White Constructions (ACT) Pty Limited (In Liquidation) v White & 14 Ors

[2005] NSWCA 173

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Challenges to factual findings
3. › Findings based on credibility of witnesses
4. › Whether appellate court may overturn trial judge's credibility findings
5. › Principles in Devries v Australian National Railways Commission and Fox v Percy
6. › Whether findings glaringly improbable or contrary to compelling inferences
1. Equity
2. › Breach of fiduciary duty
3. › Directors' duties
4. › Misfeasance
5. › Actual fraud alleged
6. › Whether directors conspired to strip company of assets to defeat creditor's claim
7. › Whether constructive fraud could be argued when only actual fraud pleaded
1. Restitution
2. › Restitutionary relief
3. › Failure to plead restitutionary relief at trial
4. › Whether relief could be claimed on appeal
5. › Principles relating to finality of litigation
1. Evidence
2. › Discretion to limit use of evidence
3. › Evidence Act 1995 (NSW), s 136
4. › Whether trial judge erred in limiting use of document of uncertain provenance

Quick Take

The case confirms that appellate courts will not disturb a trial judge's factual findings, including credibility assessments, in fraud cases involving directors' breach of fiduciary duty, unless the findings are glaringly improbable, contrary to compelling inferences, or inconsistent with incontrovertible evidence. Where serious allegations of dishonesty are made, the Briginshaw standard applies and the evidence must be commensurate with the gravity of the allegations. A party that fails to plead restitutionary relief at trial and fails to lead evidence on it cannot claim such relief on appeal.