Federal Court of Australia
FEDERAL COURT OF AUSTRALIA EQUITY - Fiduciary Relationship - agency to find prospective investors in units and to obtain from them and submit applications for such units to principal (insurance group) - same agent also agent for bank to obtain and submit applications from the prospective investors for finance to enable them to invest in the units - pleading that bank knowingly assisted agent to breach fiduciary duty owed to principal - whether reasonable cause of action pleaded based on second (accessory) limb of Barnes v Addy (1874) 9 Ch App 244 - scope of fiduciary duty of agent in the circumstances - whether it encompassed duty to take initiative of disclosing to principal irregularities touching the applications for finance from bank that might imperil borrowing transaction and, indirectly, investment transaction between investors and principal - whether facts pleaded giving rise to positive duty of disclosure - bank's motion to strike out pleading of Barnes v Addy liability. Australian Securities Commission v AS Nominees Ltd (1995) 62 FCR 504, applied Barnes v Addy (1874) LR 9 Ch App 244, considered BLB Corporation of Australia Establishment v Jacobsen (1974) 48 ALJR 372, distinguished Breen v Williams (1996) 186 CLR 71, applied Brickenden v London Loan & Savings Co [1934] 3 DLR 465 (PC), distinguished Chittick v Maxwell (1993) 118 ALR 728, distinguished Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41, applied McKenzie v McDonald [1927] VLR 134, distinguished National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995) 132 ALR 514, considered News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410, applied Rogers v Whitaker (1992) 175 CLR 479, considered Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815, distinguished NATIONAL MUTUAL PROPERTY SERVICES (AUSTRALIA) PTY LIMITED & ORS v CITIBANK SAVINGS LIMITED NG 765 of 1994 LINDGREN J SYDNEY 28 MAY 1998
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