By Kate Boyd -
Snapshot
- A person who knowingly assists a breach of fiduciary duty will be liable to account for any benefit gained as a result of that breach.
- Whether the benefit is as a result of the breach depends on an examination of the particular facts of the case.
- If causation is established, the onus shifts to the wrongdoer to establish, by evidence, that they should not have to provide a full account of the benefit.
When will a knowing participant in a breach of fiduciary duty be liable to account for the advantage they have gained as a result of the breach? This question was recently considered by the High Court, in Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018] HCA 43. By a 4:1 majority, the Court emphasised the width of profits that can be called to account. The decision illustrates the importance of an alleged knowing participant adducing evidence as to why they should not be required to give a full account of the profits gained as a result of the breach.
