White Constructions (ACT) Pty Limited (In Liquidation) v White & 14 Ors [2005] NSWCA 173

New South Wales Court of Appeal

CITATION: White Constructions (ACT) Pty Limited (In Liquidation) v White & 14 Ors [2005] NSWCA 173

HEARING DATE(S): 04/04/05, 05/04/05, 06/04/05, 07/04/05, 11/04/05, 12/04/05

JUDGMENT DATE: 17 June 2005

JUDGMENT OF: Santow JA at 1; Ipp JA at 2; McColl JA at 327

DECISION: (1) Appeals dismissed (2) Appellant to pay the respondents' costs of the appeals.

CATCHWORDS: APPEALS - Challenges to factual findings made by trial judge - Principle in Devries v Australian National Railways Commission (1993) 177 CLR 472 applies - Damages - Contended on appeal that loss was suffered - Loss was of a different kind to that argued at trial - Principles relating to finality of litigation prevent damages being awarded on appeal. - EVIDENCE - Discretion to limit use made of evidence that is admitted - s 136 Evidence Act 1995 (NSW) - Failure to call a relevant witness - No explanation given - Rule in Jones v Dunkel (1959) 101 CLR 298 applies. - RESTITUTION - Failure to raise it properly at trial such that no evidence there led - Appeal Court unable to determine whether restitution could be practically effected and whether it would be equitable to grant such relief. - CORPORATIONS - Breach of fiduciary duties by directors - Where fraudulent preference afforded to certain creditors - Whether damages recoverable by company itself - Company must prove it sustained financial loss. - EQUITY - Statutes of limitations - Doctrine of analogy is recognised - Breach of fiduciary duties by directors - s 48 of the Limitation Act 1969 (NSW) applies by analogy. D

Corporations Act 2001 (Cth), Pt 5.7B, ss 565, 598(2) Evidence Act 1995 (NSW), s 136 LEGISLATION CITED: Income Tax Assessment Act 1936 (Cth), s 80E Limitation Act 1969 (NSW), ss 14(1)(d), 48