In the matter of FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2017] NSWSC 476

Supreme Court New South Wales

Medium Neutral Citation: In the matter of FAL Healthy Beverages Pty Ltd and FAL Retail Pty Ltd [2017] NSWSC 476 Hearing dates: 22 February – 24 February 2017; 28 February 2017; 3 March 2017. Decision date: 27 April 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Defendant breached his statutory and general law directors' and officers' duties in respect of the transactions identified in the Plaintiffs' Further Amended Statement of Claim (with the exception of transactions 6, 10 and 25 to Schedule B). The Defendant's liability in respect of those transactions is not reduced by reason of the Plaintiffs' settlement with other parties. It has not been established that the Defendant breached his directors' or officers' duties in respect of the alleged misapplication of funding provided for equipment and factories in Saudi Arabia and Malaysia, and the evidence would not allow the Court to make an award of damages in respect of the latter claim. Catchwords: CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – where Defendant was director and officer of Plaintiff companies – whether Defendant procured, made or permitted payments by companies to Defendant and entities controlled by him – whether Defendant permitted companies to incur fines – whether Defendant failed to apply certain funds of the companies for their intended purpose – whether Defendant breached directors' duties.

EVIDENCE – Burden of proof, presumptions, and weight and sufficiency of evidence – where relevant facts are peculiarly within the knowledge of the Defendant or where the Defendant has greater means to produce evidence