In the matter of ACN 092 745 330 [2017] NSWSC 241

Supreme Court New South Wales

Medium Neutral Citation: In the matter of ACN 092 745 330 [2017] NSWSC 241 Hearing dates: 14, 15, 16 February 2017, 1 March 2017 Decision date: 17 March 2017 Jurisdiction: Equity Before: Barrett AJA Decision: 1. Order that the plaintiffs' claims be dismissed. 2. Order that the plaintiffs pay the defendants' costs of the proceedings. Catchwords: CORPORATIONS – directors and officers – duties of directors and officers – where payments were made by a company to a senior employee, his wife and their family company – allegation by the company (through its liquidator) that the employee was a de facto director and that he directed, authorised or otherwise caused the company to make the payments in breach of statutory and general law duties – whether the employee was a de facto director – whether he owed fiduciary duties – whether there was commercial explanation for the making of the payments – whether the employee directed, authorised or otherwise caused the company to make the payments – CORPORATIONS – voidable transactions – unreasonable director related transactions – whether relief under s 588FF available to the liquidator in respect of the payments. Legislation Cited: A New Tax System (Australian Business Number) Act 1999 (Cth) Corporations Act 2001 (Cth) National Consumer Credit Protection Act 2009 (Cth) Cases Cited: Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2013] FCA 1341 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64 Crowe-Maxwell v Frost (2016) 91 NSWLR 414; [2016] NSWCA 46 Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 Hawksford v Hawksford [2005] NSWSC 463; (2005) 191 FLR 173 Holland v Commissioners for Her Majesty's Revenue and Customs [2010] 1 WLR 2793; [2010] UKSC 51 In the matter of Onesteel Manufacturing Pty Ltd [2017] NSWSC 21 In the matter of Swan Services Pty Ltd [2016] NSWSC 1724 Smithton Ltd v Naggar [2015] 1 WLR 1893; [2014] EWCA Civ 939 Texts Cited: Mark Leeming, "Equity and Statute" in P Turner (ed), Equity and Administration (Cambridge University Press, 2016), 248-257 Matthew Conaglen, "Interaction between statutory and general law duties concerning company director conflicts" (2013) C&SLJ 403 Category: Principal judgment Parties: Plaintiff 1 - Peter Hillig in his capacity as official liquidator of ACN 092 745 330 Pty Ltd (In Liquidation) Plaintiff 2 - ACN 092 745 330 Pty Ltd (In Liquidation) Defendant 1 - Vince Bruno Battaglia Defendant 2 - Karen Lee Battaglia Defendant 3 - Fellmane Pty Ltd ACN 074 162 815 Representation: Counsel: Plaintiffs - Mr RD Marshall SC Defendants - Ms M Painter SC with her Mr T Bagley