Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Peter Hillig in his capacity as liquidator of ACN 092 745 330 Pty Ltd (in Liquidation) & Anor v Battaglia & Ors [2018] NSWCA 67 Hearing dates: 7 and 8 February 2018 Decision date: 10 April 2018 Before: Gleeson JA at [1] Leeming JA at [131] Emmett AJA at [132] Decision: (1) Appeal allowed.

(2) Set aside the judgment and orders below made on 17 March 2017.

(3) Respondents to pay the appellants' costs of the appeal.

(4) Remit the proceedings to the Supreme Court for a new trial on all issues.

(5) Costs of the first trial be determined by the Court below as part of the costs of the new trial. Catchwords: APPEAL – new trial – whether substantial miscarriage – whether remittal of whole or part of proceedings

CORPORATIONS – directors and officers – where payments made by company to senior employee's wife and their family company – whether employee caused the relevant payments to be made in breach of statutory and fiduciary duties owed to the company – whether the employee was a de facto director – whether a cogent commercial explanation for making relevant payments – whether payments related to employee's remuneration package

EVIDENCE – documentary evidence – application to adduce further evidence on appeal – where evidence raises issues of credit – business records exception to hearsay rule – whether exclusion in s 69(3)(b) of the Evidence Act 1996 (NSW) applies – whether the evidence should be excluded on discretionary grounds under s 135 of the Evidence Act Legislation Cited: Corporations Act 2001 (Cth), ss 9, 181, 182, 513C, 588FE(6A), 588FDA, 588FF, 1317DA, 1317E, 1317H Evidence Act 1995 (NSW), ss 55, 59, 60, 69, 81, 82, 135, Dictionary Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122 Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Croucher v Cachia [2016] NSWCA 132 CSR Ltd v Della Maddalena (2006) 80 ALJR 458; [2006] HCA 1 Harrison v Schipp (2002) 54 NSWLR 612; [2002] NSWCA 78 Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93 Pateman v Higgin (1957) 97 CLR 521; [1957] HCA 62 Shimokawa v Lewis [2009] NSWCA 266 Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343; [2001] NSWCA 381 Category: Principal judgment Parties: Peter Hillig in his capacity as official liquidator of ACN 092 745 330 Pty Ltd (In Liquidation) (First Appellant) ACN 092 745 330 Pty Ltd (in Liquidation) formerly known as SX Projects (NSW) Pty Ltd (Second Appellant) Vince Bruno Battaglia (First Respondent) Karen Lee Battaglia (Second Respondent) Fellmane Pty Ltd (Third Respondent) Representation: Counsel: Dr AS Bell SC / Mr PM Knowles & Mr MG Baroni (Appellants) Ms M Painter SC / Mr T Bagley (Respondents)