Treloar Constructions Pty Limited v McMillan [2017] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Treloar Constructions Pty Limited v McMillan [2017] NSWCA 72 Hearing dates: 9 February 2017 Decision date: 06 April 2017 Before: Beazley P; Gleeson JA; Emmett AJA Decision: (1) Appeal allowed;

(2) Set aside the orders made in the District Court and, in lieu thereof, direct the entry of judgment for the plaintiff in the sum of $418,991.77 together with interest and order the defendant to pay the plaintiff's costs;

(3) The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. Catchwords: CONTRACTS – payment term in contract for construction and project management services – stipulation that suppliers and contractors organised and paid by contractor to be charged at cost plus management fee – whether effect of the word "paid" meant that contractor not entitled to render invoices until it had paid underlying suppliers and contractors

CORPORATIONS – recovery of compensation from director pursuant to Corporations Act 2001 (Cth), s 588M for insolvent trading contrary to s 588G – requirement of insolvency at time debts incurred – factors relevant in determining whether company unable to pay its debts as and when they become due and payable – relevance of non-binding offer of funding – relevance of availability of informal overdraft facility – relevance of unpaid tax debts – relevance of trade debtors of related companies

CORPORATIONS – recovery of compensation from director pursuant to Corporations Act 2001 (Cth), s 588M for insolvent trading contrary to s 588G – requirement of insolvency at time debts incurred – where party seeking recovery relied on report and expert evidence of insolvency practitioner to establish insolvency at relevant times – whether respondent director bore evidentiary onus to contradict expert's evidence