JUNIQ • EQUITY LAW
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CHAPTER 4

Accessorial Liability and Tracing

Chapter purpose. Third-party participation in breaches of trust or fiduciary duty; Barnes v Addy categories; Australian knowing assistance and knowing receipt; the role of Farah and Grimaldi; and the first step in tracing value into substitutes.

4.1 Why accessorial liability matters

Equity would be incomplete if liability stopped with the trustee or fiduciary. Third parties may receive trust property or assist a dishonest and fraudulent design. Australian law therefore requires careful attention to the recognised Barnes v Addy categories and to the authoritative treatment in Farah Constructions. The student must distinguish receipt-based liability from assistance-based liability because the elements are not identical.

4.2 Knowing receipt

Receipt-based liability asks whether the defendant received trust or fiduciary property for their own benefit and possessed the level of knowledge required by Australian authority. A mere volunteer who receives trust property may face proprietary claims even if personal knowing-receipt liability is not established. This is why the answer must separate proprietary recovery from personal liability.

4.3 Knowing assistance

Knowing assistance focuses on participation in a trustee/fiduciary breach of the requisite character with sufficient knowledge. Farah is the controlling High Court authority in Australia and must be used with precision. Students should avoid importing looser overseas formulations without explaining their compatibility with Farah.

4.4 Grimaldi and practical characterisation

Grimaldi provides detailed Full Federal Court analysis of accessorial principles in a corporate context. It is particularly useful for understanding how knowledge can be inferred from circumstances and how third-party participation interacts with fiduciary and corporate wrongdoing.

4.5 Tracing is a process, not a remedy

Tracing identifies value as it moves from original property into substitutes. It does not itself create the final remedy. The first questions are: what property is claimed, what happened to it, can value be followed or traced into an identifiable substitute, and has the property been dissipated? Only after that process succeeds should the claimant choose a proprietary or personal remedy.

4.6 Exam method

For a third party, ask first: receipt or assistance? Then identify the primary breach, the relevant property or conduct, the defendant’s participation/receipt, the knowledge standard and the remedy. For tracing, draw the transaction chain before writing paragraphs.

Exam rule map

Leading authorities

Barnes v Addy (1874) LR 9 Ch App 244
Traditional source of the two accessorial categories: receipt of trust property and assistance in a dishonest/fraudulent design.
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
High Court authority controlling Australian knowing receipt and knowing assistance analysis.
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296
Detailed Full Federal Court treatment of fiduciary wrongdoing and accessorial liability.
Re Hallett’s Estate (1880) 13 Ch D 696
Classic tracing authority concerning mixed funds and presumptions against a wrongdoer.

Course source spine

These sources are teaching/research references. Primary legislation and judgments control where commentary differs.

FAQs — questions

FAQ 1. Is tracing the same thing as knowing receipt?

FAQ 2. Can a claimant have a proprietary claim without proving knowing receipt?

FAQ 3. Why is Farah essential?

FAQ 4. What is the best way to analyse a complex tracing fact pattern?

Multiple-choice questions

MCQ 1. Knowing assistance focuses principally on:

  1. Receipt of title only.
  2. Participation in the relevant breach with the required knowledge.
  3. Negligence.
  4. Whether a contract is in writing.

MCQ 2. Tracing is best described as:

  1. A punishment.
  2. A process for identifying value in substitutes.
  3. A type of contract.
  4. An automatic constructive trust.

MCQ 3. Farah Constructions is particularly significant because:

  1. It abolished fiduciary law.
  2. It is controlling High Court authority on Australian accessorial liability.
  3. It concerns only criminal law.
  4. It created the three certainties.

MCQ 4. Receipt-based personal liability should be kept separate from:

  1. Any analysis of property.
  2. Proprietary claims to trust property or its substitutes.
  3. Knowledge.
  4. Benefit.

Short-answer questions

Short answer 1. Explain the difference between knowing receipt and knowing assistance.

Short answer 2. Why is tracing not a remedy?

Short answer 3. What should be drawn before writing a tracing answer?

High-distinction IRAC problem

Trustee T transfers $300,000 of trust money to Company X. X’s director knows the money came from the trust and uses it to pay a debt owed by X and to purchase shares in X’s name. The director also prepares documents designed to conceal the transfer. Advise the beneficiaries on potential claims against X and the director.

Answers — next page →