I have added a new article to my website reviewing last week’s important High Court decision in the Amerind appeal – Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth  HCA 20 (Amerind). The full article can be accessed here.
I have added a new article to my website reviewing last week’s important High Court decision in the Amerind appeal – Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth  HCA 20 (Amerind). The full article can be accessed here.
This morning the High Court has handed down judgment dismissing the appeal from the decision of the Victorian Court of Appeal in Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq)  VSCA 41; (2018) 54 VR 230, which itself was the appeal of the decision of Robson J in Re Amerind (receivers and managers apptd)(in liq)  VSC 127; (2017) 320 FLR 118.
The bench comprised Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Whilst the decision to dismiss the appeal was unanimous, three separate judgments were written: one by Kiefel CJ and Keane and Edelman JJ, another by Bell, Gageler and Nettle JJ and the third by Gordon J. The decision is: Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth  HCA 20.
My fuller review of the decision will follow. For now, some highlights –
More to follow.
The High Court of Australia will be handing down judgment in the Amerind appeal this Wednesday 19 June 2019. Watch this space.
In the meantime, for my review and analysis of the Victorian Court of Appeal decision in Amerind which is the subject of this appeal see here.
For my article considering the Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both Amerind and Killarnee see here.
For those who want more, the submissions that have been filed for each of the appellant (creditor Carter Holt Harvey Woodproducts Australia Pty Ltd), the first respondent (the Commonwealth of Australia, which advanced $3.8m for former employees of the company under FEGS) and the second respondent (the Receivers of Amerind Pty Ltd (Receivers & Managers appointed)(in liquidation)) may be read on the High Court website here.
For now, I note that the submissions for the appellant creditor identified the following three issues for consideration in the appeal –
The appellant submitted, inter alia, that –
The appellant submitted that if either of these challenges be upheld, the Court of Appeal’s decision cannot stand.
The Commonwealth identified two issues for consideration in the appeal –
The Commonwealth submitted inter alia that –
We await Wednesday’s judgment with interest.
The first few days of next week are shaping up to be pretty big. As has been well covered in the press, the final report by of the Banking Royal Commission has now been handed to the Governor-General and will be publicly released on Monday afternoon 4 February 2019 at 4.10pm, coinciding with the sharemarket close. Reportedly Commissioner Kenneth Hayne’s final report stretches to more than 1000 pages.
Then on Tuesday 5 and Wednesday 6 February 2019 is the hearing of the High Court appeal in Amerind, set down for 2 days. To refresh your memories, for my review and analysis of the Victorian Court of Appeal decision in Amerind see here, and for my article considering the Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both Amerind and Killarnee see here.
For those who want more, the submissions that have been filed for each of the appellant (creditor Carter Hold Harvey Woodproducts Australia Pty Ltd), the first respondent (the Commonwealth of Australia, which advanced $3.8m for former employees of the company under FEGS) and the second respondent (the Receivers of Amerind Pty Ltd (Receivers & Managers appointed)(in liquidation) may be read on the High Court website.
The Amerind appeal to the High Court of Australia has reportedly been listed for a 2-day hearing on 5 and 6 February 2019. Watch this space.
In the meantime, for my review and analysis of the Victorian Court of Appeal decision in Amerind see here, and for my article considering the Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both Amerind and Killarnee see here.
For those who want more, the submissions that have been filed for each of the appellant (creditor Carter Holt Harvey Woodproducts Australia Pty Ltd), the first respondent (the Commonwealth of Australia, which advanced $3.8m for former employees of the company under FEGS) and the second respondent (the Receivers of Amerind Pty Ltd (Receivers & Managers appointed)(in liquidation)) may be read on the High Court website.
Last Friday Derrington J in the Federal Court in Queensland tackled this question which remains unresolved in Australia, in Lane (Trustee), in the matter of Lee (Bankrupt) v Commissioner of Taxation (No 3)  FCA 1572. That is, when a payment is recovered as an unfair preference, and the original payment out was of trust moneys applied in payment of trust debt/s, does the recovered money become impressed with the trusts once again, or does it form part of the bankrupt’s general estate? (Or, on a liquidation, the company’s?) As a fungible, of course the funds recovered are not the same funds as those paid to discharge the debt.
Mr Lee was the sole trustee of the Warwick Lee Family Trust. Prior to his bankruptcy, Mr Lee operated the business of a Subway franchise in the suburb of Brassall in Queensland on behalf of the trust. In his capacity as trustee he employed a number of staff and incurred a number of significant liabilities. In the course of the administration of Mr Lee’s bankrupt estate, the Bankruptcy Trustees recovered an unfair preference payment of $322,447.58 from the ATO, which had been paid by Mr Lee in discharge of tax liabilities arising from the operation of the Subway franchise. Of this sum, $171,659 had been paid using Mr Lee’s own money to pay this tax debt, and the balance of $150,778.58 had been paid from funds of the trust. The Bankruptcy Trustees had apportioned the unfair preference recovery accordingly between Mr Lee’s personal estate on the one hand and the trust on the other.
The question was whether they were right to do so. The debate centred on the recovery of payment of trust money, and whether the Bankruptcy Trustees were correct in their treatment of the $150,778.58 as becoming trust money “once again” upon its recovery.
In broad terms, the Bankruptcy Trustees submitted that the funds recovered by them were impressed with the terms of the trust such that they (in the shoes of Mr Lee) would only be entitled to use them to discharge liabilities owing to trust creditors. His Honour noted the Trustees also seemed to submit that the trust creditors would be entitled to be subrogated to the equitable lien which attached to those funds in support of the trustee’s right of exoneration (at ).
The Commissioner generally submitted that the monies repaid by him were not subject to the terms of the trust and was available to be used by the Bankruptcy Trustees to meet the claims of all creditors (at ). The Commissioner submitted that although the trust funds were paid to him by Mr Lee as trustee utilising the right of exoneration, when an equivalent amount was repaid, the money was held free of all trust obligations and could be used to discharge the debts of non-trust creditors (at ).
As Derrington J observed at  that to date there is no sufficiently authoritative statement on this topic.
His Honour’s key reasoning is at . He observes that attention needs to be focused on the entitlement to recover the sum paid from trust funds pursuant to Mr Lee’s entitlement to exonerate himself in respect of debts incurred in his capacity as trustee. Mr Lee’s entitlement to use trust funds only arose by reason of his position as trustee and because the debt arose from the administration of the trust. He concludes that the right to recover the payments of trust money from a transaction which was avoided was a right which was held for the benefit of the trust. Hence that right of recovery would be trust property vested in the trustee in that capacity and not in his / her /its personal capacity. “Rights which accrue from the performance of trust obligations tend to be trust property”, he adds.
At  his Honour concludes: “It would appear to be axiomatic that the right to receive repayment from the Commissioner consequent upon the avoidance of the preference payment was a right which vested in Mr Lee qua trustee such that the right is property of the trust, albeit one in which Mr Lee also had a beneficial interest.” He takes the view that at the very least, the right to receive the funds would be subject to the fiduciary duty that Mr Lee is not to profit from his position as trustee (at ).
Derrington J’s conclusion meant that the Trustee’s of Mr Lee’s bankrupt estate were correct to apportion the unfair preference recovery between the trust and Mr Lee’s general estate, in accordance with the source of the original payments that had been avoided. That is, the impugned payments of trust monies recovered as unfair preferences were to be treated as held for the benefit of trust creditors only (see ).
This should provide some guidance to bankruptcy trustees where the bankrupt had been a trustee who made preferential payments prior to bankruptcy.
However the question is more likely to arise in the corporate context, and will be particularly acute where a company was trustee of more than one trust, or also acted at times in its own capacity. The difficulty here is that some of his Honour’s reasoning was particular to the bankruptcy context (see -), and it is unclear if it would apply in the same way in the corporate context. Once again, because the Corporations Act fails to grapple explicitly with the liquidation of trustee companies and the issues which arise where trusts are involved, we are left with the question unresolved. Directions may need to be sought.
His Honour observes at  that the Bankruptcy Act confers no right of recovery or cause of action on the Bankruptcy Trustee (s 122 simply operates to avoid the preferential payments). It follows from this, his Honour says, that the Bankruptcy Trustee’s claim to recover the money is derivative upon a general law right acquired from the bankrupt. His Honour goes on to conclude that this right of the bankrupt is trust property which vests in the Bankruptcy Trustee by virtue of s 58 of the Bankruptcy Act (at ).
However unlike the Bankruptcy Act, s 588FF of the Corporations Act does provide a right of recovery and to seek other orders. For unrelated reasons , pursuant to s 588FF the right to bring the application is that of the liquidator, but the Court’s power is inter alia to order payment to the company . It is unclear whether the Courts would take the view where the impugned payment out had been a payment of trust money, that the rights of recovery under s 588FF are themselves trust property. And whether it would follow that any unfair preference recoveries received by a liquidator which had originally been payments out of trust moneys, were themselves subject to the obligation to use them in the manner required of the original funds, being for the purposes of discharging trust debts only, rather than available to the company in liquidation’s creditors generally.
Derrington J’s view expressed more than once was that neither a trustee, nor anyone claiming through it, has an entitlement to profit from their position as trustee and recover funds that had been a payment of trust moneys for their personal use (see eg at ). Perhaps this will inform the approach the Courts take to this difficult question.
Current state of uncertainty in the liquidation of trustee companies and the bankruptcy of individual trustees
Given that this case decides a question which leads to a conclusion as to whether unfair preference recoveries are available to all creditors or only trust creditors, one more point should be noted. This is a Federal Court bankruptcy decision (in Queensland). For most of Australia, on the liquidation of a trustee company, proceeds of the trustee’s right of exoneration and supporting lien are not generally available for distribution to non-trust creditors. They may only be used to pay trust creditors. This was confirmed by the Full Federal Court in March of this year in Killarnee – Jones (Liquidator) v Matrix Partners Pty Ltd; Re Killarnee Civil and Concrete Contractors Pty Ltd (in liq)  FCAFC 40; (2018) 354 ALR 436 (Killarnee). See my distillation of the propositions for which Killarnee stands as authority here, and my article reviewing the judgment and considering each of those propositions in more detail here.
In Victoria, however, a five member bench of the Court of Appeal in February of this year in Amerind concluded on this issue that until a subsequent appellate decision decides otherwise, Re Enhill continues to apply in Victoria and should continue to be followed by trial judges here, and the proceeds of the trustee’s lien on a bankruptcy or liquidation are available for division amongst the company’s creditors generally, not only among trust creditors – Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq)  VSCA 41; (2018) 354 ALR 789 (Amerind). See my article reviewing that judgment here. Derrington J’s disapproval of this position can perhaps be seen in his observation at  that: “In general terms, the decision in Amerind concluded that a corporate trustee’s right of exoneration, being the entitlement to use trust funds to pay trust debts, transmogrifies on insolvency into a right to use trust funds for the [trustee company’s] non-trust debts.”
Of course Amerind dealt with other issues as well, principally whether a trustee’s right of indemnity is property of the company, and whether upon the liquidation of a trustee company the distribution of property is governed by the statutory priority regime. Special leave to appeal to the High Court in Amerind has been sought and in August 2018 was granted, although the appeal has not yet been heard. **Update: The High Court appeal was heard on 5 February 2019. As at the date of writing this update (15 Feb 19) the HCA decision is pending.
I note too that Derrington J’s earlier decision in the bankruptcy of Mr Lee dealing with whether trust assets can be used to pay all creditors or only trust creditors, and whether the scheme of priority in s 109 of the Bankruptcy Act applies to trust assets / proceeds of the trustee’s right of indemnity and lien – Lane v Deputy Commissioner of Taxation  FCA 953; (2017) 253 FCR 46 – has been appealed by the Commissioner. However given the granting of leave to appeal to the High Court in Amerind the Lane appeal it is not presently being progressed (see ).
Earlier this morning special leave to appeal to the High Court was granted from the Victorian Court of Appeal’s decision in Amerind. The bench comprised their Honours Gageler, Edelman and Nettle JJ. The transcript is not yet available on Austlii. Their Honours did not need to hear from counsel for Carter Holt Harvey Wood Products Pty Ltd, the creditor who had applied for special leave to appeal.
The five-member Victorian Court of Appeal decision from which special leave to appeal was granted can be read here: Commonwealth of Australia v Byrnes and Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers apptd)(in liq)  VSCA 41 (Amerind).
My review and analysis of that decision can be read here. For my article considering the Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both decisions see here.
In the wake of a fraud the missing money has sometimes vanished for good – spirited overseas perhaps or lost to the fraudster’s gambling habit. There may be a lack of other assets held by the fraudster against which any judgment could be executed. This is why claims that can be made against third parties who were not the fraudsters themselves but were sufficiently involved in what happened, can be so important. In some circumstances, even where they did not receive the stolen or misappropriated money, the third party’s involvement as an accessory is such as to make them liable, and losses can be recovered from them.
On Tuesday the Victorian Court of Appeal handed down its decision in Harstedt Pty Ltd v Tomanek  VSCA 84. It is a significant judgment for their Honours’ remarks as to the different forms of accessorial liability for breach of fiduciary duty – it is not confined only to the second limb of Barnes v Addy (knowing assistance). Further, the judgment is significant for the principles it identifies as to what will constitute “assistance” for the purposes of the second limb (knowing assistance). There is also useful guidance in relation to the five Baden catetogories of knowledge relevant to knowing assistance.
The judgment was unanimous. The bench comprised their Honours Santamaria, McLeish and Niall JJA. I will briefly summarise the facts and decision in this case, before laying out the learnings to be gained from this judgment.
The appellant Harstedt Pty Ltd had invested $250,000 in one of those investment schemes which in hindsight was probably too good to be true. Investors were promised sizeable profits to be generated by the investment of capital by a humanitarian organisation. Investors deposited money into a CBA account in the name of the corporate vehicle Apollo Development Enterprises Pty Ltd, which they were told was a ‘non-depleting amount’; the funds were to be held inviolate and were not to leave the account. They were told CBA had agreed to lend three times the amount held in the account, which presumably was to be used to generate profits via the investment platform. In the event, however, the funds (over $4m) were transferred to an account in Spain where they vanished without a trace.
Harstedt sued the company Apollo and others associated with Apollo, including the company secretary Mr Tomanek. Harstedt made various claims, including fraudulent breach of trust by Apollo and a claim against Mr Tomanek for knowing assistance under the second limb of Barnes v Addy. Harstedt was successful at trial against Apollo, but dismissed the claim against Mr Tomanek. Harstedt appealed.
On appeal the Court of Appeal held that Mr Tomanek knew of the essential facts which constituted the dishonest and fraudulent breach of trust by Apollo (see -). However the appeal failed, primarily on the basis that Harstedt had not established “assistance” on the part of Mr Tomanek. Their Honours held that on the evidence, and on the case as advanced (see below), Harstedt had not established anything beyond knowledge on the part of Mr Tomanek of Apollo’s dishonest and fraudulent design. That knowledge, in and of itself, did not facilitate Apollo’s breach of trust and cause the loss arising therefrom. On the evidence, it was insufficient to constitute “assistance” in the relevant sense (see -).
1.Fraud may give rise to different claims against third party accessories
Note that on the facts of this case, the claim of knowing receipt (first limb of Barnes v Addy) was not considered, nor was there any question of tracing or following the money. This appeal decision only considered the case where a third party may be liable as an accessory to another’s breach of trust or fiduciary duty.
As their Honours acknowledged, the state of the law on accessorial liability in this context has been riddled with uncertainty and disunity; they set out the relevant authorities and case law in footnotes which I have not reproduced here.
Their Honours observed at  that there are different forms of accessorial liability for breach of fiduciary duty, which must be kept distinct. Their Honours identified two forms of liability and went on to describe two other situations in which accessorial liability for breach of fiduciary duty may arise. The two forms of accessorial liability their Honours set out were –
The two “other situations” their Honours discussed at  in which accessorial liability for another’s breach of fiduciary duty may arise were –
I will not launch into a doctrinal debate about these forms of liability here, although I note that pleadings in these cases need to be carefully considered and framed. However it is worth pausing to comment further on the basis of liability for number 1 immediately above – where the third party is the corporate alter ego of the wrongdoer. Regarding that type of case, it has been noted it is ‘rather artificial’ to use Barnes v Addy to explain this liability (see  of Grimaldi.) Having said that, in Grimaldi, Mr Grimaldi’s company Murchison Pty Ltd was found liable for Mr Grimaldi and Mr Barnes’ diversions of money away from Chameleon Pty Ltd…under both limbs of Barnes v Addy (knowing assistance and knowing receipt). Murchison Pty Ltd was also found liable for aiding and abetting the contraventions of ss181 and 182 of the Corporations Act committed by Mr Barnes as was Mr Grimaldi. (See - where the trial judge’s findings are set out, and the Full Court’s agreement with those findings at - of Grimaldi). As an aside, I note that the defendants had claimed the diverted funds were payments properly posted to their loan accounts – see what the Full Federal Court had to say about that at  – the funds were not stolen but they were misappropriated.
I note too that in 2012 in Grimaldi, the Full Federal Court outlined four “quite different manifestations of [third party] participation” in another’s breach of fiduciary duty or breach of trust, rendering them liable in equity. These were framed somewhat differently to those identified here by the Victorian Court of Appeal; for those interested, see Grimaldi at -. My 2012 article discussing the Full Federal Court’s decision in Grimaldi may be read here, and my 2012 discussion of the issue of de facto directors and officers as dealt with in the judgment may be read here. Mr Grimaldi was unsuccessful in obtaining special leave to appeal to the High Court – see here.
As noted above, this week’s judgment in Harstedt is also significant for the principles it identifies as to what will constitute “assistance” in the breach of trust or fiduciary duty for the purposes of the second limb (knowing assistance).
Their Honours acknowledged that the authorities offer little guidance, and that plainly whether a third party has assisted relevantly is a question of fact for each case. However their Honours distilled two principles as having emerged from the authorities and commentary on this point (at -) –
Before any bankers reading this sit up in alarm at their Honours’ comment under principle 1 immediately above, it should be noted that a finding of assistance alone will not be enough to found liability as an accessory. Indeed there are four necessary elements of liability under the second (knowing assistance) limb of Barnes v Addy. These were set out by their Honours at , citing Farah and Grimaldi, and are –
Turning briefly then to the last of these – knowledge.
3.The Baden categories of knowledge
Their Honours’ judgment in Harstedt also provides useful guidance in relation to the five Baden categories of knowledge relevant to ‘knowing assistance’ at -.
The Baden categories are –
Their Honours noted that the first two speak for themselves. In Harstedt, their Honours’ findings as to Mr Tomanek’s knowledge of the three essential facts which constituted the dishonest and fraudulent breach of trust by the company Apollo fell into the first and second categories (see -).
As to the third category – wilfully and recklessly failing to make inquiries as an honest and reasonable person would make – their Honours observed that this ‘involves such a calculated abstention from inquiry as would disentitle the third party to rely upon lack of actual knowledge of the trustee’s or fiduciary’s wrongdoing’ (see ).
I pause to note that last year in Sino Iron Pty Ltd v Worldwide Wagering Pty Ltd  VSC 101, Hargrave J found the third category of knowledge on the part of the director and general manager of the betting company which had unknowingly received over $2m in stolen funds, as at the date they then credited it to the fraudster’s betting account. His Honour took the view that based on what (little) they did know, the inquiries they made were manifestly inadequate. He held that they ought to have made the ‘simple inquiry’ of identifying and contacting the depositors of the stolen funds, and asking if they intended to pay the money to the sports betting company for the benefit of the customer claiming it. My article reviewing and analysing that case can be read here.
As to the fourth category – knowledge of circumstances which would indicate the facts to an honest and reasonable person- their Honours observed that this category ‘is designed to prevent a third party setting up his or her own “moral obtuseness” as the reason for not recognising an impropriety that would have been apparent to an ordinary person’ (see ).
The fifth category derives from the doctrine of bona fide purchaser for value without notice (see ).
The Court of Appeal noted that the High Court in Farah endorsed the Baden scale and indicated that knowledge falling within any of the first four categories, but not the fifth, represents the law in Australia (see ).
Conclusion…and a window left open – omission/acquiescence
The Victorian Court of Appeal’s judgment in Harstedt is worthwhile for practitioners to be across. Their Honours’ remarks as to the different forms of third party liability as an accessory to breaches of fiduciary duty or trust are instructive. Further, the judgment contains useful guidance as to what will constitute “assistance” for the purposes of the second limb (knowing assistance), and as to the five Baden catetogories of knowledge.
One final aspect: Their Honours noted that Harstedt advanced its case as to “assistance” as one of active involvement by Mr Tomanek. Their Honours remarked that Harstedt did not contend that Mr Tomanek’s “assistance” comprised his acquiescence with the breach, which acquiescence caused the loss. Therefore, so their Honours noted, it was unnecessary to decide whether an omission or acquiescence may amount to “assistance” under the second limb (see ). Their Honours observed that the authorities on this point appear to be in disharmony. They set out a list of such cases at footnote 84.
Clearly their Honours have left this matter open. It raises interesting questions as to whether a failure to stop a fraud could constitute “assistance”; whether sitting on one’s hands could be held to be enough to facilitate a fraud, sufficiently to amount to “assistance” and satisfy that element of a claim for liability in respect of the fraud against a third party. I would speculate that may depend upon the knowledge of the third party. If the third party’s level of knowledge of the fraud reaches a high enough Baden category, then a failure to take any action to stop the fraud may be more likely to be found to constitute sufficient “assistance” in the fraud. It will be interesting to see what happens in the cases to come.
Papers have reportedly been filed with the High Court by creditor Carter Holt Harvey Wood Products Pty Ltd. Watch this space.
In the meantime, for my review and analysis of the Victorian Court of Appeal decision in Amerind see here, and for my article considering the recent Full Federal Court decision in Killarnee and the landscape for liquidating corporate trustees of trading trusts in light of both decisions see here.
I have added a new article to my website reviewing the recent, important decision of Jones (liquidator) v Matrix Partners Pty Ltd, re Killarnee Civil & Concrete Contractors Pty Ltd (in liq)  FCAFC 40 (Killarnee). The full article can be accessed here.
As noted in my alert, last week the Full Court of the Federal Court handed down its much anticipated decision in Killarnee. The issue for the Full Court broadly was how a liquidator is to deal with trust assets in the liquidation of a company which had been trustee of a trading trust.
The three member bench comprised Allsop CJ, and Siopis and Farrell JJ. Unlike in the decision last month in Amerind where the Victorian Court of Appeal spoke with a single unanimous voice, their Honours of the Full Court wrote three separate judgments, with the Chief Justice writing the lead. Overall, while there is sound reasoning and analysis and useful clarity on some points, the Full Court’s decision may be likely to create some other concerns for insolvency practitioners dealing with trustees of trading trusts.
There was unanimity on some issues but not others, and there was a sting or two in the tail. The issue now appears to be resolved that a trustee company’s right of exoneration over the trust assets is property of the trustee company. The Full Court was clear in their view in obiter that trust assets may only be applied in payment of trust debts in exercise of a trustee’s right of exoneration (not non-trust debts). Their Honours also addressed and made clear their position as to the lack of liquidators’ power to sell trust assets, and the need for court order.
On the scheme of priority issue: the majority of the Full Court ostensibly joined with Amerind and resolved some of the uncertainty of the past few years as to whether liquidators should apply the statutory scheme of priorities under the Corporations Act when liquidating companies which have conducted their business through trading trusts and exercising the trustee’s right of exoneration over trust assts to pay creditors. The majority held that the scheme of priorities applies…mostly. This was one of the stings. Whilst the priority afforded employee entitlements was endorsed, as was that for liquidators’ costs, their Honours in the majority queried whether every element of the priority scheme in s 556 should apply in every case (indeed whether some such debts would even qualify as trust debts in every case) – see the discussion below. Their Honours’ comments and the doubt created in this area suggest that court directions are likely to be advisable for a liquidator dealing with trading trust assets on the question of distribution. Resolution of this uncertainty either by the High Court or by legislation – the latter of which was strongly encouraged by Farrell J – would be welcome, although it may need to be carefully done. This also is discussed in the article.
The specific questions considered by the Full Court on the particular case before them, and their Honours’ answers to those questions, are already set out in my alert of last week and can be read here.
To get straight to it, on my analysis, the propositions to be distilled from the Full Court’s decision in Killarnee are these –
The full article can be accessed here.