McColl JA at [1]; Macfarlan JA at [10]; Gleeson JA at [103]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
EQUITY - company director formulated and implemented plan to divert funding and business opportunities to new company - second appellant knowingly assisted him in dishonest and fraudulent design - whether causal connection between breaches of fiduciary duty and company's failure to obtain funding - whether loss of opportunity to obtain funding is itself a substantial financial loss - failure to obtain funding only causally related to financial loss where funding would have been put to profitable use - assessment of equitable compensation where plaintiff cannot adduce precise evidence of loss
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324
Case
[2014] NSWCA 324
Decision Date
CaseChat Overview and Summary
In *Ramsay v BigTinCan Pty Ltd*, the appellants, Ramsay and another party, appealed a decision concerning alleged breaches of fiduciary duty and dishonest assistance. The dispute arose from allegations that a company director formulated and implemented a plan to divert funding and business opportunities to a new company, and that the second appellant knowingly assisted in this dishonest and fraudulent design. The central question was whether there was a causal connection between these alleged breaches of fiduciary duty and the company's failure to obtain funding, and whether the loss of this opportunity constituted a substantial financial loss.
The court was required to determine whether the failure to obtain funding was causally related to financial loss, and specifically, whether such loss would only be established if the funding would have been put to profitable use. Furthermore, the court had to consider the assessment of equitable compensation in circumstances where the plaintiff could not adduce precise evidence of the loss suffered.
The court reasoned that a failure to obtain funding would only causally relate to financial loss if the funding would have been put to profitable use. The assessment of equitable compensation in cases where precise evidence of loss is unavailable requires careful consideration of the available evidence to establish the loss. Ultimately, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]