Hillig v Battaglia

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.