Aidzan Pty Ltd (in liq) v K. & A. Laird (N.S.W.) Pty Ltd (in liq) [2024] NSWCA 185

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aidzan Pty Ltd (in liq) v K. & A. Laird (N.S.W.) Pty Ltd (in liq) [2024] NSWCA 185 Hearing dates: 4-5 December 2023 Date of orders: 30 July 2024 Decision date: 30 July 2024 Before: Ward P at [1]; Meagher JA at [2]; Adamson JA at [132] Decision: (1) Dismiss the appeal. (2) Allow the cross-appeal. (3) Set aside orders 6 and 7 made by Black J on 4 July 2023 and instead order: (a) that Peter Laird, Aidzan Pty Ltd (in liq) and Nazdia Pty Ltd pay to K. & A. Laird (N.S.W.) Pty Ltd (in liq) the amount of $2,094,545 in rent paid to Aidzan Pty Ltd (in liq) in relation to the Sunnyholt Property for the period from 1 July 2005; and (b) that Peter Laird, Aidzan Pty Ltd (in liq) and Nazdia Pty Ltd pay to K. & A. Laird (N.S.W.) Pty Ltd (in liq) interest, pursuant to s 100 of the Civil Procedure Act 2005 (NSW), on the sum of $2,094,545 in the sum of $1,889,254.70. (4) Peter Laird, Aidzan Pty Ltd (in liq) and Nazdia Pty Ltd as appellants/cross-respondents pay K. & A. Laird (N.S.W.) Pty Ltd (in liq) as respondent/cross-appellant's costs of the appeal and cross-appeal. Catchwords: LIMITATION OF ACTIONS – breaches of fiduciary duty by director – claims by company for equitable relief against director and associated third parties – when company "first discovers" facts giving rise to claim for purposes of Limitation Act 1969 (NSW), s 47(1)(e) – principles applicable to attribution of director's knowledge to company – whether those principles involve application of general rule in favour of attribution subject to "fraud exception" turning on whether company received benefit from director's conduct – director's knowledge of circumstances of breaches not attributed to company where attribution sought to defeat company's claims EQUITY – equitable remedies – where director misappropriates company funds – where director subsequently characterises payment to him of company funds as a "loan" – whether later payment by director to company should be treated as reducing amount of equitable compensation to which company entitled – not established that later payment when made was to be applied in reduction of "loan" Legislation Cited: Civil Procedure Act 2005 (NSW), s 100 Limitation Act 1969 (NSW), ss 11, 14, 15, 47, 55 Cases Cited: All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Ltd (No 2) [2021] FCA 782 Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Barnes v Addy (1874) LR 9 Ch App 244 Beach Petroleum NL v Johnson (1993) 43 FCR 1 Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408 Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 Bilta (UK) Ltd (in liq) v Nazir (No 2) [2016] AC 1 Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd [2022] NSWCA 160 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Canadian Dredge & Dock Co Ltd v The Queen [1985] 1 SCR 662 Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 In re Hampshire Land Company [1896] 2 Ch 743 In the matter of K. & A. Laird (N.S.W.) Pty Ltd (in liq) [2022] NSWSC 510 Kennedy v Green (1834) 3 My & K 699 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Moulin Global Eyecare Trading Ltd (in liq) v Commissioner of Inland Revenue (2014) 17 HKCFAR 218; [2014] HKCFA 22 Singularis Holdings Ltd (in liq) v Daiwa Capital Markets Europe Ltd [2020] AC 1189 Stone & Rolls Ltd (in liq) v Moore Stephens (a firm) [2009] 1 AC 1391 Texts Cited: P Watts, 'Imputed Knowledge in Agency Law – Excising the Fraud Exception' (2001) 117 LQR 300 P Watts and F Reynolds, Bowstead & Reynolds on Agency (22nd ed, 2021, Sweet & Maxwell) Category: Principal judgment Parties: Aidzan Pty Ltd (in liq) in its own capacity and in its capacity as trustee of the Peter Laird Trust and the Peter Alan Laird Property Trust (First Appellant/First Cross-Respondent) Nazdia Pty Ltd in its capacity as trustee of the Aidzan Superannuation Fund (Second Appellant/Second Cross-Respondent) Peter Alan Laird (Third Appellant/Third Cross-Respondent) K. & A. Laird (N.S.W.) Pty Ltd (in liq) (Respondent/Cross-Appellant) Representation: Counsel: D Studdy SC and J Nixon (Appellants/Cross-Respondents) A Leopold SC and J Tobin (Respondent/Cross-Appellant)