ABSTRACT
In this note we argue that Full Federal Court’s decision in RnD Funding Pty Limited v Roncane Pty Limited [2023] FCAFC 28 understates the significance of its own change to the law. This is due to overlooking a persistent fiction within the English authorities on tracing, which adopted the fiduciary requirement as a gauze over uncertain aspects of restitution cases. Australian law now adopts a realist approach which has long been called-for by academics: that the ability to trace is grounded in equitable proprietary rights. This is welcome.
Sanderson, Harry and Popescu, Sabina, Tracing Without Fiduciaries: Realism in Australian Equity (July 7, 2023), [2023] Lloyd’s Maritime and Commercial Law Quarterly 559.
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