Xiao v BCEG International (Australia) Pty Ltd

(2023) 111 NSWLR 132; [2023] NSWCA 48

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Equity
2. › Equitable remedies
3. › Election between remedies
4. › Split election against multiple wrongdoers
5. › Whether claimant entitled to seek equitable compensation from defaulting fiduciary and account of profits from knowing recipient
6. › Whether gain-based remedy against knowing recipient inconsistent with compensation remedy against fiduciary
1. Equity
2. › Fiduciary duties
3. › Breach
4. › Causation
5. › Whether failure to disclose conflict of interest constitutes positive duty or defence
6. › Whether breach of fiduciary duty in relation to one transaction causative of loss on separate subsequent transaction
1. Equity
2. › Fiduciary duties
3. › Disclosure of conflict of interest
4. › Whether disclosure is a positive obligation or a defence to breach
5. › Whether failure to obtain informed consent is a breach of duty
1. Appeal
2. › Procedural fairness
3. › Whether appellants denied procedural fairness
4. › Where primary judge assessed account of profits at trial rather than in post-judgment inquiry
5. › Where appellants on notice of claim and made forensic choice not to respond

Quick Take

Multiple defendants in breach of fiduciary duty cases—comprising both fiduciaries and knowing recipients/assistants—may be subject to different remedies: equitable compensation may be sought from the fiduciary while an account of profits may be sought from the knowing recipient, without requiring election of a single remedy across all defendants.