Rose v Tunstall [2017] NSWSC 797

Rose v Tunstall [2017] NSWSC 797

Grounds 1 and 2 raise questions of law as to interpretation and application of 'incurring a debt' under s 38 Associations Incorporation Act 1984 (NSW), and may proceed; grounds 3 to 9 raise only issues of fact or are frivolous and must be struck out.

Parties
Plaintiff: Wayne John Rose; First Defendant: Robert Tunstall as representative of the Estate of the late Arthur Tunstall; Second Defendant: Patrick Edward Hailwood; Third Defendant: Raymond James Birchell; Fourth Defendant: David Raymond Birchell; Fifth Defendant: Paul Cajentan Toweel
Jurisdiction
Australia
Judgment Date
21 June 2017
Procedural Posture
Appeal / Application to Strike Out Summons and Determine Grounds of Appeal
Outcome
Notice of Motion granted in part: grounds 3 to 9 in the Summons dismissed.
Legal Topics
Appeal on Questions of Law, Committee Member Liability, Costs Orders, Strike Out Applications, Interpretation of 'incurring a Debt'
Civil Procedure Associations Law Appeal on Questions of Law Committee Member Liability Costs Orders Strike Out Applications Interpretation of 'incurring a Debt'

Case Brief

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Parties

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

Procedural Posture

Appeal / Application to Strike Out Summons and Determine Grounds of Appeal

Legal Issues

  1. 1 Whether grounds of appeal raise questions of law or fact
  2. 2 Interpretation of 'incurring a debt' under Associations Incorporation Act 1984 (NSW)
  3. 3 Application of statutory provisions to facts found

Ratio Decidendi

Grounds 1 and 2 raise questions of law as to interpretation and application of 'incurring a debt' under s 38 Associations Incorporation Act 1984 (NSW), and may proceed; grounds 3 to 9 raise only issues of fact or are frivolous and must be struck out.

Court Disposition

Notice of Motion granted in part: grounds 3 to 9 in the Summons dismissed.

Orders

  • Order pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) that grounds 3 to 9 in the Summons be dismissed.
  • The Plaintiff is to file a Further Amended Summons consistent with order (1) within 14 days.