The Court of Appeal has with one hand given to Sydney liquidator Mitchell Ball and with the other hand denied him.
In an extensive judgment delivered yesterday, NSW Supreme Court of Appeal judges Fabian Gleeson, Mark Leeming and Anna Mitchelmore rejected Ball’s submissions that primary judge Julie Ward erred last year when she found that Ivana Cassaniti, wife of alleged carousel fraud perpetrator Gino Cassaniti, wasn’t in on it herself.
In satisfying herself as to Ms Cassaniti’s credit Justice Ward had had the benefit of observing the former book keeper at Banq Accountants & Advisors over two days of cross examination.
In his capacity as liquidator of multiple entities including companies over which Ms Cassaniti was the sole listed signatory on relevant bank accounts Ball believed Ms Cassiniti was knowingly involved in the transfer of large sums of money to other entities to the detriment of those companies and the tax office.
“Her Honour’s findings of credit in favour of Ivana Cassaniti were wrong,” Ball said in submissions to the appellant court.
“A sub-issue of that is that the extent to which her Honour relied upon Ivana Cassaniti’s demeanour was excessive in the face of documentary and other evidence raising compelling inferences to the contrary.” Ball said.
The appellant judges however reasoned that Ball had failed to put before them evidence sufficient to overturn Justice Ward’s positive impression of Ms Cassaniti as a reliable and truthful witness.
His submissions they said “tended to put to one side the magnitude of the findings required to be made by this Court in order to render Ivana liable under the second limb of Barnes v Addy, or through s 79 of the Corporations Act.
“That submission does not alter the fact that the liquidator asks this Court to make findings against Ivana which are tantamount to dishonesty, without having seen her cross-examination, and to overturn the favourable finding of the primary judge who did see her cross-examination,” the judges said.
“An appellate court, while it must conduct a “real review” of the trial and give effect to the appropriate findings which should be made, is not in the same position as the judge at first instance.
“The appellate court “must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record.
“These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share”, the appeals court said.
The decision in respect of Ball’s appeal is contained in 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  NSWCA 160.
While Ball’s bid to implicate Ivana, the appellant judges in the related judgment of Cassaniti v Ball as liquidator of RCG CBD Pty Limited (in liq) and related matters; Khalil v Ball as liquidator of Diamondwish Pty Ltd (in liq) and related matters  NSWCA 161 spared him a ton of grief, refusing appeals brought by Gino Cassaniti, co-Banq principal Faouzi Khalil and others who argued that Justice Ward erred in refusing their “release” defence which they said applied because when Ball released Frank Criniti who was said to be primarily liable for relevant breaches of fiduciary duty, that release had the effect that Ball could no longer pursue claims for knowing assistance against other parties said to be accessorily liable for such breaches.
The appeals court rulings come more than a year after Justice Ward’s primary judgment In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq)  NSWSC 966.
Her honour found upon the application of Ball in his capacity as liquidator of the entities that there had indeed been breaches of director’s duties as identified by Ball; that monies that should have gone to the tax office didn’t and that the directors and various associates owed the entities, and ultimately the tax office, many millions.