A finding of illegality is not by itself fatal to a claim for relief; a trial judge must undertake a proportionality analysis considering the factors identified in Nelson v Nelson and Fitzgerald v FJ Leonhardt before refusing to enforce contractual or other rights on the ground of illegality. The defence of illegality must be pleaded with adequate particularity, and where the allegation involves serious criminal conduct, the Briginshaw heightened standard of satisfaction applies. A finding of conspiracy to defraud cannot be sustained on a plea that merely alleges non-disclosure of income.
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