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

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

Further evidence on appeal directly contradicted Mr Battaglia’s evidence that certain payments were remuneration; as credit was central to primary findings, it was not possible for the appellate court to re-determine factual issues without rehearing all evidence and allowing a response. Accordingly, the primary judgment was set aside and a new trial ordered on all issues.

Parties
First Appellant: Peter Hillig in his capacity as official liquidator of ACN 092 745 330 Pty Ltd (In Liquidation); Second Appellant: ACN 092 745 330 Pty Ltd (in Liquidation) formerly known as SX Projects (NSW) Pty Ltd; First Respondent: Vince Bruno Battaglia; Second Respondent: Karen Lee Battaglia; Third Respondent: Fellmane Pty Ltd
Jurisdiction
Australia
Judgment Date
10 April 2018
Procedural Posture
Civil Appeal / Court of Appeal – Post Trial Appeal From Equity Division
Outcome
Appeal allowed; new trial ordered
Legal Topics
Director Duties, Liquidator Powers, Unreasonable Director Related Transactions, Voidable Transactions, Business Records Exception to Hearsay, Credit of Witnesses, Adducing Further Evidence on Appeal
Corporations Law Civil Procedure Evidence Director Duties Liquidator Powers Unreasonable Director Related Transactions Voidable Transactions Business Records Exception to Hearsay +2 more

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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

Procedural Posture

Civil Appeal / Court of Appeal – Post Trial Appeal From Equity Division

Legal Issues

  1. 1 Whether Mr Battaglia was a de facto director of 330Co prior to formal appointment
  2. 2 Whether Mr Battaglia directed, authorised or caused impugned payments to be made
  3. 3 Whether the Schedule B and C payments had a cogent commercial explanation as remuneration

Ratio Decidendi

Further evidence on appeal directly contradicted Mr Battaglia’s evidence that certain payments were remuneration; as credit was central to primary findings, it was not possible for the appellate court to re-determine factual issues without rehearing all evidence and allowing a response. Accordingly, the primary judgment was set aside and a new trial ordered on all issues.

Court Disposition

Appeal allowed; new trial ordered

Orders

  • Appeal allowed.
  • Set aside the judgment and orders below made on 17 March 2017.