Hillig v Battaglia

Case [2018] NSWCA 67

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67
Hearing dates: 7 and 8 February 2018
Decision date: 10 April 2018
Before: Gleeson JA at [1]
Leeming JA at [131]
Emmett AJA at [132]
Decision:

(1)   Appeal allowed.

 

(2)   Set aside the judgment and orders below made on 17 March 2017.

 

(3)   Respondents to pay the appellants’ costs of the appeal.

 

(4)   Remit the proceedings to the Supreme Court for a new trial on all issues.

 (5)   Costs of the first trial be determined by the Court below as part of the costs of the new trial.
Catchwords:

APPEAL – new trial – whether substantial miscarriage – whether remittal of whole or part of proceedings

 

CORPORATIONS – directors and officers – where payments made by company to senior employee’s wife and their family company – whether employee caused the relevant payments to be made in breach of statutory and fiduciary duties owed to the company – whether the employee was a de facto director – whether a cogent commercial explanation for making relevant payments – whether payments related to employee’s remuneration package

EVIDENCE – documentary evidence – application to adduce further evidence on appeal – where evidence raises issues of credit – business records exception to hearsay rule – whether exclusion in s 69(3)(b) of the Evidence Act 1996 (NSW) applies – whether the evidence should be excluded on discretionary grounds under s 135 of the Evidence Act
Legislation Cited: Corporations Act 2001 (Cth), ss 9, 181, 182, 513C, 588FE(6A), 588FDA, 588FF, 1317DA, 1317E, 1317H
Evidence Act 1995 (NSW), ss 55, 59, 60, 69, 81, 82, 135, Dictionary
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122
Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26
Croucher v Cachia [2016] NSWCA 132
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; [2006] HCA 1
Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78
Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303
Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93
Pateman v Higgin (1957) 97 CLR 521; [1957] HCA 62
Shimokawa v Lewis [2009] NSWCA 266
Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343; [2001] NSWCA 381
Category:Principal judgment
Parties: Peter Hillig in his capacity as official liquidator of ACN 092 745 330 Pty Ltd (In Liquidation) (First Appellant)
ACN 092 745 330 Pty Ltd (in Liquidation) formerly known as SX Projects (NSW) Pty Ltd (Second Appellant)
Vince Bruno Battaglia (First Respondent)
Karen Lee Battaglia (Second Respondent)
Fellmane Pty Ltd (Third Respondent)
Representation:

Counsel:
Dr…

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Details
AGLC
Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) v Battaglia [2018] NSWCA 67
Case
[2018] NSWCA 67
Decision Date

CaseChat Overview and Summary

The appeal in *Hillig v Battaglia* concerned a dispute where payments made by a company to the wife and family company of a senior employee were challenged. The central question was whether the employee had caused these payments to be made in breach of his statutory and fiduciary duties to the company, and whether he could be considered a de facto director. The appeal was heard by Gleeson and Leeming JJA and Emmett AJA.

The court was required to determine whether the employee had breached his duties by causing the payments, whether a cogent commercial explanation existed for these payments, and if they were properly considered part of his remuneration package. Furthermore, the court considered an application to adduce further evidence on appeal, specifically relating to issues of credit and the admissibility of business records under the hearsay exceptions in the *Evidence Act 1996* (NSW), including the application of section 69(3)(b) and discretionary exclusion under section 135.

The Court allowed the appeal, setting aside the judgment and orders of the primary court. It found that a substantial miscarriage of justice had occurred, necessitating a new trial on all issues. The court reasoned that the issues surrounding the employee's duties, the commercial justification for the payments, and the admissibility of the evidence required a fresh determination. The respondents were ordered to pay the appellants' costs of the appeal, and the costs of the first trial were to be determined by the Supreme Court as part of the costs of the new trial.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the judgment and orders below made on 17 March 2017.

(3) Respondents to pay the appellants’ costs of the appeal.

(4) Remit the proceedings to the Supreme Court for a new trial on all issues.

(5) Costs of the first trial be determined by the Court below as part of the costs of the new trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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