J and E Vella Pty Ltd v Hobson [2023] NSWCA 234

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 Hearing dates: 7-8 August 2023 Date of orders: 5 October 2023 Decision date: 05 October 2023 Before: Mitchelmore JA at [1]; Adamson JA at [19]; Stern JA at [153]. Decision: (1) The appeal is dismissed. (2) The appellants pay the respondents' costs of the proceedings. Catchwords: EVIDENCE — appellate review of witness evidence — competing accounts of central factual issue — whether primary judge's findings were most likely affected by impressions about the credibility and reliability of the witnesses — advantage of primary judge in seeing and hearing the witnesses give evidence — whether primary judge's findings also informed by assessment of evidence as a whole including plausibility of the accounts of various witnesses having regard to documentary evidence — whether primary judge's findings were glaringly improbable or contrary to compelling inferences EQUITY — appeals — fiduciary duties — where parties were equal shareholders in freight company — where labour divided between shareholder companies — whether parties relationship gave rise to fiduciary duty — whether appellants placed trust and confidence in respondents not to act to their detriment — whether fiduciary duty breached Legislation Cited: Supreme Court Act 1970 (NSW), s 75A Cases Cited: Brunninghausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWSC 199 Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; (2021) 388 ALR 128 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 In the matter of Beverage Freight Services Pty Ltd [2022] NSWSC 874 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Stellar Vision Operations Pty Ltd v Hills Health Solutions Pty Ltd [2023] NSWCA 102 United Dominions Corporation Ltd v Brian Pty Ltd (1985) 157 CLR 1; [1985] HCA 49 Vagg v McPhee (2013) 85 NSWLR 154; [2013] NSWCA 29 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Watson v Foxman (1995) 49 NSWLR 315 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: J and E Vella Pty Ltd (First Appellant) Joseph Gregory John Vella (Second Appellant) Brian Charles Hobson (First Respondent) Hynadam Pty Ltd (Second Respondent) Brett Soper (Third Respondent) Mechita Pty Ltd (Fourth Respondent) Beverage Freight Services Pty Ltd (Fifth Respondent) Beverage Distribution Australia Pty Ltd (Sixth Respondent) Hynadam Nominees Pty Ltd (Seventh Respondent) McIntyre Holdings NSW Pty Ltd (Eight Respondent) Representation: Counsel: Mr G Sirtes SC and Mr D Birch (Appellants)