Sullivan v Trilogy Funds Management Limited [2017] FCAFC 153

FEDERAL COURT OF AUSTRALIA

Sullivan v Trilogy Funds Management Limited [2017] FCAFC 153 Appeal from: Trilogy Funds Management Limited v Sullivan (No 2) [2015] FCA 1452

File number: NSD 379 of 2016

Judges: ALLSOP CJ, FARRELL AND GLEESON JJ

Date of judgment: 25 September 2017

Catchwords: APPEAL AND NEW TRIAL – procedural fairness – whether miscarriage of justice has occurred – whether findings made against appellants that they did not have an opportunity to address – where findings made against appellants that went beyond the pleaded case – where ultimate findings can be supported without reference to findings involving procedural unfairness – no miscarriage of justice – whether trial judge failed to address appellants' case theory – where aspects of appellants' case theory complained about did not respond to the pleaded case of the plaintiff below – no error shown – whether delay between cross-examination and judgment contributed to any error by trial judge in credit findings – no error found – whether findings within trial judgment inconsistent – no inconsistency shown – whether trial judge's reliance on contemporaneous documents misplaced in circumstances where certain other documents were shown to be backdated and contain forgeries – no error shown – appeal dismissed PRACTICE AND PROCEDURE – whether leave should be granted to amend notice of appeal in the course of the hearing of the appeal – where additional contention lacks merit – leave refused CORPORATIONS – breaches of duties of directors of a responsible entity under s 601FD of the Corporations Act 2001 (Cth)

Legislation: Corporations Act 2001 (Cth) ss 601EB, 601FC, 601FD 601GA, 601HA, 1317S, 1318, Ch 5C, Pt 7.9 Evidence Act 1995 (Cth) s 27 Federal Court of Australia Act 1976 (Cth) ss 28, 24