 January 2003 and some statements in the Local Court reasons were slips or erroneous illustrations, the surrounding documentary evidence, his conduct before and after the period, the implausibility of his resignation explanation, and the presumption of continuance provided some evidence reasonably capable of supporting the inference. The asserted errors did not amount to material errors of law, so the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Appeal Against Local Court Decision Concerning Alleged Liability for Company Debts Incurred While Insolvent by a Person Said to Have Acted as a Director / Appeal to the Supreme Court of New South Wales From Orders of the Local Court Made on 6 May 2008
Outcome
Appeal dismissed.
Legal Topics
['de Facto Director' 'acting in the Position of a Director' 'insolvent Trading Liability' 'appeal on Question of Law' 'no Evidence Ground' 'mixed Fact and Law' 'presumption of Continuance']
['corporations Law' 'civil Procedure' 'insolvent Trading'] ['de Facto Director' 'acting in the Position of a Director' 'insolvent Trading Liability' 'appeal on Question of Law' 'no Evidence Ground' 'mixed Fact and Law' 'presumption of Continuance']

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Procedural Posture

Appeal Against Local Court Decision Concerning Alleged Liability for Company Debts Incurred While Insolvent by a Person Said to Have Acted as a Director / Appeal to the Supreme Court of New South Wales From Orders of the Local Court Made on 6 May 2008

Legal Issues

  1. 1 ['Whether there was no evidence that Gary Alexander Williams acted as a director of Minfox Pty Limited within the meaning of s 9 of the Corporations Act 2001 during the period 31 October 2002 to 15 January 2003.' 'Whether the Magistrate erred in finding that Mr Williams executed a credit agreement between Minfox and Bearing Traders on 20 November 2001 when there was no evidence that he had done so.' 'Whether leave should be granted to challenge findings of mixed fact and law concerning admissions and documents said to show Mr Williams acted as a director.' 'Whether errors or slips in the Local Court reasons infected the conclusion that Mr Williams acted as a director during the relevant period.']

Ratio Decidendi

The Magistrate's conclusion that Mr Williams acted as a director of Minfox during the relevant period was open on the evidence. Although there was no direct evidence of his conduct during 31 October 2002 to 15 January 2003 and some statements in the Local Court reasons were slips or erroneous illustrations, the surrounding documentary evidence, his conduct before and after the period, the implausibility of his resignation explanation, and the presumption of continuance provided some evidence reasonably capable of supporting the inference. The asserted errors did not amount to material errors of law, so the appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The plaintiff should pay Bearing Traders' costs of the appeal." 'In respect of the reserved costs on the Notice of Motion before Associate Justice Malpass, the plaintiff (Williams) should have 70% of the costs of the Motion.']