Exemplary damages are not available in equity for breach of fiduciary duty in New South Wales, at least where the fiduciary relationship arises from a contractual relationship such as employment. The availability of exemplary damages in equity for other types of fiduciary relationships was expressly left open by Spigelman CJ. The decision confirms that the 'fusion fallacy' — treating the joint administration of law and equity as merging their distinct doctrines — is rejected in Australian jurisprudence. Practitioners seeking punitive remedies for breach of fiduciary duty must rely on existing equitable remedies (account of profits, equitable compensation with favourable causation rules) rather than exemplary damages.
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