Third party liability for 'knowing receipt' and 'knowing assistance' post-Grimaldi v Chameleon mining NL (No. 2)
McGowan, Claire (2012) Third party liability for 'knowing receipt' and 'knowing assistance' post-Grimaldi v Chameleon mining NL (No. 2). Honours thesis, Murdoch University.
This paper examines the position of third party liability for ‘knowing receipt’ and ‘knowing assistance’ under Barnes v Addy in Australia following the decision of the Full Court of the Federal Court of Australia in Grimaldi v Chameleon Mining NL (No 2). Grimaldi demonstrates that third party liability under Barnes v Addy is a primary, fault based liability concerned with the wrongdoing of the third party. There remains a technical distinction between the ‘two limbs’ of Barnes v Addy on the basis that a dishonest state of mind on the part of the breaching fiduciary or trustee is required to trigger liability for knowing assistance, but not for knowing receipt. Liability for both knowing receipt and knowing assistance is based on the third party’s level of knowledge relevant to the breach of trust or fiduciary duty. Knowledge falling within categories (i)- (iv) of the Baden scale, but not category (v) will trigger liability under both limbs. Corporate property misapplied in breach of fiduciary duty is treated as trust property for the purposes of third party liability under Barnes v Addy in Australia, despite recent comments of the High Court suggesting that this position may not yet be confirmed.
|Publication Type:||Thesis (Honours)|
|Murdoch Affiliation:||School of Law|
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