Rose v Tunstall (No 3) [2018] NSWSC 172

Rose v Tunstall (No 3) [2018] NSWSC 172

The Association did incur a debt to Mr Rose when the costs order was made; however, at the relevant time there were no reasonable grounds to expect it could not pay its debts. Mr Rose failed to establish personal liability of committee members under s 38, and the evidence did not establish insolvency on balance of probabilities. The Phillips' report was correctly excluded as not a business record; proceedings were within time as s 37 trigger was cancellation of incorporation.

Jurisdiction
Australia
Judgment Date
23 February 2018
Procedural Posture
Appeal From Local Court Decision / Final Judgment
Outcome
Appeal dismissed
Legal Topics
['personal Liability of Committee Members' 'costs Orders' 'incorporated Associations' 'limitation Periods' 'business Records Admissibility']
['corporate/associations Law' 'civil Procedure'] ['personal Liability of Committee Members' 'costs Orders' 'incorporated Associations' 'limitation Periods' 'business Records Admissibility']

Case Brief

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Procedural Posture

Appeal From Local Court Decision / Final Judgment

Legal Issues

  1. 1 ['Did Boxing NSW Inc incur a debt to Mr Rose by operation of costs orders?' 'Were committee members personally liable under ss 37 and 38 of Associations Incorporations Act 1984 (NSW)?' 'Were reasonable grounds established for insolvency at relevant times?' 'Was business records evidence admissible under s 69 of Evidence Act 1995 (NSW)?' 'Was the claim brought within time under Limitations Act 1969 (NSW)?']

Ratio Decidendi

The Association did incur a debt to Mr Rose when the costs order was made; however, at the relevant time there were no reasonable grounds to expect it could not pay its debts. Mr Rose failed to establish personal liability of committee members under s 38, and the evidence did not establish insolvency on balance of probabilities. The Phillips' report was correctly excluded as not a business record; proceedings were within time as s 37 trigger was cancellation of incorporation.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.' 'All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.']