Whether it is necessary to identify a founding act of wilful default for account to occur
Quick Take
1While it will ordinarily be undesirable for a court to order accounts on the footing of wilful default without at least one specific act of wilful default having been found or admitted, consent orders directing such an account are valid until set aside and the accounting can proceed without first identifying a founding act, particularly where the parties agreed that at least one act would have been proved at trial.
2Where accounts are taken on the footing of wilful default without a proved or admitted founding act, an appropriate process must be established for allegations of wilful default to be made, responded to, and resolved, with the burden of proof remaining on the plaintiffs.
3The question whether a court has power to order accounts on the footing of wilful default absent proof or admission of a specific act was expressly left open due to the absence of a contradictor.
