Hillsea Pty Ltd v Joseph; McIvor v Joseph

Hillsea Pty Ltd v Joseph; McIvor v Joseph - [2020] NSWCA 55 - NSWCA 2020 case summary — Zoe

[6]

HEADNOTE [This headnote is not to be read as part of the judgment] Hillsea Pty Ltd (the Company) originally operated a clothing manufacturing business and conducted property developments under the control of Anthony Leo Joseph (Anthony). Maris Astella Joseph (Marie), a sister of Anthony, was appointed a director and secretary of the Company in October 1960. Anthony died in October 1989, and his brother Peter Joseph (Peter) was appointed a director of the Company in November 1989. Marie died in September 2015 and, at the time of her death, held 14 of the 15 issued shares in the Company, with Peter holding the other share. Marie and Peter were the Company's two directors at the time of Marie's death. The executors of Marie's estate (the executors) were granted probate of Marie's will in January 2016, which provided for them to pay the balance of Marie's estate, including her shares in the Company, to 41 great-nieces and great-nephews in equal shares as tenants-in-common. On 5 April 2016, the executors proposed that the Company proceed promptly to a members' voluntary liquidation and offered to pay the fees and charges of a liquidator (Mr Reidy) if Peter agreed to his appointment. That proposal was not accepted by Peter at the time, with disputes arising between the executors and Peter in relation to various loans the Company had made to both Peter and Marie. Repayments of those loans were made to the Company by both Peter and the Estate in June 2016. Although agreement was eventually reached as to the voluntary winding up and appointment of Mr Reidy as liquidator, further disputes arose between the executors and Peter, with legal correspondence ensuing in relation to the shareholding of the Company, its failure to maintain a share register and the failure to issue share certificates to the executors. Allegations were also made as to the validity of Peter's actions as a director of the Company since Marie's death in 2015, because the Company's Articles of Association provided for a quorum of five directors after Anthony's death, and there was only one director, namely Peter. On 14 November 2017, in interlocutory proceedings before Brereton J, the Company was ordered to establish a register of its members. No order was made in relation to the costs of that application (the Share Register Application). Although certain declaratory relief sought was not dealt with during the interlocutory proceedings, Points of Claim were later filed by the Company as to the validity of Peter's actions as director of the Company since Marie's death, a declaration that the Company's board of directors should comprise at leave five directors, and a claim that Peter repay to the Company "all money taken from it by him without authorisation", which collectively totalled just over $20,000 (the Impugned Payments). The Company made a further claim in debt against Peter in the sum of approximately $400,000, which was said to comprise the outstanding interest on loans to Peter by the Company, based on an alleged informal agreement reached between Marie and Peter in about 1990 to pay interest on the loans (the Interest Claim). On 4 September 2019, Black J (the primary judge) made orders for the winding up of the Company on the 'just and equitable' ground under s 461(1)(k) of the Corporations Act. Additionally, he dismissed the Company's Interest Claim against Peter, as he was not prepared to find, on the evidence before him, that an oral agreement had been established relating to the payment of interest on the loans. The primary judge made further orders, pursuant to s 1322(4)(a) of the Corporations Act, declaring that the Impugned Payments were not invalid by reason of any want of authority on Peter's part as a director of the Company to enter into them, and made an order pursuant to s 1322(4)(c) of the Corporations Act that Peter be relieved of any civil liability in respect of the Impugned Payments. The primary judge further held that there be no order as to the costs of and incidental to the Share Register Application. Summonses for leave to appeal from the decisions of the primary judge were filed by both Mrs McIvor (being the surviving executor) and the Company. Mrs McIvor sought to challenge the primary judge's decision to wind up the Company and to decline to order that Peter pay the executors' costs of the Share Register Application. The Company sought to challenge the primary judge's decision to wind up the Company and the orders made under s 1322 of the Corporations Act in respect of the Impugned Payments. It also sought to recast the Interest Claim against Peter as a claim for breach of fiduciary duty. The Court held (Bell P, Bathurst CJ and Gleeson JA agreeing), dismissing the applications for leave to appeal with costs: 1. In relation to the winding up order, leave to appeal was refused, as there was no error in the primary judge's decision to wind up the Company, and in light of the fact that the evidence at first instance and the executors' submissions revealed that the Company would inevitably have been wound up in any event: [1] (Bathurst CJ); [37] - [41] (Bell P); [60] (Gleeson JA). 2. In relation to the Impugned Payments, leave to appeal was refused, as the value of the payments (being only slightly over $20,000) fell below the $100,000 threshold pursuant to s 101(2)(r) of the Supreme Court Act. There was no error of principle in the primary judgment nor any important question of policy which would warrant the grant of leave to appeal: [1] (Bathurst CJ); [42] - [46] (Bell P); [60] (Gleeson JA). 3. In relation to the "no costs" order with respect to the Share Register Application, leave to appeal was refused, as there was no House v R error identified in relation to the primary judge's exercise of discretion on this question: [1] (Bathurst CJ); [47] - [51] (Bell P); [60] (Gleeson JA). 4. In relation to the Company's claim based on alleged breach of fiduciary duty, which was neither pleaded nor run at first instance, the Court dismissed this claim as formulated under the Company's Amended Notice of Appeal as incompetent, given that the posited claim would likely be both factually and legally complex, and may have raised new potential issues including the availability of equitable defences and limitation periods, if permitted to be argued: [1] (Bathurst CJ); [52] - [59] (Bell P); [60] (Gleeson JA).

[7]

Judgment

BATHURST CJ: I agree with Bell P.
BELL P: Hillsea Pty Ltd (the Company) was incorporated in 1960 under the Companies Act 1936 (NSW) and operated a clothing manufacturing business and also conducted property developments from time to time under the control of Anthony Leo Joseph (Anthony). Maris Astella Joseph (Marie), a sister of Anthony, was appointed a director and secretary of the Company on 17 October 1960.
Anthony died in October 1989 and Peter Joseph (Peter) was appointed a director of the Company on 13 November 1989. He was a brother of Marie and Anthony.
Marie died on 24 September 2015 at the age of 86. At the time of her death, she held 14 of the 15 issued shares in the Company, and Peter held the other share. Marie and Peter were the Company's two directors at the time of her death.
The executors of Marie's estate (the executors) are an Elizabeth Mary McIvor (Mrs McIvor) and Maureen Ann Joseph (Maureen). Maureen died prior to the hearing before this Court. The executors were granted probate of Marie's will in January 2016, which provided for them to pay the balance of Marie's estate, after debts, funeral and testamentary expenses, to 41 great-nieces and great-nephews who were living at the time of her death and had reached 18 years of age, in equal shares as tenants-in-common. Part of Marie's estate included 14 of the 15 issued shares in the Company.
On 5 April 2016, the executors proposed that the Company proceed promptly to a members' voluntary liquidation and offered to pay the fees and charges of a liquidator (Mr Reidy) if Peter agreed to his appointment.
That proposal was not accepted by Peter at the time. Disputes arose between the executors and Peter in relation to various loans the Company had made to both Peter and Marie. Repayments of those loans were made to the Company by both Peter and the Estate in June 2016.
Although it appears that agreement was reached at some time after these repayments as to the voluntary winding up and appointment of Mr Reidy as liquidator, other events resulted in disputation between the executors and Peter, including in relation to the tax implications of the winding up, the payment of disbursements and directors' fees to Peter and the provision of records of the Company.
On 8 August 2017, Peter, through his solicitor, proposed that the appointment of Mr Reidy as the Company's liquidator proceed but, by that point of time, the executors no longer supported the winding up of the Company. By the end of August 2017, Peter foreshadowed that he, as the only director of the Company, would appoint a liquidator to the Company.
Further disputes arose and legal correspondence ensued in relation to the shareholding of the Company, its failure to maintain a share register and the failure to issue share certificates to the executors. Allegations were also made as to the validity of Peter's actions as a director of the Company since Marie's death in 2015 because the Company's Articles of Association provided for a quorum of five directors after Anthony's death.
Proceedings were commenced in the Equity Division of this Court in September 2017 and, on 14 November 2017, Brereton J (as he then was) ordered the Company to establish a register of its members: In the matter of Hillsea Pty Ltd [2017] NSWSC 1870. His Honour did not make any order at that point in time in relation to the cost of that application which it is convenient to refer to as the Share Register Application.
Other relief that had been sought by the executors in the Amended Originating Process included declarations as to the validity of Peter's actions as director of the Company since Marie's death, together with a declaration that the Company's board of directors should comprise at least five directors.
The declaratory relief sought in the Amended Originating Process was not dealt with in the interlocutory proceedings before Brereton J. Rather, Points of Claim were directed to be filed in relation to the relief claimed in prayers 4 and 5 of the Originating Process. When filed, these included a newly articulated claim that Peter repay to the Company "all money taken from it by him without authorisation" (the Impugned Payments). These payments collectively totalled just over $20,000.
A defence to the Points of Claim was filed by Peter on 4 December 2017 together with a Statement of Cross-Claim in which, inter alia, Peter sought orders pursuant to ss 461(1)(d), (f), (g) and (k) of the Corporations Act 2001 (Cth) for the winding up of the Company and the appointment of Mr Reidy, or some other fit and proper person, as its liquidator.
By the same Cross-Claim, Peter sought orders pursuant to s 1322(4)(a) of the Corporations Act to the effect that the transactions entered into by the Company resulting in the Impugned Payments were not invalid by reason of any want of authority on his part as a director of the Company to enter into them. In the alternative, Peter sought orders pursuant to s 1322(4)(c) of the Corporations Act that he be relieved of civil liability in respect of the Impugned Payments.
A second Statement of Cross-Claim was filed by the Company, by this time in the effective control of parties associated with the executors, in which the Company formulated a claim in debt against Peter in the sum of approximately $400,000 and sought a declaration and order that Peter repay that amount to the Company. This amount was said to be comprised of outstanding interest on loans to Peter and companies associated with him by the Company, it being alleged that there had been an informal agreement reached between Marie and Peter in about 1990 to pay interest on the loans (the Interest Claim).

[8]

Primary judgment

On 4 September 2019, Black J, sitting in the Corporations List of the Equity Division of this Court, made orders for the winding up of the Company: In the matter of Hillsea Pty Limited [2019] NSWSC 1152. Although the winding up had been sought on several alternative grounds, the ground ultimately relied upon by the primary judge was the "just and equitable ground" under s 461(1)(k) of the Corporations Act. Relevantly, his Honour held (at [110]) "that the current use of the Company for the sole or primary purposes of conducting proceedings against one older family member is outside the purposes for which the Company was established". The basis for his Honour's statement as to the sole or primary purpose of the Company may well have been the following evidence given under cross-examination by Maureen: "[COUNSEL]: What do you propose now is going to happen to the company? [MAUREEN]: Well, we're still working towards liquidation, but we want to make sure that, that the estate is paid what it - that Hillsea is - retrieves what it, what it's entitled to before we go, before we go into liquidation. So there's no point making a distribution until all of the, all of the assets are, are received."
That evidence was in effect confirmed by counsel for the executors in his final address, who said of the executors that: "[t]hey have no reason to delay the liquidation of this company but your Honour will determine the company's claims and, once that's determined, there's no reason that the company won't be wound up and it should be left to the board of directors to do so".
It will be necessary to return to Maureen's evidence and this submission in due course.
Returning to the primary judge's reasons, his Honour also held that, at least since 1972 when the Company was restructured, "it was set up on a basis that contemplated continuing personal relations between the then siblings who held shares in the Company, and it was continued on that basis in the period in which Marie and Peter held its shares". His Honour observed (at [110]), that it was "plain that the personal relationship between the Plaintiffs on the one hand and Peter on the other has now collapsed, and the differences between them are now irreconcilable". The emergence of such irreconcilable differences provides a circumstance in which it has been held to be just and equitable for a company to be wound up. The primary judge referred in this regard to Fexuto Pty Limited v Bosnjak Holdings Pty Limited [2001] NSWCA 97; (2001) 37 ACSR 672 at [89] (Fexuto); Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 342; (2009) 71 ACSR 343 at [97]-[98]. In Fexuto, Spigelman CJ observed (at [89]) that: "It may be accepted that the existence of irreconcilable differences amongst persons involved in what is, in effect, a partnership, will destroy the personal relationship involving mutual confidence, that lies at the heart of the partnership analogy. This analogy has been applied both to applications for winding up on the just and equitable ground and also to oppression suits."
The order for the winding up of the Company and the appointment of a liquidator was stayed, initially for a three week period, but the stay was subsequently extended by Barrett AJA until the determination of matters in this Court or until further order.
In addition to the winding up order, the primary judge dismissed the Company's Interest Claim against Peter as his Honour was not prepared to find on the evidence before him that an oral agreement as to the payment of interest on the loans (the agreement underpinning the claim in debt) had been established: see [2019] NSWSC 1152 at [67].
The primary judge also made orders in Peter's favour pursuant to s 1322(4)(a) of the Corporations Act, declaring that the Impugned Payments were not invalid by reason of any want of authority on Peter's part as a director of the Company to enter into them: see [2019] NSWSC 1152 at [96]-[98]. His Honour also made an order pursuant to s 1322(4)(c) of the Corporations Act that Peter be relieved of any civil liability in respect of the Impugned Payments.
It should also be noted that, in the course of his reasons for judgment delivered on 4 September 2019, the primary judge expressed the preliminary view that an order for costs of and incidental to the Share Register Application before Brereton J should not be made in the executors' favour, even though they had succeeded in that application, and that there should be no order as to the costs of and incidental to that application. The primary judge afforded the parties an opportunity to file further written submissions on this aspect of the matter and delivered subsequent reasons for judgment with characteristic thoroughness on 27 September 2019: In the matter of Hillsea Pty Limited [2019] NSWSC 1309 at [9]-[18].
It is not necessary for present purposes to traverse the detail of his Honour's reasons on the costs question other than to note that, on a discretionary interlocutory matter concerning a matter of practice and procedure, namely costs, and after receiving and considering detailed submissions, his Honour reached the decision that the ordinary position that the executors should have their costs of the Share Register Application should be displaced. This was in circumstances where there was a real issue that, had particular matters not been put to Brereton J, the need for the interlocutory hearing before his Honour may have been obviated and the consequent costs never incurred.

[9]

Court of Appeal

Summonses for leave to appeal from the decisions of the primary judge were filed in this Court by both the Company and Mrs McIvor.
In Mrs McIvor's case, a Notice of Appeal which she had earlier filed without obtaining leave to appeal in effect stood as a Draft Notice of Appeal pending the grant of leave. She sought to challenge the primary judge's decision to wind up the Company and to decline to order that Peter pay the executors' costs of the Share Register Application.
The Company initially filed a Notice of Appeal which was subsequently amended. The Amended Notice of Appeal, whilst recognising that leave was required in respect of the challenge to the winding up order and orders under s 1322 of the Corporations Act in respect of the Impugned Payments, nevertheless proceeded on the basis that leave was not required in relation to the Interest Claim which exceeded $100,000, being the monetary threshold imposed by s 101(2)(r) of the Supreme Court Act 1970 (NSW). There was no appeal, however, against the primary judge's finding that the oral contract underpinning this claim had not been made out (see [22] above). Rather, the sole ground of appeal in relation to the Interest Claim was as follows: "As to the second cross-claimant's claim for recovery of interest on Mr. Joseph's director's loan, and loans for his two companies, if his Honour were correct in finding that the second cross-claimant had not established its contractual claim, his Honour should have found that the provision of company funds to Mr. Joseph for his own use, including to invest those moneys in real property in two suburbs of Sydney, but with no contractual obligation to pay interest, nonetheless obliged Mr. Joseph, as a fiduciary, to account to the appellant for the profits he made using those funds (which profits are presumed) and to pay interest to the appellant in Equity and further at the mercantile or commercial rate, on a compounding basis with periodic rests."
A claim based on breach of fiduciary duty had not been run before the primary judge and Peter filed a Notice of Motion in this Court seeking to have this aspect of the appeal dismissed or struck out on that basis (Peter's Notice of Motion).
In argument before this Court, Mr Coles QC, who appeared for the Company, recognised that he would require leave to bring the claim based on breach of fiduciary duty as it had not been argued at first instance.
It follows from the above that the Company and Mrs McIvor required leave to appeal in relation to: 1. the winding up order; 2. the Impugned Payments issue (which included the primary judge's orders pursuant to s 1322 of the Corporations Act); and 3. the "no costs" order in relation to the Share Register Application.
There was no issue between the parties in relation to the relevant principles to be applied regarding the grant of leave to appeal. These are well established. In PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (PPK Willoughby), this Court said: "Leave applications in this Court attract a general obligation on the applicant for leave to establish that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; BE Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]."
The Court in PPK Willoughby also observed (at [5]) that: "Discretionary decisions, whether in the context of substantive or procedural relief, also engage the strictures against over-ready appellate interference and the correlative need for 'added restraint' associated with House v R (1936) 55 CLR 499 with the consequence that a 'heavy burden' lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure: see, for example, Oswal v Burrup Fertilisers Pty Ltd (recs and mgrs apptd) [2011] FCAFC 117 at [8] and [11]; see also Warragamba Winery Pty Ltd v State of New South Wales [2010] NSWCA 174 at [6] where the task of an applicant seeking leave to challenge such a decision was described as a 'difficult' one; see also Cicek v The Estate of the Late Mark Solomon [2014] NSWCA 278 at [69]-[70]; Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73]-[75]; Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; 117 ACSR 176 at [29]; Mei Zhang v Ye Cheng [2018] NSWCA 299 at [12]".
In the context of applications for leave to proceed from winding up orders, leave under s 471B of the Corporations Act (which is broader than s 101(2)(n) of the Supreme Court Act) would normally be required (see DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (2014) 86 NSWLR 293; [2014] NSWCA 96 at [62]) but, as noted above at [21], the winding up order was stayed, initially until 21 October 2019 but subsequently extended to the determination of the matter in this Court. Leave to appeal is nonetheless required by reason of s 101(2)(n) of the Supreme Court Act, notwithstanding the grant of a stay.
At the conclusion of the oral hearing in this Court, the Court relevantly dismissed the applications for leave to appeal with costs and dismissed the Company's Amended Notice of Appeal as incompetent, reflecting the Court's view that leave to raise the breach of fiduciary duty argument should not be granted. Peter's Notice of Motion was also dismissed.
What follows are the reasons for those orders.

[10]

Winding up order

The decision to wind up the Company on the just and equitable ground involved an exercise of discretion by the primary judge.
To the extent that his Honour's decision was based upon the breakdown in relations between the family members represented on the board of the Company (see [20] above), no substantial or convincing attack was made on the primary judgment, nor was there any submission made that the authorities that his Honour cited in support of that aspect of his reasoning were inapposite or wrongly decided.
Rather, Mr Coles' focus was on that aspect of the primary judge's decision in which his Honour said that the primary purposes of the Company were no longer being pursued. He pointed to the fact that, under the Company's Articles of Association, investment was one of the Company's authorised purposes with the consequence, so he submitted, that it could not be said that the Company was no longer pursuing its objects. This submission overlooked the fact, however, that whilst it was true that the Company did have money invested, its only assets were its cash reserves.
It is not necessary to consider the correctness or otherwise of this aspect of the primary judge's decision in any event given that, in light of the evidence of Maureen which has been extracted at [17] above and the submissions made on behalf of the executors before the primary judge (see [18] above), no injustice would have been occasioned by the failure to grant leave to appeal. This is because that evidence and accompanying submission were to the effect that the Company would be wound up in any event, following the dealing by the Court with the claims against Peter. Those claims were dismissed by the primary judge and, for the reasons given below, leave to appeal was not granted in respect of those claims.
It follows that a case for leave to appeal from the decision to wind up the Company was simply not warranted, as it was inevitable that the Company would have been wound up in any event.

[11]

Impugned Payments

The collective value of the Impugned Payments amounted to a little over $20,000. The requirement for a grant of leave to appeal in respect of monetary claims of less than $100,000 (see s 101(2)(r) of the Supreme Court Act) serves an important purpose, which has been commented on in a number of decisions of this Court.
In Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69, Cole JA noted the desirability that, where small claims are involved, there be "early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute". See also Berry v Nicholls [2016] NSWCA 272 at [7]; Gaynor v Attorney General of New South Wales [2020] NSWCA 48 at [13]-[20].
One of the policy reasons underpinning s 101(2)(r) of the Supreme Court Act is that neither the public resources of the Court nor the private resources of litigants should be deployed or expended in litigation the cost of which is disproportionate to its value. Concern with proportionality of costs to value is also reflected in s 60 of the Civil Procedure Act 2005 (NSW) which provides that: "[i]n any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute."
In Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [39], followed in Joo v Yoo [2016] NSWCA 172 at [38]-[39], Basten JA (with whom Tobias AJA agreed) observed of s 60 of the Civil Procedure Act that: "This direction has an important operation in respect of leave applications involving amounts below the statutory threshold. Where, as in the present case, the costs of the trial are disproportionate to the amount in dispute, the incurring of additional costs, for a potentially uncertain return, will be a factor weighing heavily against a grant of leave."
Apart from the value of the Impugned Payments claim, which was only slightly over $20,000, no error of principle nor important question of policy was presented by either the primary judge's decision in respect of the Impugned Payments, and the orders his Honour made in relation thereto pursuant to s 1322(4) of the Corporations Act.

[12]

Costs

It is notorious that decisions as to costs involve a broad exercise of discretion and that appellate courts are, correctly, reluctant to interfere with costs orders at first instance: see Daulizio v Trust Company of Australia [2005] VSCA 215 at [6] (Daulizio); Transport Accident Commission v O'Reilly [1999] 2 VR 436 at 457; [1998] VSCA 106 at [46]. In Daulizio at [6], Nettle JA observed that: "The principles which govern an appeal against an order as to costs are clear. They proceed from the recognition that a trial judge has considerable latitude and individuality of choice in the formulation of orders for the payment of costs of the proceeding. In order for a party successfully to impugn an order as to costs, he or she must demonstrate that the judge erred in principle or took into account considerations which were irrelevant or left out of account considerations which were relevant or gave improper weight to some factors at the expense of others or too little weight to some factors relative to others or otherwise that the order was just so obviously unreasonable that the judge's discretion must have miscarried. A court of appeal must keep a tight rein on interference with costs orders, and consequently, it has been said, it is extraordinarily difficult to show that a court of first instance has erred in its power to award costs."
Judicial reluctance to interfere with costs orders has even greater force where the costs in issue relate to a single interlocutory application and their quantum falls below the $100,000 threshold as established by s 101(2)(r) of the Supreme Court Act.
It was accepted by counsel for Mrs McIvor that the costs involved in that application fell far below $100,000. Bearing in mind that the application before Brereton J was heard and determined on a single day, such costs were likely to (and certainly should) have been for a far more modest amount, even before assessment.
No House v R (1936) 55 CLR 499; [1936] HCA 40 error was identified in relation to the primary judge's careful exercise of discretion on the question of the costs of the Share Register Application.
The attempted challenge to the costs decision was, in my view, utterly hopeless, especially given the likely quantum involved, as familiarity with the well established principles summarised in PPK Willoughby (see [32]-[33] above) should have made abundantly clear.

[13]

Breach of fiduciary duty

As noted at [30] above, leave of the Court was required in relation to the Interest Claim which, in this Court, was sought to be formulated as a claim based on breach of fiduciary duty, an argument neither pleaded nor run at first instance. In this context, Leeming JA's observations in TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68 at [165] are apposite: "It is not sufficient for an appellant to establish that a new point of law could not possibly have been met by evidence (of course, if it could possibly have been met by evidence, that is an end of the matter: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438). It is also necessary for an appellant to demonstrate that the respondent would not have conducted the case differently at trial: see for a recent example Sze Tu v Lowe [2014] NSWCA 462; 89 NSWLR 317 at [315]-[316]."
There is no automatic right to have an issue which was not raised at first instance determined on appeal. In RinRim Pty Ltd v Deutsche Bank AG [2017] NSWCA 169 at [76], Sackville AJA observed: "It is a well established principle that an appellant is not entitled to raise a new argument on appeal if the contention could possibly have been met by evidence at the trial. However, as Leeming JA pointed out in Tal Life Ltd v Shuetrim, an appellant does not have a right to insist that a point be decided on appeal simply because it raises a question of law only or depends on facts established beyond controversy. The question is always whether the appellate court considers it 'expedient and in the interests of justice to entertain the point'. One factor to bear in mind is that the parties to litigation, especially those who are well resourced and represented by competent counsel, are ordinarily bound by their forensic choices at trial." (footnotes omitted).
No explanation was advanced in written submissions or evidence before this Court as to why the breach of fiduciary duty claim had not been agitated at first instance. In oral submissions, junior counsel who appeared for the Company at first instance candidly accepted that it had not occurred to him that such a claim could be made.
Claims alleging breach of fiduciary duty are invariably factually intensive and, not infrequently, legally complex. They may raise issues of informed consent, implied authorisation or subsequent ratification.
In the present case, there may also have been a live question as to whether or not any such claim was barred in equity by analogy with s 15 of the Limitation Act 1969 (NSW) as the underlying loans to which the claim attached were made well over six years before proceedings had commenced and, of course, the period was even longer since they were sought to be introduced into the current case: see Short v Crawley (No. 30) [2007] NSWSC 1322 at [746]; Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435; [2014] NSWCA 181; Sze Tu v Lowe (2014) 89 NSWLR 317; [2014] NSWCA 462 at [357], [379] and [387]; and see generally M Leeming, 'Not Slavishly Nor Always' - Equity and Limitation Statutes in P S Davies, S Douglas and J Goudkamp, Defences in Equity (2018, Hart Publishing) (Defences in Equity) at 293-309. Alternatively, a defence of laches may have been available, given the passage of time since the loans were made. The availability of such a defence may also involve difficult legal and factual questions: see L Ho, The Importance of Being Earnest: the Doctrines of Laches and Acquiescence in Defences in Equity at 311-329.
That the posited claim would also require careful factual contextualisation further emerges from the primary judge's observation in relation to a submission advanced on the Company's behalf at first instance. At [64] of his first judgment, the primary judge said: "Mr Tyson's further submission that loans to Peter, other than on an arm's length basis, would not have been in the Company's interests and that Marie would not have been party to them seems to me to disregard the fact that the Company's interests reflected its constitutional arrangements, its nature as a family company and the fact that Marie was in fact party to other arrangements that conferred benefits on her and other family members other than on arm's length terms."
Senior counsel for Peter submitted, and I accept, that, if otherwise established and not statute barred (by analogy), the breach of fiduciary claim would place upon Peter the burden "to prove… the informed consent of long-dead people to transactions decades ago, when there is no suggestion that Peter had any reason to expect that such a claim would ever be made". That, it was submitted, would be unfairly burdensome. Again, I agree with this submission.
It was for this reason that I joined in the Court's order that the Company's Amended Notice of Appeal which sought to introduce the breach of fiduciary duty claim be dismissed as incompetent.
GLEESON JA: My reasons for joining in the orders made on 17 March 2020 accord with those of Bell P.

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