Cth v Kupang Resources Pty Ltd

• 1. APPEALS — Procedural fairness — argument raised on appeal not pleaded or argued below — prejudice to respondent — where steps may have been taken at first instance had argument been raised below — new argument not permitted to be raised on appeal
• 1. EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property” — knowledge requirement — degree of requisite knowledge — relevance of a “want of probity” — where ATO received “trust property” in satisfaction of defaulting fiduciary’s tax liabilities — where there were unchallenged findings that the ATO had actual and constructive knowledge that the funds were obtained in breach of fiduciary duty and were traceable — whether Commonwealth could rely on its statutory obligations — no special protection — knowledge requirement made out
• 1. EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property” — meaning of “trust property” — where defaulting fiduciary obtained unauthorised profits in breach of fiduciary duty — whether unauthorised profits comprised “trust property” — where unauthorised profits comprised “new property” never legally owned by the principal — discussion of principle in Keech v Sandford (1726) 25 ER 223, Furs Ltd v Tomkies (1936) 54 CLR 583, Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342 and other cases — unauthorised profits obtained in breach of fiduciary are held on trust for principal — trust arises at moment of breach — trust arises independently of curial intervention — discussion of remedial and institutional constructive trusts
• 1. EQUITY — Breach of fiduciary duty — application of first limb of Barnes v Addy — knowing receipt of “trust property” — meaning of “trust property” — whether personal remedy on defaulting fiduciary to account altered the nature of trust property — effect, if any, of such a remedy on the character of the “trust property” — prior judicial determination did not alter character of “trust property” — errant fiduciary not entitled to treat funds as if they were his property — third party knowing recipient remained liable to account

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