White Constructions (ACT) Pty Limited (in Liquidation) v White & 14 Ors

The appeal concerned challenges to factual findings made by a trial judge regarding allegations of breach of fiduciary duties and fraud by directors of White Constructions (ACT) Pty Limited (in Liquidation). The appellant, White Constructions (ACT) Pty Limited (in Liquidation), sought to overturn the trial judge's findings, arguing that the directors had acted fraudulently and in breach of their duties, causing loss to the company. The respondents were the directors and other parties involved.

The primary legal issues before the appellate court were whether the trial judge's factual findings were demonstrably wrong, specifically concerning the absence of fraud by the directors. The court also considered whether the appellant had properly established a claim for damages arising from breaches of fiduciary duties, and whether the company itself had sustained a financial loss. Further issues included the application of the rule in *Jones v Dunkel* concerning the failure to call relevant witnesses, and the potential for restitutionary relief, which had not been pursued at trial.

The court applied the principle from *Devries v Australian National Railways Commission* (1993) 177 CLR 472, holding that to challenge factual findings on appeal, the appellant must demonstrate that the findings were glaringly improbable, contrary to compelling inferences, or inconsistent with incontrovertible facts. The court found that the appellant had failed to establish this threshold. Regarding the failure to call witnesses, the court applied the rule in *Jones v Dunkel* (1959) 101 CLR 298, noting that the appellant provided no explanation for the omission, entitling the trial judge to draw adverse inferences. The court also noted that the claim for damages was not a claim for recovery of undue preferences or property under the Corporations Act, but rather a claim under general law for breaches of fiduciary duties. Crucially, the court found that the appellant had not proven that the company itself sustained the specific financial loss claimed. Furthermore, the court held that restitutionary relief could not be granted on appeal as it had not been properly raised at trial, and the court was unable to determine its practical effect or equitable basis.

The appeals were dismissed, and the appellant was ordered to pay the respondents' costs.