Equity and Trusts: Barnes V Addy Second Limb

Introduction This paper examines the information and scope of assistant obligation under the flash offshoot of Barnes v Addy as it endorses in twain England and Australia. As to the law of nature in England, the focus will be on the rearticulation of the formula of abetter _or_ abettor liability under the second limb as res publicad in princely Brunei striving business organizations Sdn Bhd v Tan. In smashicular, it will film the extent to which the decision has submitd inconsistencies in earlier role and remedied those issues propounded to be inherent in the traditional face of the article of belief. At this stage, this traditional principle remains good law in Australia.However, as suggested in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, there is potential for the side orgasm to be adopted in the Australian context. Such an adoption may be advisable in light of the judicial and extra-judicial commentary suggesting that the Jewish-Orthodox flak is in conc omitant non properly aligned with faithful principles. The discussion of this possibility involves non only an assessment of the advantages and disadvantages of each advancement, hardly also a finis as to the extent to which the separate application of each approach could offspring in a divergent break throughcome.The development of the second limb of Barnes v Addy in Australia- knowing assistance The classic authority on the batch in which 3rd furcateies will be held accountable for their involvement in a breach of trust or fiducial duty is the English encase of Barnes v Addy. It was in this case that superior Selbourne LC articulated the much(prenominal) cited and analysed statement of principle that has come to form the modern law trangers be non to be made constructive trustees merely because they act as the agents of trusteesunless those agents receive and become chargeable with some part of the trust property, or unless they assist with intimacy in a dish su perstarst and fraudulent creation on the part of the trustees. This statement has come to be understood as plying liability to be imputed on a c every last(predicate)er in devil distinct set, where the deuce-ace party either knowingly receives trust property, or assists with knowledge in a breach of trust or fiducial duty.This paper run acrossks only to consider the latter. In what ostensibly remains the definitive case on this second limb of Barnes v Addy in Australia, the senior high school Court in Consul cultivation Pty Ltd v DPC Estates Pty Ltd, (Consul using v DPC) not unlike other cases at the time, focussed predominantly on the train of knowledge which would be sufficient to attract accessory liability in the circumstances before them.The primary question was not one of the double-tonguedy or otherwise of the actions of the third gear party, but of that third partys knowledge of the dishonesty of the fiduciary. The majority, it seems, realised that the terms c onstructive notice and veritable notice did not in themselves comprise the wished sophistication for relations with the matter of the knowledge of the third party.They sort of expressed the required story of knowledge within particular parameters, with neither Stephen J nor Gibbs J will to extend these parameters to include a negligent mishap to inquire on behalf of the third party. In Equiticorp pay Ltd v Bank of sassy Zealand, Kirby P (in dissent) indicated support for the Consul experiment of knowledge, and attempted to clarify the judgement in Consul festering v DPC with reference to the decision in Baden, Delvaxs & Lecuit v Societe Generale pour Favoriser le breeding du Commerce et de LIndustrie en France SA (Baden).He equated the degrees of knowledge delimitate out by the High Court in Consul evolution v DPC with the commencement quadruple categories as stated in Baden thereby confirming that both(prenominal)(prenominal) actual and constructive knowledge, but not constructive notice, would constitute the requisite degree of knowledge necessary to render a third party liable under the second limb of Barnes v Addy. Similar decisions accept been made in afterwards cases where Consul schooling v DPC has been decl ard authority on the matter, although such an explicit reference to the Baden scale is not ever present.Conversely, other judges take in found the judgement in Consul Development v DPC to be inconclusive, adopting a narrow interpretation of the judgement of Stephen J and restricting the requisite knowledge only to the first three categories of the Baden scale. This inclination of an orbit toward a narrow approach increased following the decision in Royal Brunei Airlines Sdn Bhd v Tan (Royal Brunei) as courts attempted to reconcile the UK and Australian lines of authority.However in other cases, such as Gertsch v Atsas it was held that that the sufferance of the first four Baden categories was synonymous with pass judgment a standard of honesty. abandoned the discordant state of the Australian authorities, the High Court took the opportunity in Farah Constructions Pty Ltd v Say-Dee Pty Ltd, (Farah Constructions) to clarify the Australian position on knowing assistance.Their honor decl atomic number 18d, in obiter, that Australian courts should continue to follow the decision in Consul Development v DPC, thereby continuing to see as necessary the need of a dishonest number on the part of the fiduciary, and subscribing to the proposition that where the third partys knowledge falls within the first four categories of the Baden scale it will answer the unavoidableness of knowledge under the second limb of Barnes v Addy.In what has been referred to as a profound shift in the rules of judicial engagement following Farah Constructions, lower courts have regarded themselves as cause to follow the obiter of the High Court and have thus returned to an orthodox approach. However, the law in Australia is far from settled on this point and a case is yet to come before the High Court with the occurrences necessary to allow for a reconsideration of the principles enunciated by the Privy Council in Royal Brunei. The development of the second limb of Barnes v Addy in England- dishonest assistance maculation in Australia the courts are returning to an orthodox approach towards accessory liability, in England, the courts are grappling with a reformulation of the principles under the second limb of Barnes v Addy following the decision in Royal Brunei. In this case, the Privy Council refocussed the relevant examination in cases concerning liability under the second limb of Barnes v Addy away from the third partys knowledge of the trustees dishonesty, to the dishonesty of the accessory themselves.Consequently, the dishonesty (or lack thereof) of the trustee or fiduciary is unsuitable as it is the dishonesty on the part of the accessory that attracts liability. on that point is nothing new a bout the application of a dishonesty-based in enquiry into the liability of accessories to a breach of fiduciary duty, with sea captain Nicholls suggesting that before the inquiry donned its Barnes v Addy strait-jacket judges hadnt regarded themselves as confined to inquiries into the levels of knowledge of the accessory.It may even be said that the dishonesty-based inquiry had retained its place in contemporary law prior to Royal Brunei, and that it was merely obscured by the spare and more tedious indispensableness of determining the level of knowledge of the accessory. For example, in Agip (Africa) Ltd v Jackson Millet J stated There is no wizard in requiring dishonesty on the part of the principal firearm accepting negligence as sufficient for his assistant.Dishonest set aheadance of the dishonest scheme of other(prenominal) is an understandable basis for liability negligent but honest failure to appreciate that someone elses scheme is dishonest is not. This can be set a longside other cases which suggest that that the requirement of dishonesty on the part of the principle is in fact a compelling causality not to require dishonesty on the part of the fiduciary, as they are an accessory who merely needs to be is linked to the share of the principle. Millet J, except, seemingly wishes to see this principle extended, so that dishonesty is required on the part of both parties.The decision in Royal Brunei does not precisely echo this formulation of the dishonestly principle ( headmaster Nicholls ultimately went on to conclude that that the fiduciary need not be dishonest at all in assure for the accessory to be held accountable), but instead clarifies and affirms a general principle in light of other commentary on the point. Consequently, cleric Nicholls in his judgement has set out what is necessary for the inquiry into the accessorys dishonesty, stating that courts should look to determine whether the person acted as an honest person would in the circumstances in light of their actual knowledge at the time.He further explains that the question should be approached objectively and indicates that the test is not one of the liable person. He seeks to clarify this test of dishonesty with the following examples If a person knowlingly appropriates anothers property, he will not flight of steps a finding of dishonesty simply because he sees nothing defame in such behaviourHonest people do not knowingly take others propertyor participate in a transaction if he knows it involves a misapplication of trust assets to the prejudice of the beneficiaries.Nor does an honest person in such a case measuredly close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, then proceed regardless. This passage, while meant to further explain the test for dishonesty, initially seems difficult to reconcile with later comments, where his Lordship makes explicit reference to the departure from the orthodox inquiry into degrees of knowledge, stating that the word knowlingly should be avoided and that the Baden scale was best forgotten.While it seems unproblematic to abandon the Baden scale of knowledge, commentators and courts equal have found difficultly in divorcing the concept of dishonesty from knowledge itself and the headspring-nigh recent authoritative decision on the point Barlow Clowes transnational Ltd v Eurotrust International Ltd (Barlow Clowes) confirms that an inquiry into dishonesty does to some degree require an inquiry into the knowledge of the third party. Comparison of the English and Australian position star of the objectives of the court in Royal Brunei was to remedy some of the problems with the orthodox approach to accessory liability.Such problems were not only present in English courts, but have also plagued Australian courts and were not resolved in by the High Courts affirmation of the knowledge-based test in Farah Constructions. Firstly, Lord N icholls in Royal Brunei sought to realign the principles of accessory liability with good doctrines and focussed primarily on the conscience of the accessory themselves. In the orthodox approach, as expressed in Consul Developments v DPC, the inquiry is not into the state of mind of the accessory themselves but into the accessorys knowledge of anothers state of mind.It has been suggested that the inquiry has thus been misplaced, and that although it results in an indirect finding of dishonesty on the part of the accessory, it is much further removed from honorable principles than the Royal Brunei approach. Lord Nicholls also sought to do away with the awe surrounding the need for judges to distinguish between the different levels of knowledge, in particular constructive knowledge and constructive notice.However, as noted above, Lord Nicholls on several occasions makes reference to the knowledge of the accessory which is the reason that the degree to which the test of dishonesty i s divorced from an inquiry into knowledge has been questioned. However, what essential be realised here is that the inquiry into knowledge that is embarked upon as part of the dishonesty based approach is different to that which was required under the knowledge based approach.This redirection for the knowledge inquiry was first considered in Twinsectra Ltd v Yardley where a difficulty arose in determining whether Lord Nicholls had intended for an objective or subjective approach to be taken to dishonesty. In the leading judgement, Lord Hutton tendered the combined test which required that the third partys conduct be dishonest by the standards of the reasonable person as well as requiring an appreciation by the third party that by those standards his or her conduct was dishonest.This combined test endured much academic criticism and was seen as being inconsistent with the objective test enunciated by Lord Nicholls in Royal Brunei. The Privy Council, and in particular, Lord Hoffman ( who was in the majority in Twinsectra Ltd v Yardley) had the opportunity in Barlow Clowes to clarify the comments made in Twinsectra Ltd v Yardley. It was stated that the majority in Twinsectra Ltd v Yardley had, in fact, always espoused a test in line with that which was conceptualised in Royal Brunei and it was commentators who had skewed this test into a different form.Despite the contempt that many commentators had for this account, the statement of a murder principle of dishonest assistance was applauded. Incorporated in this principle was the shoemakers last that the liability of the accessory was not dependant on a requirement for fraud or dishonesty on the part of the fiduciary, but depended altogether upon whether the accessory was at fault. This is the converse position of the orthodox approach, whereby a third party can escape liability even where they know they are assisting in a breach of fiduciary duty, provided that the fiduciary was not playing dishonestly.Thomas J in Powell v Thompson held that protecting a person with a guilty conscience in this manner was not in line with equitable principles, and his consequent assertion that the conduct of the principle should be irrelevant was later approved in Brunei. One significant consequence of the divergent approaches in what are currently the UK and Australian positions on this matter would be the substantial difference in outcome in cases where the fiduciary had acted straightforwardly.Provided that all other requirements are satisfied, in the UK the accessory would be held liable however in Australia they would not. Further to this, while some Australian judges have found it difficult to distinguish the traditional approach from that of Royal Brunei, the fact that the orthodox reliance on the Baden scale restricts investigations only to knowledge and not to other attributes or types of conduct, lends weight to the argument that in certain circumstances there would be divergent outcomes of th e two approaches. Perhaps, it is best to take FarahConstructions as authority on this point, with the High Court in this case imputing that one of the reasons it is directing courts to treat the approaches distinctly is due to the potential for the different formulations of the principle to lead to different results. Conclusion In line with the arguments presented in this paper, it is submitted that the approach to accessory liability espoused in Royal Brunei is preferable to that which was propounded in Consul Development v DPC due what is an ostensible irreconcilability of the latter case with conventional equitable doctrines.This assertion turns on the manner in which the judges in Consul Development v DPC dealt with the requirement for a dishonest and fraudulent design on the part of the fiduciary as per Lord Selbourne LC in Barnes v Addy. like many other cases at the time, Consul Development v DPC was concerned more with attempts to define what Lord Selbourne had meant by a di shonest and fraudulent design rather than questioning whether it was an appropriate criterion for the imposition of liability on a third party.Consequently, when it came to fulfilling equitys calls as to inquiries into the conscience of the defendant, courts were misguided and came to focus instead on the conscience of the principle. The arguments in favour of the retention of this approach are largely set out in reliance on the requirement that the third party be implicated in the conduct of the fiduciary. However, as suggested in Royal Brunei, assistance in itself should be enough to string along a sufficient connection between the accessory and the fiduciary.It was this realisation which enabled Lord Nicholls in Royal Brunei to reformulate the principle under the second limb of Barnes v Addy so as to redirect inquiries into the minds of defendants to their appropriate place in accordance with equitable principles. Although the adoption of the approach in Brunei may not result in major shift in the law of accessory liability in Australia, its contemplation of circumstances in which the third party can be held liable even where the fiduciary is innocent would at the very least resolve the seemingly inequitable approach to this point as it stands in current Australian law. Bibliography Articles/Books/Reports Aitken, L, Unforgiven Some thoughts on Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 29 Australian Bar Review 195 Andrews, G, The redundancy of dishonest assistance (2003) 8 Conveyancing and Property Law Journal 1 Birks, P, Misdirected funds Restitution from the Recipient (1989) Lloyds Maritime & Commercial LQ 296 Chambers, R, well-read pass on Frozen In Australia (2007) 2 Journal of Equity 40 Cope, M, A comparative evaluation of developments in equitable relief for breach of fiduciary duty and breach of trust 2006 QUT Law Journal 7Cope, M, Equitable Obligations Duties, Defences and Remedies (2008), Lawbook Co, Pyrmont. Hoffman, L, The Redundancy of Knowing Assistance in Birks, P (ed), The Frontiers of Liability, (1994) vol 1, Oxford University Press, New York Dietrich, J & Ridge, P The pass of what? questions concerning third party recipient liability in equity and unjust enrichment 2007 Melbourne University Law Review 3 Harding, M & Malkin, I, The High Court of Australias Obiter Dicta and Decision-Making in Lower Courts 34 Sydney Law Review 2 Kirby, M, Equitys Australian Isolationism (2008) 8 Melbourne University Law Review 2Kiri, N, Recipient and accessory liability- where do we stand now? (2006) 21 Journal of International Banking Law and Regulation 11 Loughlan, P L, Liability for Assistance in a Breach of fiduciary Duty (1989) 9 Oxford Leg Studies 260 Mason, K, President Masons part Speech (2008) 82 Australian Law Journal 11 Ong, D, The knowledge or Role that makes a Person an Accessory under the Barnes v Addy Principle (2005) 17 Bond Law Review 6 Radan, P Stewart, C, Principles of Australian Equity instituti onalizes, (2010), LexisNexis Australia, ChatswoodSullivan, G R, Framing an Acceptable General offensive activity of Fraud (1989) 53 Journal of Criminal Law 92 Thomas, S B, Knowing Receipt and Knowing Assistance Where do we stand? (1997) 20 UNSW Law Journal 1 Thornton, R, Dishonest Assistance Guilty conscience or Guilty Mind? 2002 61 Cambridge Law Journal 3 ? Case Law Aequitas v AEFC 2001 NSWSC 14 Agip (Africa) Ltd v Jackson 1990 Ch 265 Air Canada v ML Travel Ltd (1993) 108 DLR (4th) 592 Attorney-General v corporation of Leicester (1844) 7 Beav 176 ASIC v AS Nominees (1995) 133 ALR 1Baden Delvaux Lecuit v Societe Generale pour Favorisier le Developpment du Commerce et de lIndustrie en France SA 1992 4 All ER 279 Barlow Clowes International Ltd v Eurotrust International Ltd 2006 1 All ER 333 Barnes v Addy (1874) 9 Ch App 214 Beach oil NL v pratson (1993) 115 ALR 411 Belmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980 1 All ER 393 Carl Zeiss Stiftung v Herbert Smith Co (No 2) 1969 2 Ch 276 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 Corporate Systems Publishing Pty Ltd v Lingard No 4 2008 WASC 21 Coshott v Lenin 2007 NSWCA 153Digital moving-picture show Network Pty Ltd v Hepburn (No 4) 2011 FCA 509 DPC Estates v Grey 1974 1 NSWLR 433 Eagle Trust plc v SPC Securities Ltd 1992 4 All ER 489 Eaves v Hickson (1861) 30 Beav 136 Equiticorp Finance Ltd v Bank of New Zealand (1993) 32 NSWLR 50 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Flyer v Flyer (1841) 3 Beav 141 Gertsch v Atsas(1999) 10 BPR 18,431 John Alexanders Clubs Pty Ltd v White City Tennis Club Ltd Walker Corp Pty Ltd vWhite City Tennis Club Ltd (2010) 241 CLR 1 Karak Rubber Co Ltd v Burden 1972 1 All ER 1210 Kation Pty Ltd v Lamru Pty Ltd (in liq) (No 2) 2009 NSWCA 428Lipkin Gorman v Kapnale Ltd 1992 4 All ER 451 Maher v Millenium Markets Pty Ltd 2004 VSC 174 NCR Australia Pty Ltd v Credit Connection Pty Ltd 2005 NSWSC 111 New Cap Reinsur ance Corporation Ltd v General Cologne Re Australia Ltd 2004 NSWSC 781 ninety Five Pty Ltd in liq v Banque Nationale de Paris 1988 WAR 132 Powell v Thompson 1991 NZLR 597 Royal Brunei Airlines Sdn Bhd v Tan Kok Ming 1995 2 AC 378 Selangor United Rubber Estates Ltd v Cradock (No 3) 1968 1 WLR 155 Twinsectra Ltd v Yardley 2002 2 AC 164 Voss v Davidson & Ors 2002 QSC 316 yeshiva Properties No 1 Pty Ltd v Marshall (2005) 219 ALR 11