BCI Finances Pty Limited (in liq) v Binetter [2018] FCAFC 189

FEDERAL COURT OF AUSTRALIA

BCI Finances Pty Limited (in liq) v Binetter [2018] FCAFC 189 Appeal from: BCI Finances Pty Limited (in liq) v Binetter (No 4) [2016] FCA 1351 BCI Finances Pty Limited (in liq) v Binetter (No 5) [2017] FCA 1524

File numbers: NSD 2109 of 2016 NSD 188 of 2018

Judges: ALLSOP CJ, MOSHINSKY AND COLVIN JJ

Date of judgment: 9 November 2018

Catchwords: CORPORATIONS – directors' duties – where certain directors involved companies in a scheme for the dishonest evasion of taxation – where, as a result of the scheme, the companies were assessed to taxation, penalties and interest – where the companies went into liquidation and were unable to pay their taxation liabilities – where the primary judge found that certain directors had breached their fiduciary duties to the companies – where the companies had entered into transactions with Israeli banks whereby the banks advanced money secured by offshore deposits – where the existence of the offshore deposits was concealed from the Australian Taxation Office – whether the primary judge erred in finding that the transactions between the companies and the Israeli banks were not loans – whether the primary judge erred in failing to hold that there was no breach of duty because the advances from the Israeli banks were interest-bearing loans – whether the primary judge erred in finding that one of the directors was not liable for breach of the duties he owed to the companies PRACTICE AND PROCEDURE – costs – deceased person – where a person was appointed to represent the deceased person's estate for the purpose of a proceeding pursuant to r 9.24 of the Federal Court Rules 2011 – where claims were brought against both the estate and the representative in his own right – where claims against the estate succeeded and claims against the representative in his own right failed – whether costs orders against the estate should be payable by the representative personally or limited to the assets of the estate – whether set-off of costs orders appropriate