Gooley v Motasea Pty Ltd

Factual background

1. Most of the evidence was documentary, or else uncontroversial. Both Ms and Mr Gooley made affidavits which were read; neither was cross-examined (the latter on the basis that no adverse inference would be drawn from the fact that matters were not put to Mr Gooley in cross-examination).
2. Motasea was incorporated in December 1988 as a company with two fully paid ordinary shares. Those two shares were transferred to Ms Gooley's father and mother when the company was acquired from the firm which caused it to be incorporated.
3. Ms Gooley's mother Joyce suffered a stroke in April 1991, and was thereafter cared for, away from the family home, until her death on 22 February 2000. By a will dated 23 June 1990, Mrs Joyce Gooley gave to the trustee of the Gooley Family Trust all shares she possessed. However, probate was never obtained of her estate.
4. Mr Gooley gave evidence that in 1997 Motasea's then accountants, Ellice-Flint & Co, prepared a transfer of Mrs Joyce Gooley's share to her husband, a minute of meeting, and a new share certificate. His affidavit annexed unexecuted copies of those documents. He said that he was unaware of the location of the originals or any copies.
5. Ms Gooley gave evidence that in around 1999 her father told her that he intended to give Motasea to her, and that after her mother passed away the following year, he said words to the effect, "Your mother has died, I'm going to put Motasea in your name now." Her evidence was that she agreed, and was subsequently provided with papers to sign, which she did and returned to her father.
6. Mr Gooley did not contradict his daughter's evidence, but said that the conversations had occurred some 15 years previously and he did not recall them.
7. Ms Gooley also placed reliance upon the fact that in 1998 and 2000, her sisters Aleta and Melinda had shares in other companies controlled by their father, which owned real property, transferred to them. (The share transfers were not in evidence; Ms Gooley relied upon ASIC registers.) There was a deal of other testimonial and documentary evidence concerning Ms Gooley's involvement with Motasea, which was consistent with what the ASIC records had shown. That evidence was relevant to Ms Gooley's claims based on estoppel, whose rejection at trial was not contested on appeal; they are not recounted here.
8. It is the evidence directly bearing upon whether a Motasea share was transferred from Mr Gooley to his daughter in 2000 which is determinative of this appeal. It was common ground that no share register could be found many years later. It was common ground that no memorandum of transfer to Ms Gooley, or directors' resolution in respect of such transfer, or share certificate issued to Ms Gooley, could be found. Given the limited documentary records and the imperfect recollections of father and daughter, reliance was placed on documents which had been lodged with ASIC. (Prior to 1 July 1998, that body was known as the Australian Securities Commission, but what follows refers simply to ASIC.)
9. At all times, Motasea was required to lodge an annual return (most recently, by reason of s 319 of the Corporations Act 2001 (Cth), and formerly, ss 335 and 345 of the Corporations Law). The return could be lodged physically, but could, by reason of s 352 of the Corporations Act and its precursors be lodged electronically. Sometimes, Motasea's annual return was lodged physically (in which case, the copy in ASIC's records which was tendered contains the actual signature on the declarations and a dated lodgement stamp). Sometimes, Motasea's annual return was lodged electronically, by its registered agent (in which case, the copy in ASIC's records discloses an electronic lodgement time, and records the date on which the agent has stated the original was signed).
10. For many years the accounting firm Ellice-Flint & Co had acted for companies controlled by Mr Gooley including Motasea. The firm was Motasea's registered agent, and had agreed with ASIC that it could lodge documents on Motasea's behalf electronically. The 1996 annual return was completed in hand, and was physically signed by Mr Gooley and dated 16 October 1996; it records Mr and Mrs Gooley each owning one share. The 1997, 1998 and 1999 annual returns were lodged electronically (on 17 December 1997, 3 February 1999 and 3 April 2000 - this last date is significant) by Ellice-Flint & Co on Motasea's behalf, and recorded Mr Gooley as the owner of both Motasea shares. Each stated that Mr Gooley had signed a declaration (on a specified date prior to each being lodged) but a copy of the document actually signed by Mr Gooley was not tendered. The change in shareholding is consistent with the draft transfer, board minute and new share certificate prepared by the firm in November 1997.
11. Mr Cashion SC, who with Mr Davies appeared for Ms Gooley on appeal although not at trial, maintained that the "nub of the appeal" was the 2000 annual return. It was different from the returns of the three preceding years in at least three respects.
12. First, the 2000 annual return was lodged physically (like the 1996 return and unlike the returns for 1997, 1998 or 1999 which had been lodged electronically). Accordingly, the copy in evidence shows that it was completed by hand, was physically signed by Mr Gooley, was dated 27 November 2000, and stamped by ASIC on 23 January 2001.
13. Secondly, it contained handwritten amendments to the list of members, and it was common ground that the handwriting was that of Mr Gooley. Mr Gooley had altered the form of the document (generated by ASIC) so as to record that he now only held one share, rather than two, and described Ms Gooley as a new member, also holding one share. (To be clear, it should not be inferred that there was anything improper about the alteration per se; the document asked for any correcting information to be inserted.)
14. Mr Gooley gave evidence of this, which was admitted, although parts were treated as a submission: "I acknowledge that the entry in each return which has been made in writing appears to be my handwriting but the entry is not correct. I am not certain as to why I made the amendment at that time but this is the period in which I was changing accountants and this may have affected my intent. Otherwise, I cannot recall why the amendments were made by me."
15. Thirdly, the 2000 annual return coincides with a severing of the relationship between Motasea and Ellice-Flint & Co. For the first time (so far as appears from the evidence), rather than that firm's name and contact details being written at the top of the return, Mr Gooley wrote (in hand) his own name, address and contact numbers (the obligation to do so is now found in Corporations Regulations 2001 (Cth), r 1.0.07(g)). Consistently with this, the ASIC search for Motasea records that its registered office ceased to be the address of Ellice-Flint & Co on 6 April 2000, and became thereafter Mr Gooley's home address.
16. Neither party adduced testimonial evidence from Motasea's former accountants. Nor were the primary documents lodged with ASIC reflecting the change in registered office and cessation of Ellice-Flint & Co as registered agent tendered. However, the firm was served with a subpoena, and the response of one of its principals was tendered: "From my recollection, as of 1996 we no longer acted as accountants for Mr Melville William Gooley and his related entities. All records were sent to the new accountant looking after his affairs. I believe that to be Mr John Colley. The remaining records held by this office were destroyed on 4 February 2008."
17. It is plain that aspects of that response are inaccurate. Ellice-Flint & Co were acting for Motasea until at least early 2000. The letter did not differentiate between the "all records" which were sent to the new accountant, and the "remaining records" which were destroyed. The evidence tendered suggested that for some period Motasea may not have had a registered agent. Perhaps unusually, Mr Gooley did not ask his accountants to deal with all regulatory compliance including lodgements with ASIC. Mr Gooley's current accountant, and long-time business associate, Mr Colley, gave this evidence in cross-examination: "… Bill used to do all his own company secretarial work each year, lodging company annual returns or signing documents. That was something he didn't have us do. In fact, he had stopped doing that or I think he had taken over from the previous accountants and started doing it. He must have had some reason or dispute, I assume, for that and he did that. So I was not aware of what was there. I just took it at face value. The shareholders were Janine and Bill at that time, which I think seemed to be quite reasonable."
18. In Motasea's annual returns for 2001 and 2002, both father and daughter were recorded as shareholders. These documents were signed by Mr Gooley and lodged physically (as opposed to electronically); once again, they did not refer to a registered agent but gave the home address of Mr Gooley.

Reasoning of the primary judge

1. The primary judge concluded that Ms Gooley had not demonstrated her entitlement to a declaration that she was a member of Motasea. His Honour observed that not only did Mr Gooley deny that there was a transfer of shares, but also Ms Gooley did not give evidence of her executing a transfer (this is a reference to her generalised evidence that she signed papers given to her by her father). His Honour also considered that the absence of evidence of the payment of either stamp duty or capital gains tax in respect of the claimed transfers was highly significant.
2. The primary judge had directed the parties to provide supplementary submissions on stamp duty or tax payable in respect of a transfer of shares. Motasea and Mr Gooley submitted that although the "land rich" provisions in the stamp duties legislation had no application (because a "majority interest" in Motasea had not been acquired), ad valorem duty was payable, at the rate of 0.6% on the unencumbered value of the share. Further, a transfer might have had capital gains tax implications for Mr Gooley, the company having been incorporated in 1988, depending upon whether there was a capital gain and the extent to which there were offsetting capital losses. Ms Gooley did not dispute any aspect of those submissions.
3. Tax was a live issue at trial, and led to Mr Gooley's current accountant, answering a question directed to whether there were any share transfers which he could locate, saying: "But there had been no evidence, and I'm sure there wouldn't have been any actual share transfers. Because if there had been, there would have been stamp duty and capital gains tax issues and I know if there was any of that sort of possible cost, he would have baulked at that for a start."
4. The absence of evidence in respect of both claimed transfers (from Mrs Joyce Gooley to her husband, and from him to his daughter) was treated identically by the primary judge. He said that "the Court should be less ready to draw an inference that Joyce transferred her share to Bill where there is no evidence that any applicable stamp duty or capital gains tax was paid": at [18]. For the same reason, his Honour said that "the Court should be less ready to draw an inference that Bill transferred a share to Janine": at [20].
5. It will be seen that the primary judge adopted a restrained approach. His Honour did not find that stamp duty had not been paid on either transfer. His Honour did not make a positive finding about the existence of the share register, or the efficacy of the claimed inter vivos transfer of one share from Mrs Gooley to her husband. His Honour merely concluded that Ms Gooley had not discharged her burden of establishing facts sufficient to ground declaratory relief. That was, if I may say so, an entirely appropriate approach to adopt in the circumstances of this trial.

The parties' submissions on appeal and their resolution

1. Ms Gooley criticised one discrete aspect of the reasons of the primary judge which it is convenient to address immediately. His Honour had said at [15] that it was not possible to determine whether Ms Gooley's name had been entered on the register, if it existed, "because it is common ground that it has not been located". It was said that this disclosed error, because Ms Gooley could succeed on a case based on inferences. It may be accepted that Ms Gooley could succeed even if the share register could not be located: it was merely necessary for her to establish that she had been entered as a member, and it was open for her to rely on inferences in order to do so: see for example Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506. However, Ms Gooley's criticism is unfounded. Read in their context, his Honour was merely indicating that it was not possible definitively to determine whether Ms Gooley was or was not a member. The balance of his Honour's reasons is inconsistent with an approach which denied the possibility of success through the Court being satisfied inferentially.
2. The respondents sought to defend the decision of the primary judge essentially for the reasons his Honour had given: the absence of any evidence of appropriate tax treatment of the transfer to Ms Gooley, the vagueness of Ms Gooley's recollection, and the fact that Mr Gooley's evidence was unchallenged.
3. The respondents also pointed to the evidentiary difficulties surrounding the inter vivos transfer of Mrs Joyce Gooley's share to Mr Gooley, in addition to those surrounding the claimed transfer from father to daughter. If she had failed to transfer her share in Motasea during her lifetime, it follows that the share is presently vested in the NSW Trustee: Probate and Administration Act 1898 (NSW), s 61, although upon the grant of probate, her representative will, as from the date of death, have title to the share: see s 44.
4. Ms Gooley submitted, correctly, that it was not necessary to address whether there had been an effective inter vivos transfer of her mother's share. On any view, her father had at all times owned at least one Motasea share. What mattered was whether it should be inferred that her father had transferred one share to her, in accordance with the return he had personally completed and sent to ASIC. However, Ms Gooley's primary position was that there had been an effective transfer from mother to father, in November 1997, as was corroborated by the draft corporate documents and the return lodged to ASIC. The November 1997 documents, although only available in draft, suggested that the accounting firm was well able to bring into existence documents to reflect the instructions of Mr and Mrs Gooley. The same inference should be drawn, it was submitted, by reference to the 2000 annual return, even though the documents necessary to effect the transfer from father to daughter could not be located.
5. The position in relation to capital gains tax is somewhat equivocal. It was not suggested that Ms Gooley was personally liable to any capital gains tax liability, or had access to documents recording the tax treatment of the transfer. Likewise, if there was an inter vivos transfer of Mrs Gooley's share to her husband, once again, the stamp duty consequences of that transfer were not necessarily something of which Ms Gooley would be aware (indeed, Mr Gooley was better placed to advise whether and if so how tax had been paid). However, there was no question but that stamp duty was payable on any transfer to Ms Gooley, and payable by Ms Gooley (that is not to say that her liability to do so might not have been discharged in some other way).
6. There can be no doubt that if Ms Gooley had adduced direct or secondary evidence of the taxation treatment of her own, or her father's, or Motasea's financial affairs which was consistent with the payment of ad valorem duty on the transfer of a share to her, that would be powerful evidence supporting an inference that all other aspects of the transaction (which were internal to the company and which involved no material cost and no great formality) had been validly performed. For example, if stamp duty had been demonstrated to have been paid, and especially if the duty was substantial, it would support the inference that the essentially formal and internal steps to effect registration of Ms Gooley's shareholding had occurred. Moreover, the obligation to pay stamp duty on the claimed transfer from her father to her gave rise to questions which were squarely within the knowledge of Ms Gooley, such that Blatch v Archer considerations apply.
7. However, any failure to pay stamp duty does not deny all effect to the transfers, at least prospectively from the time outstanding duty was paid: see Shepherd v Felt & Textiles of Australia Pty Ltd [1931] HCA 11; (1931) 45 CLR 359, McCallum (aka Hain) v National Australia Bank Ltd [2000] NSWCA 218 and Gillett v Nelson (No 2) [2014] NSWSC 580 at [115] (there are conflicting decisions on the precise legal effect of an unstamped document, as to which see TNT Building Trades Pty Limited v Benelong Developments Pty Limited (administrators appointed) [2012] NSWSC 766; 91 ACSR 17 at [18]; it is not necessary to say anything about the issue, save that counsel acknowledged that his client, if successful, might be subject to an obligation to pay the outstanding duty). Likewise, to the extent that the transfers gave rise to capital gains tax obligations, any failure to declare and pay the tax (to the extent there was any such failure) does not of itself render the transactions ineffective.
8. Accordingly, the primary judge was correct to regard the absence of tax treatment of the claimed transfers as relevant but not determinative. Ultimately, counsel for Ms Gooley conceded, properly, that it was open to the primary judge to rely upon Ms Gooley's failure to address this and to rely upon secondary evidence as to her father's attitude to stamp duty, in support of the conclusion that Ms Gooley had failed to demonstrate that a memorandum of transfer had been executed.
9. However, it was said that those considerations did not displace the inference which should properly have been drawn from the matters pointed to in her favour: essentially, the deliberate and contemporaneous statement by Mr Gooley in Motasea's 2000 annual return, being a formal document sent to ASIC, his statements to her and the transfers of shares in other companies at around the same time to her sisters.
10. It was essential for Ms Gooley to establish that there was a legally effective transfer of one share of Motasea from her father to herself. If that occurred, then either it occurred with the assistance of accountants, or it did not.
11. If the transfer occurred without the assistance of accountants, then it was necessary for Ms Gooley to persuade the primary judge to the civil standard that Mr Gooley (who had personally completed Motasea's annual return to ASIC) had caused his daughter's name to be recorded in the share register. If it had been done regularly, there would also have been brought into existence and executed a memorandum of transfer, a minute recording Motasea's board's approval of the transfer, and the issue of a share certificate.
12. A number of considerations told against that series of inferences. The first was that Mr Gooley denied it. His unchallenged evidence was: "To my knowledge there has never been any meeting, share transfer, allotment of shares, transmission of shares, minute or resolution evidencing any issue, allotment, transfer or transmission of any shares in Motasea to Janine Ruth Gooley."
13. Ms Gooley submitted, correctly, that the events took place many years previously, and Mr Gooley's memory might be faulty. That is so. However, it would be one thing for Mr Gooley to have forgotten signing some documents prepared by Motasea's accountants. It would be quite another for him to have forgotten that he had himself personally altered the register which he had, it is to be presumed, obtained from Motasea's accountants.
14. What of the other formal documents, which, on this scenario, Mr Gooley would also have prepared himself? They would include a memorandum of transfer, a board resolution and a share certificate. It was never suggested that he had given a share certificate to his daughter. That is not fatal to her having become a member, but it presents a difficulty when it is appreciated that Ms Gooley's case required the court to infer that the wholly internal act of completing the share register had occurred, but something much more substantial - the issuing of a share certificate - had not taken place.
15. In short, Mr Gooley unequivocally denied himself having caused Motasea to transfer a share to his daughter. He was not cross-examined on his denial. Ms Gooley did not provide direct evidence that she had signed a transfer or had received a share certificate. In those circumstances, it is easy to see why Ms Gooley's primary case was that the transfer had occurred with the assistance of Ellice-Flint & Co.
16. However, there are also improbable aspects in this scenario. Some have to do with timing. The nature and duration of the involvement of Ellice-Flint & Co was not entirely clear on the evidence, but as noted above, documents lodged with ASIC recorded that the registered office of Motasea had been the offices of that firm until 6 April 2000; thereafter the registered office became Mr Gooley's residential address.
17. It may readily be accepted that there once was a share register, when the company was acquired by Mr and Mrs Gooley. It is an offence of strict liability for the company not to set up and maintain a share register: Corporations Act 2001 (Cth), s 168. It is difficult to imagine purchasing a shelf company from an accounting firm without at the same time acquiring its register and other mandatory documents.
18. However, it may also readily be inferred that Ellice-Flint & Co would have sent the corporate records of Motasea to Mr Gooley in around April 2000. Indeed, it would not be lawful for Ellice-Flint & Co to retain possession of the share register after Motasea's registered office moved and the firm ceased to do work on its behalf: Corporations Law, s 172(1) (as in force at the relevant time; see now Corporations Act 2001 (Cth) s 172(1)).
19. What is more, the "document list" contained in ASIC's "Current & Historical Organisation Extract" for Motasea recorded that the 1999 annual return was lodged on 3 April 2000 and the notification of a change in registered office was lodged on 31 March 2000. The 2000 annual return (with Mr Gooley's handwritten changes showing Ms Gooley as a member) was lodged on 1 December 2000 (it is document 00366842K). As Mr Goodman submitted on behalf of Mr Gooley and Motasea, the delay of eight months made it unlikely that Ellice-Flint & Co had anything to do with the preparation of the 2000 annual return.
20. Against this, Ms Gooley pointed to the fact that (again according to ASIC records) Ellice-Flint & Co had continued as the registered office of another of Mr Gooley's companies (Dama Enterprises Pty Ltd), until 28 November 2000. I do not regard that as supportive of Ms Gooley's contentions. The critical question, for a consideration of the appropriate inferences to draw, is when Ellice-Flint & Co ceased to act for Motasea.
21. Another improbability in Ms Gooley's case may be seen from the fact that the memorandum of transfer, board minute and share certificate relating to the inter vivos transfer of Mrs Gooley's share could still be found many years later, although not in a form which had been executed. The existence of those documents, and the absence of corresponding documents for a transfer from Mr Gooley to his daughter, once again suggests that none were prepared in respect of the latter transaction (for why were drafts of the 1997 documents preserved, but not those prepared three years later?).
22. The foregoing considerations go beyond what is expressed in the reasons of the primary judge. They reflect the fact that, in substance, the appeal was argued as if it were a hearing de novo. The fact that the primary judge enjoyed a relatively limited advantage doubtless encouraged both parties to take that course: the most probative evidence was documentary, there was limited conflict in the testimonial evidence, and neither father nor daughter was cross-examined.
23. Precisely how much weight in those circumstances is to be given to the decision of the primary judge is, perhaps, a question which is not free from difficulty. This Court will, in accordance with Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551, decide the proper inference to be drawn from the primary facts, but only after giving respect and weight to the decision of the primary judge. I am conscious that the primary judge had the benefit of considering the evidence and submissions in relation to Ms Gooley's estoppel claims, and of seeing Mr Colley give evidence and being cross-examined. His Honour was in that respect better placed than this Court to evaluate some matters relevant to the issue of Ms Gooley's membership (such as the extent to which Motasea's records were well kept and the likelihood of Mr Gooley making a mistake for reasons he could no longer explain).
24. It is not necessary to take that question any further. Even if the advantages enjoyed by the primary judge are wholly disregarded, I agree with his Honour's conclusion that Ms Gooley had not discharged the onus which she bore to obtain relief. Accepting that what her father wrote on the 2000 annual return reflected his understanding at the time, Ms Gooley's case faced difficulties by reason of his uncontradicted evidence that (a) he had been mistaken, and (b) no documents had been brought into existence to reflect the transfer of a share to her. Ms Gooley could not herself give evidence of signing a transfer or receiving a share certificate. Her reliance on documentation being prepared by Motasea's former accountants must be discounted in light of the facts that (a) the firm ceased to act for Motasea at the relevant period of time and (b) there is no explanation for the retention of documents relating to the transfer from her mother and the failure to retain documents relating to the transfer from her father. The fact that ASIC records disclosed shares in other companies being transferred to her sisters at around this time is insufficient to displace the countervailing inferences from the foregoing.
25. In short, given the conflicting recollections, the imprecision of her own evidence, and the improbabilities of an entry in the share register having been made in light of what may be inferred from the evidence adduced, Ms Gooley was correctly held not to have discharged the onus of proof borne by her.

Conclusion and orders

1. Although it was outside the notice of appeal, the parties exchanged submissions on a discrete topic: whether Ms Gooley had validly been appointed a director of Motasea. It is not necessary to address the evidence underlying this issue (which is addressed in detail at [31]-[45] by the primary judge). It was common ground that only if Ms Gooley were a shareholder might she continue as a director (for if there had been no effective inter vivos transfer of her mother's share, then she was not validly appointed in 2012, and if her father was the sole member, then she was removed by a sole member resolution passed by Mr Gooley in 2013). For the reasons already given, Ms Gooley must fail on this issue.
2. For those reasons I propose that the appeal be dismissed, with costs.
3. BERGIN CJ in EQ: I agree with Leeming JA.

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