Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Earth Civil Australia Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Diamondwish Pty Ltd (in liq) v Ivana Cassaniti; Rackforce Pty Ltd (in liq) v Ivana Cassaniti; RCG CBD Pty Limited (in liq) v Borg Family Pty Ltd [2022] NSWCA 160

Bluemine Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Earth Civil Australia Pty Ltd (in liq) v AKA (Civil) Pty Ltd; Diamondwish Pty Ltd (in liq) v Ivana Cassaniti; Rackforce Pty Ltd (in liq) v Ivana Cassaniti; RCG CBD Pty Limited (in liq) v Borg Family Pty Ltd [2022] NSWCA 160

Appeals against Ivana Cassaniti and Borg parties dismissed because evidence did not establish requisite knowledge of dishonest and fraudulent design, including reliance on professional advice and credibility findings; appeals against AKA companies allowed because director’s knowledge was partly for company benefit through tax advantages, so corporate attribution applied, making companies liable as accessories for breaches of fiduciary and statutory duty.

Jurisdiction
Australia
Judgment Date
25 August 2022
Procedural Posture
Appeal / Judgment
Outcome
Appeals against Ivana Cassaniti, Borg parties and associated companies dismissed; appeals against AKA (Civil) Pty Ltd and AKA (NSW) Pty Ltd allowed; compensation and costs orders varied.
Legal Topics
['fiduciary Duties' 'accessorial Liability' 'corporate Attribution' 'procedural Fairness' 'taxation Scheme Fraud']
['equity' 'corporations Law'] ['fiduciary Duties' 'accessorial Liability' 'corporate Attribution' 'procedural Fairness' 'taxation Scheme Fraud']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether respondents had knowledge of breaches of fiduciary duty and dishonest and fraudulent design in carousel payment transactions' 'Whether primary judge erred in findings regarding knowledge attributed to parties and corporate attribution' 'Whether costs and compensation orders should be varied']

Ratio Decidendi

Appeals against Ivana Cassaniti and Borg parties dismissed because evidence did not establish requisite knowledge of dishonest and fraudulent design, including reliance on professional advice and credibility findings; appeals against AKA companies allowed because director’s knowledge was partly for company benefit through tax advantages, so corporate attribution applied, making companies liable as accessories for breaches of fiduciary and statutory duty.

Court Disposition

Appeals against Ivana Cassaniti, Borg parties and associated companies dismissed; appeals against AKA (Civil) Pty Ltd and AKA (NSW) Pty Ltd allowed; compensation and costs orders varied.

Orders

  • ["Diamondwish appeal (2021/289067): Appeal dismissed; appellants to pay respondent's costs." "Rackforce appeal (2021/289068): Appeal dismissed; appellants to pay respondent's costs." "RCG appeal (2021/289069): Appeal dismissed; appellants to pay respondent's costs." "Bluemine appeal (2021/289065): Appeal allowed;...