- April
Posted By : Ari Katsoulas
Pleading Fraud and Accessorial Liability under Barnes v Addy (Self-Note)

Per Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405:

74. Fraud must be specifically pleaded: UCPR 14.14(3). Likewise an allegation of dishonesty must be pleaded clearly and with particularity. The pleader must not use language which is equivocal, rendering it doubtful whether the pleader is in fact relying on an allegation of dishonesty: Belmont Finance Corp Ltd v Williams Furniture Ltd [1979] 1 Ch 250 at 268 (Buckley LJ). Similar principles apply to claims alleging accessory liability under Barnes v Addy: Farah at [170]; Yeshiva Properties No 1 Pty Ltd v Joan Marshall [2005] NSWCA 23 at [14] (Bryson JA; Mason P and Beazley JA agreeing)

75. One further matter must be mentioned. UCPR 15.3 requires that a pleading must give particulars of any fraud on which the party relies. Authority requires that particulars of fraud must be exactly given: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538.

99. This reflects the material distinction between facts asserted in the body of the pleading, on the one hand, and particulars, on the other. The facts asserted in the body of the pleading must be sufficient, standing alone, to make out the party’s case (whether for a remedy sought or as a factual answer in law to the previous pleading). Gaps in the pleading party’s case cannot be filled in by providing particulars: H 1976 Nominees Pty Ltd v Galli [1979] FCA 114; 40 FLR 242 at [15]-[23].

113. Thus, for the purposes of pleading a second limb claim, the categories of knowledge are: (i) actual knowledge; (ii) willfully shutting one’s eyes to the obvious; (iii) willfully and recklessly failing to make such inquiries as an honest and reasonable man would make; and (iv) knowledge of circumstances which would indicate the facts to an honest and reasonable man.

114. Farah also established that liability under the second limb of Barnes v Addy is confined to cases where the breach of fiduciary duty amounts to a “dishonest and fraudulent design”: see the analysis by Leeming JA (with whom I agreed) in Hasler v Singtel Optus Pty Ltd (Hasler v Singtel Optus) [2014] NSWCA 266 at [121]-[125]. Farah requires that such an allegation ought to be pleaded and sufficiently particularised: at [170].

Per Bryson JA in Yeshiva Properties No 1 Pty Ltd v Joan Marshall [2005] NSWCA 23:

14. The Supreme Court Rules 1970 require that allegations of fraud and of matters which may cause surprise be pleaded: Pt.16 r.2 and Pt.15 r.13(1). A claim alleging accessary liability is close to a claim of fraud, knowledge and intention are of central importance, and allegations like these must be made clearly if proceedings are to be conducted fairly. Where an equitable claim is based on alleged dishonesty, or otherwise on Barnes v Addy (1874) LR9ChApp 244, it is inappropriate that there should be anything less than a fully distinct statement in the pleading of what it is in substance that is charged against the alleged accessary. As ever where fraud is alleged, there is a need for full and clear particularity.

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