The respective liabilities of dishonest fiduciaries and their knowing assistants

This article examines the relationship between fiduciary liability and knowing assistance liability. We first consider the question as one of precedent and principle. What can be gleaned from case law and theory as to the nature of the two liabilities and, therefore, how they should relate to each other? We then consider three questions concerning the interaction of fiduciary and assistant liability: (i) whether the plaintiff’s release of one party will necessarily release others involved in the same breach of fiduciary duty; (ii) whether plaintiffs can make ‘split elections’ between fiduciaries and assistants (that is, recover gain-based relief from some defendants and compensatory relief from others); and (iii) whether wrongdoing fiduciaries and knowing assistants can seek contribution from each other. Each issue has recently been considered by an intermediate Australian court, but not in completely satisfactory ways. We show how their resolution depends upon, and will contribute to, clarification of the relationship of the two liabilities.