Definitive global law guides offering comparative analysis from top-ranked lawyers
CHAMBERS GLOBAL PRACTICE GUIDES
International Fraud & Asset Tracing 2026
Definitive global law guides offering comparative analysis from top-ranked lawyers
Contributing Editor Simon Bushell Seladore Legal Limited
Global Practice Guides
International Fraud & Asset Tracing
Contributing Editor Simon Bushell Seladore Legal Limited
2026
Chambers Global Practice Guides For more than 20 years, Chambers Global Guides have ranked lawyers and law firms across the world. Chambers now offer clients a new series of Global Practice Guides, which contain practical guidance on doing legal business in key jurisdictions. We use our knowledge of the world’s best lawyers to select leading law firms in each jurisdiction to write the ‘Law & Practice’ sections. In addition, the ‘Trends & Developments’ sections analyse trends and developments in local legal markets. Disclaimer: The information in this guide is provided for general reference only, not as specific legal advice. Views expressed by the authors are not necessarily the views of the law firms in which they practise. For specific legal advice, a lawyer should be consulted. Content Management Director Claire Oxborrow Content Manager Jonathan Mendelowitz Senior Content Reviewers Sally McGonigal, Ethne Withers, Deborah Sinclair, Stephen Dinkeldein, Vivienne Button and Sean Marshall Content Reviewers Lawrence Garrett, Marianne Page, Heather Palomino, Alison Moore, Adrian Ciechacki and Michael Irvine Content Coordination Manager Nancy Tsang Senior Content Coordinators Carla Cagnina and Delicia Tasinda Content Coordinator Joanna Chivers Head of Production Jasper John Production Coordinator Genevieve Sibayan
Published by Chambers and Partners 165 Fleet Street London EC4A 2AE Tel +44 20 7606 8844 Fax +44 20 7831 5662 Web www.chambers.com
Copyright © 2026 Chambers and Partners
Contents
INTRODUCTION Contributed by Gareth Keillor and Simon Bushell, Seladore Legal p.5
HONG KONG Law and Practice p.149 Contributed by Holman Fenwick Willan INDIA Law and Practice p.168 Contributed by AZB & Partners Trends and Developments p.189 Contributed by AZB & Partners ISRAEL Law and Practice p.195 Contributed by Chen, Yaari, Vaki & Co.
AUSTRALIA Law and Practice p.9 Contributed by HFW
BAHAMAS Law and Practice p.29 Contributed by Graham Thompson
BRAZIL Law and Practice p.42 Contributed by Duarte Forssell Advogados Trends and Developments p.58 Contributed by Duarte Forssell Advogados
ITALY Law and Practice p.208 Contributed by LAWP Studio legale e tributario Trends and Developments p.226 Contributed by Fornari e Associati Studio Legale MONACO Law and Practice p.233 Contributed by Donald Manasse Law Offices POLAND Law and Practice p.244 Contributed by KW Kruk and Partners Law Firm Trends and Developments p.258 Contributed by KW Kruk and Partners Law Firm
CAMEROON Law and Practice p.63
Contributed by Maaron Law Firm Trends and Developments p.78 Contributed by Maaron Law Firm CANADA Law and Practice p.84 Contributed by Baker McKenzie CAYMAN ISLANDS Law and Practice p.94 Contributed by Appleby Trends and Developments p.107 Contributed by Appleby CHILE Trends and Developments p.113 Contributed by Winter Etcheberry CHINA Trends and Developments p.117 Contributed by Secretariat
PORTUGAL Law and Practice p.263 Contributed by Rogério Alves & Associados Sociedade de Advogados, SP, RL Trends and Developments p.277 Contributed by Rogério Alves & Associados Sociedade de Advogados SP, RL SAUDI ARABIA Law and Practice p.284 Contributed by Mohammed AlDhabaan & Partners Eversheds Sutherland Trends and Developments p.299 Contributed by Mohammed AlDhabaan & Partners Eversheds Sutherland
CYPRUS Law and Practice p.123 Contributed by George Z. Georgiou & Associates LLC
SINGAPORE Law and Practice p.304 Contributed by Rajah & Tann Singapore Trends and Developments p.317 Contributed by Rajah & Tann Singapore
GREECE Law and Practice p.137 Contributed by ANAGNOSTOPOULOS
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Contents
SOUTH KOREA Law and Practice p.322 Contributed by D&A LLC
SWITZERLAND Law and Practice p.335 Contributed by Monfrini Bitton Klein and Ardenter Law Trends and Developments p.350 Contributed by Canonica Valticos Carnicé & Associés UK Law and Practice p.355 Contributed by Seladore Legal Trends and Developments p.370 Contributed by Penningtons Manches Cooper LLP
USA Law and Practice p.377 Contributed by MoloLamken LLP
USA – ILLINOIS Trends and Developments p.394 Contributed by Hilco Global Professional Services
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INTRODUCTION Contributed by: Gareth Keillor and Simon Bushell, Seladore Legal
Seladore Legal is an international disputes law firm specialising in complex litigation and arbitration. The firm acts for corporates, financial institutions, inves - tors, state entities and high net worth individuals in high-value and often multi-jurisdictional disputes. With offices in London, Singapore, and Milan, Se - ladore combines the agility of a focused disputes practice with the experience of lawyers who have pre - viously held senior roles at leading international firms. The team advises across a broad range of disputes,
including international arbitration, civil fraud and as - set tracing, shareholder and joint venture disputes, sanctions and regulatory matters, and investigations. Seladore regularly acts in proceedings before major arbitral institutions and courts around the world. Its lawyers bring deep experience of cross-border dis - putes and work together as a unified international team, particularly in matters involving Europe, the Middle East and the Asia-Pacific region.
Contributing Editor
Co-Author
Simon Bushell is a senior partner at Seladore Legal. He specialises in international commercial litigation and arbitration and has over 35 years’ experience in high-stakes commercial disputes work. Simon has undertaken
Gareth Keillor is a partner at Seladore Legal. He has over 20 years’ experience in a wide range of commercial disputes of varying size and complexity. With experience of litigation in both the High Court and in
investigations into complex, worldwide frauds, conspiracies and insolvencies, and has wide experience in co-ordinating parallel cross-border disputes and proceedings before a number of courts and tribunals. Prior to founding Seladore Legal, Simon spent 26 years at Herbert Smith Freehills, including as Head of Fraud and Asset Tracing, and was the chair of the London Litigation practice of Latham & Watkins.
offshore jurisdictions, as well as international arbitration, he has acted for a wide variety of international clients, from major companies to ultra-high net worth individuals. He has a particular interest in fraud cases, commercial contract disputes, shareholder disputes and disputes involving injunctive relief.
Seladore Legal Limited 20-22 Bedford Row London WC1R 4EB United Kingdom Tel: +44 020 3882 2201 Email: info@seladorelegal.com Web: seladorelegal.com
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INTRODUCTION Contributed by: Gareth Keillor and Simon Bushell, Seladore Legal
The Contemporary Setting Fraud and asset tracing disputes increasingly involve events, people, assets and information spread across multiple jurisdictions. The conduct alleged to consti - tute the fraud, the individuals or entities exercising control over the relevant corporate or financial struc - tures, the repositories of information, the assets them - selves, and the courts capable of granting effective relief are frequently located in different jurisdictions. For commercial parties, financial institutions, insol - vency office holders, investment vehicles and fidu - ciaries, the practical task is therefore not limited to establishing that a fraud has occurred. It also requires identifying where assets are held, through which legal or corporate structures they are controlled, what infor - mation can be obtained at an early stage, and which forum (or fora in many cases) is capable of granting relief that will have practical effect. Modern civil fraud practice has consequently become closely intertwined with questions of jurisdiction, interim protection, dis - closure, enforcement and, in some cases, sanctions and regulatory constraint. A related feature of modern cases is that assets are often concealed through complex legal and corpo - rate structures. In substantial civil fraud matters, the difficulty commonly lies in the relationship between nominal ownership and actual control. Analysis pub - lished by Open Ownership has noted that more than one hundred countries now maintain some form of beneficial ownership register (although many of these are not public), while also emphasising the increas - ing importance of effective cross-border data-sharing frameworks. That development is significant, but it also illustrates the point that recovery work increas - ingly proceeds through the analysis of corporate networks, open-source intelligence, control arrange - ments and intermediated holdings rather than through It follows that information is often the first substantive objective of a civil fraud claim. In major disputes, the principal difficulty at the outset may be that the claim - ant cannot yet identify all the appropriate defendants, cannot confidently locate the assets in issue, and can - not determine with certainty which jurisdiction ought the tracing of a single, isolated transfer. Information, Interim Relief and Forum
to serve as the principal forum. Analysis undertaken by the Law Commission of England and Wales in its work on digital assets and private international law has articulated a broader procedural problem in this regard. In a number of cases, courts have been asked to grant interim orders in circumstances where the claimant is unable, at the outset, to formulate a fully pleaded claim because the relevant information is held by intermediaries or concealed within complex technological or corporate structures. The proposed development of more flexible information orders reflects a recognition that, in sophisticated civil fraud litigation, information from third parties may determine not merely the strength of a claim, but whether it can properly be commenced at all. This is one reason why jurisdictions with mature sys - tems of interim relief continue to occupy a prominent place in cross-border recovery strategies. The courts of England and Wales therefore remain influential in that regard, not because every dispute belongs in England and Wales, but because the courts have tra - ditionally accepted that freezing relief and ancillary disclosure are practical instruments of asset pres - ervation and case management and can be used in support of proceedings in other parts of the world (in appropriate cases). Recent litigation concerning breaches of freezing orders in the English courts (see SIA Investment Industry v Pardus Wealth and Bryce (2025)) illustrates the continuing importance of disclo - sure obligations that accompany such orders. These obligations are intended to enable parties to police court injunctions effectively and to facilitate the trac - ing and preservation of assets. Their practical signifi - cance lies in the fact that the effectiveness of interim relief depends heavily upon the court’s willingness to insist upon candid disclosure and to respond firmly to deliberate non-compliance. The importance of forum should also never be under - estimated. Cross-border disputes frequently require careful analysis of jurisdiction, applicable law and the recognition and enforcement of judgments. In prac - tice, the selection of forum may be inseparable from questions of the availability of information, interim pro - tection and the likely ease with which a judgment or order can later be deployed elsewhere. In a modern world, where documents are electronic and can be
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INTRODUCTION Contributed by: Gareth Keillor and Simon Bushell, Seladore Legal
moved at the push of a button, and evidence by video link is commonplace and facilitated, certain of the fac - tors which previously anchored claims in a particular jurisdiction are of less weight. Enforcement and the Circulation of Judgments At the enforcement stage, recent developments in the international recognition of civil judgments have attracted attention – including the Hague Judgments Convention coming into effect in the United Kingdom in July 2025. The continuing expansion of international frameworks governing the recognition and enforce - ment of judgments suggests a gradual movement towards a somewhat more orderly environment for the circulation of civil and commercial judgments across borders, in particular, in the jurisdictions in which assets are commonly located. It would nev - ertheless be mistaken to assume that enforcement has become straightforward. Careful analysis is still required in each individual case and the enforceability of judgments and awards can vary significantly across the world. International civil fraud practice also extends beyond the straightforward enforcement of judgments. In some cases, litigation concerns the allegation that a judgment or enforcement instrument has itself been procured by fraud. Proceedings of that kind, whilst rare, illustrate that modern civil fraud practitioners have tools available to them even to challenge judg - ments and awards, an example being the English High Court overturning a USD11 billion arbitration award on the grounds that it had been obtained through false evidence and corrupt payments. Digital Assets as Part of Mainstream Recovery Work Digital assets now form part of this landscape, although they no longer warrant treatment as an exotic category. The more significant development is that digital assets are increasingly being treated within ordinary private-law frameworks. Legislative devel - opments in England, including the enactment of the Property (Digital Assets etc) Act 2025, have clarified that a digital asset is not prevented from being the object of personal property rights merely because it does not fall within the traditional categories of a thing in possession or a thing in action. The legal importance
of that clarification lies in its confirmation that novel forms of value may be protected, traced and litigated over within an established proprietary framework. The practical challenge for civil fraud practitioners lies not simply in recognising the existence of digital assets, but in addressing the jurisdictional, evidential and procedural questions that accompany them. This is still an evolving area, but one in which principles are starting to solidify. Transparency and Beneficial Ownership Beneficial ownership reform continues to play an important role in the wider evidential environment in which asset tracing occurs. Transparency initia - tives over the past decade have sought to address the longstanding difficulty created by the separation between legal title and actual control. In many jurisdic - tions, beneficial ownership registers now exist, and additional reforms have sought to improve the verifi - cation of corporate information and the identification of controlling individuals. In the United Kingdom, recent reforms have intro - duced identity verification requirements for directors and persons with significant control, forming part of a broader effort to strengthen the reliability of cor - porate information held on the public register. Such measures do not eliminate the use of corporate struc - tures to obscure ownership, nor do they resolve the uneven quality of transparency across jurisdictions. They do, however, represent a gradual movement towards a more transparent regime for corporate con - trol arrangements. Whether this will simply drive bad actors elsewhere remains to be seen. Developments within the European regulatory frame - work are also relevant. The establishment of the EU’s Anti-Money Laundering Authority (AMLA), created under the EU’s 2024–2025 AML legislative package, forms part of a broader attempt to reduce fragmen - tation within the European system and to improve supervisory co-ordination. Although these develop - ments arise primarily within the public law sphere, they influence the wider environment in which civil asset recovery takes place by shaping the availability and reliability of financial information.
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INTRODUCTION Contributed by: Gareth Keillor and Simon Bushell, Seladore Legal
Sanctions as a Source of Procedural and Practical Friction Sanctions regimes increasingly intersect with disputes, particularly where assets or counterparties are con - nected with sanctioned individuals, entities or jurisdic - tions. They may affect the identification of assets, the conduct of financial institutions or custodians, and the mechanics of payments into or out of court. Licens - ing requirements and reporting obligations may also impact the procedural conduct of litigation, including resulting in stays or delays to timetables. Funding and the Economics of Recovery The economics of civil fraud litigation also merit con - sideration. Asset tracing and recovery are frequently resource-intensive exercises involving extensive investigation, interim applications, and, in many cas - es, enforcement proceedings across multiple juris - dictions. As a consequence, litigation funding has become an increasingly visible element of the com - mercial litigation landscape. The Civil Justice Council’s 2025 review of litigation funding in England and Wales addressed the regula - tory framework governing litigation funding, includ - ing proposals for disclosure requirements, capital adequacy standards and limits on the degree of con - trol that funders may exercise over litigation strategy. Whatever form those reforms ultimately take, they reflect the extent to which funding is now regarded as an established feature of complex civil disputes, including fraud litigation, in particular, claims by office- holders (such as liquidators).
Concluding Observations International civil fraud and asset tracing increasingly intersect with adjacent areas of law and regulation. They draw upon private international law, interim relief, corporate transparency frameworks, sanctions analy - sis and the financing of large-scale litigation. The jurisdictional chapters in this guide necessarily address those matters within the context of particular legal systems. Nevertheless, certain broader themes can already be identified. Early access to information is frequently decisive. Interim relief remains central, but its effectiveness depends upon rigorous disclo - sure and compliance. Enforcement strategy must often be considered at the outset rather than at the conclusion of proceedings. Transparency reforms may also improve the evidential environment, although unevenly. Sanctions regimes may complicate other - wise straightforward recovery steps. The result is a field in which successful asset recovery increasingly depends upon procedural speed, cross- border co-ordination and a detailed understanding of the legal and corporate structures through which value is held and controlled, and the means of unrav - elling those structures.
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AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar HFW
Australia
Sydney
Tasmania
Contents 1. Fraud Claims p.11
1.1 General Characteristics of Fraud Claims p.11 1.2 Causes of Action After Receipt of a Bribe p.12 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts p.12 1.4 Limitation Periods p.13 1.5 Proprietary Claims Against Property p.14 1.6 Rules of Pre-Action Conduct p.15 1.7 Prevention of Defendants Dissipating or Secreting Assets p.15 2. Procedures and Trials p.16 2.1 Disclosure of Defendants’ Assets p.16 2.2 Preserving Evidence p.16 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties p.17
2.4 Procedural Orders p.18 2.5 Criminal Redress p.18
2.6 Judgment Without Trial p.18 2.7 Rules for Pleading Fraud p.18
2.8 Claims Against “Unknown” Fraudsters p.19 2.9 Compelling Witnesses to Give Evidence p.19 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders p.20 3.1 Imposing Liability for Fraud on a Corporate Entity p.20 3.2 Claims Against Ultimate Beneficial Owners p.21 3.3 Shareholders’ Claims Against Fraudulent Directors p.21 4. Overseas Parties in Fraud Claims p.22 4.1 Joining Overseas Parties to Fraud Claims p.22 4.2 Service of Proceedings out of the Jurisdiction p.23 5. Enforcement p.24 5.1 Methods of Enforcement p.24 5.2 Enforcement of Foreign Judgments p.25 6. Privileges p.25 6.1 Invoking the Privilege Against Self-Incrimination p.25 6.2 Undermining the Privilege Over Communications Exempt From Discovery p.26 7. Special Rules and Laws p.26 7.1 Rules for Claiming Punitive or Exemplary Damages p.26 7.2 Laws to Protect “Banking Secrecy” p.26 7.3 Crypto-Assets p.28
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AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
HFW is a leading global law firm in the aerospace, commodities, construction, energy and resources, insurance, and shipping sectors. The firm has more than 600 lawyers, including 185 partners, based in offices across the Americas, Europe, the Middle East and Asia-Pacific. HFW prides itself on its deep in - dustry expertise and its entrepreneurial, creative and collaborative culture. HFW’s fraud and insolvency
group comprises experienced commercial litigators with a particular focus on dealing with high-value, cross-border matters. The team’s expertise spans a wide range of sectors and industries, and includes litigation on behalf of administrators, liquidators, pro - visional liquidators and other office-holders, fraud- related insolvencies, fraud investigations and asset tracing.
Authors
Joachim Delaney is an experienced dispute resolution lawyer with over 25 years’ experience in mediation, expert determination, arbitration and litigation. Jo has extensive experience of commercial, construction and
Ranjani Sundar specialises in fraud, insolvency and contentious matters, including advising on corporate restructurings, cross-border
insolvencies, counterparty insolvency risk, formal insolvency procedures, preservation of rights under the Personal Property Securities Act, enforcement remedies, and all aspects of commercial litigation. Ranjani has experience in complex litigation led in the state supreme courts in South Australia, Western Australia and New South Wales, and in the federal and high courts of Australia. Ranjani’s clients include secured and unsecured creditors, financial institutions, mining companies, property developers, insolvency practitioners (receivers, administrators and liquidators), yacht owners and insurers, and debtor companies and individuals.
investment treaty arbitrations under the ICC, ACICA, SIAC, LCIA, AAA, UNCITRAL and ICSID arbitration rules, across a diverse range of industries, including energy and resources, construction and infrastructure, as well as telecommunications and information technology. Jo was one of Australia’s members of the ICC Court of Arbitration from 2016 to 2024. She is the Chair of ACICA’s Professional Advisory Council, a member of the ACICA Practice and Procedures Board and the ERA Pledge Steering Committee.
HFW Level 10, 126 Phillip Street Sydney NSW 2000 Australia
Tel: +61 2 9320 4600 Fax: +61 2 9320 4666 Email: reception.sydney@hfw.com Web: www.hfw.com
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AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
1. Fraud Claims 1.1 General Characteristics of Fraud Claims In Australia, fraud is criminalised at a federal and state level, by: • Parts 7.3–7.7 of the Criminal Code Act 1995 (Cth) (the “Criminal Code”); and • the provisions of the criminal legislation in each state (Criminal Code 2002 (ACT) Part 3.3; Crimes Act 1900 (NSW) Part 4AA; Criminal Code Act 1913 (WA) Section 409; Criminal Code Act 1899 (Qld) Section 408C; Criminal Code Act 1924 (Tas) Sec - tion 253A; Criminal Code Act 1983 (NT) Section 43AGA and 43AH-L; Criminal Law Consolidation Act 1935 (SA) Section 139; Crimes Act 1958 (Vic) Sections 81–82). There are many words used to define or capture the act of “fraud” in Australian law, including “dishonesty”, “deception” or “moral turpitude”. Fraud prosecutions are both various and flexible in assisting victims. The main offences that arise in rela - tion to fraud are: • obtaining property by deception (Section 134.1 (1) of the Criminal Code); • obtaining a financial advantage by deception (Sec - tion 134.2 (1) of the Criminal Code); • general dishonesty – obtaining a gain (Section 135.1 (1) of the Criminal Code); • general dishonesty – causing a loss (Section 135.1 (3) of the Criminal Code); and • general dishonesty – causing a loss to another (Section 135.1 (5) of the Criminal Code). Notably, in Nadinic v Drinkwater (2017) 94 NSWLR 518, Leeming JA summarised key concepts relevant to a claim of fraud in common law and in equity, as follows (at (22)): “For present purposes, it will suffice to distinguish the two senses in which ‘fraud’ is used in civil litigation which correspond to different meanings at law and in equity. The difference turns on the state of mind of the person said to have committed fraud. At common law, ‘fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless
whether it be true or false’” – Derry v Peek (1889) 14 App Cas 337 at 374. The contrast with equity was explained by Viscount Haldane LC in Nocton v Lord Ashburton [1914] AC 932 at 953–954: “[i]n Chancery the term ‘fraud’ thus came to be used to describe what fell short of deceit, but imported breach of a duty to which equity had attached its sanction.” His Lordship emphasised that a person who misconceived the extent of the obliga - tion which a court of equity imposed upon him or her, “however innocently because of his ignorance”, was taken to have violated an obligation which he was taken by the court to have known, and with the result that the conduct was labelled fraudulent. He said of fraud in this sense at 954 that “what it really means in this connection is, not moral fraud in the ordinary sense, but breach of the sort of obligation which is enforced by a Court that from the beginning regarded itself as a court of conscience”. On a smaller scale, the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (ACL), provides protections to consumers including, amongst other things, in respect of mis - leading and deceptive conduct. Since 1 July 2021, a consumer is defined as any person: • who acquires goods or services for an amount not exceeding AUD100,000; or • who, where the amount of goods or services exceeds AUD100,000, acquires the goods or services for personal, domestic or household use (Section 77A of the Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020). Section 18 of the ACL contains a general prohibition against a person/company, in trade or commerce, engaging in conduct that is misleading or deceptive, or likely to mislead or deceive. Additionally, Section 29 (1)(d) of the ACL contains a specific prohibition against a person/company, in trade or commerce, in connec - tion with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply of goods or services, making a false or misleading representation that a particu - lar person has agreed to acquire goods or services.
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AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
Although Section 29 uses “false or misleading” rather than “misleading or deceptive”, the Australian courts have held that there is no material difference between the two phrases ( ACCC v Dukemaster Pty Ltd [2009] FCA 682; ACCC v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73; REA Group Ltd v Fairfax Media Ltd [2017] FCA 91, [13]) and claimants often plead breaches of both provisions. Common law misrepresentation overlaps with the statutory provisions and is relevant in circumstances where the statutory provisions do not apply, including where the claims exceed the monetary limits stipu - lated. Common law misrepresentation involves (i) the giving of false information by a party (or their agent) to an innocent party before a contract is made; and (ii) the statement inducing the innocent party to enter into a contract. A misrepresentation may be innocent, neg - ligent or fraudulent with the crucial difference being whether the person making the statement believed the statement to be true at the time of making the statement. 1.2 Causes of Action After Receipt of a Bribe The decision of the Supreme Court of the United King - dom in FHR European Ventures LLP & Others v Cedar Capital Partners LLC [2014] UKSC 45 (FHR) resolved the debate in the UK surrounding the rightful owner of a bribe that has been paid to an agent. The Supreme Court unanimously held that where an agent accepts a bribe or secret commission, it is held on trust for the agent’s principal who is entitled to a proprietary interest in the benefit. Whilst English law is not bind - ing in Australian courts, the decisions are nonetheless persuasive and it is likely that the findings in the FHR case would apply equally in Australia. An example of the application of this principle is found in Twigg v Twigg (2022) 402 ALR 119 at 186; [2022] NSWCA 68 [184] where it was observed by Brereton JA (Bell CJ and Payne JA, agreeing) that “In my judgment, a claim for proprietary relief against an accessory is within the analogy: it is a claim for the accessory to account for the trust property it has received, by restoring it to the trust. As the Supreme Court of the United Kingdom has observed, ‘the expression equitable accounting can encompass both proprietary and non-proprietary claims’. The defaulting party is ‘liable, at the option of
the cestuis que trust, to account either for the value... or... for the thing itself...’ (emphasis added).” The causes of action available to claimants whose agent has received a bribe include: • “Mareva” or freezing orders, and proprietary injunc - tions to freeze the bribe/commission and their traceable proceeds; • false accounting offences that exist at both the Commonwealth level and state/territory level; • criminal actions for domestic bribery under Divi - sions 141 and 142 of the Criminal Code when Commonwealth public officials are involved, or under state and territory legislation which makes it a crime to bribe public officials and private indi - viduals; • criminal actions for bribery of foreign public offi - cials under Section 70.2 of the Criminal Code; and • claims for breach of fiduciary duty where an agent is the fiduciary of the principal. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts It is well established in Australia that a third party can breach a trust either by “knowing receipt” or “know - ing assistance” ( Barnes v Addy (1874) 9 Ch App 244 (“ Barnes ”)). When either is established, this will create a constructive trust in favour of the claimant ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (“ Farah ”); Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41). Liability for knowing receipt is a category of construc - tive trusteeship which depends on the defendant having received and become chargeable with trust property, and having knowledge of the breach before parting with the property ( Barnes , 251–252). Liability for knowing assistance is more complicated and, following the Australian High Court’s decision in Farah , can be imposed if one of the following catego - ries of knowledge can be established: • actual knowledge; • wilfully shutting one’s eyes to the obvious;
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AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
• wilfully and recklessly failing to make such inquiries as an honest and reasonable person would make; and • knowledge of circumstances which would indicate the facts to an honest and reasonable person. Further, the Farah decision has created uncertainty surrounding the requirement that the breach be one that amounts to a “dishonest and fraudulent design” in the context of “knowing assistance”. Whereas the Western Australian Court of Appeal in Westpac Bank- ing Corporation v Bell Group Ltd (No 3) [2012] WASCA 157 (“ Bell ”) adopted a more relaxed test, the court in Hasler v Singtel Optus Pty Ltd (“ Hasler ”); Curtis v Sing- tel Optus Pty LtdSingtel Optus Pty Ltd v Almad Pty Ltd (2014) 87 NSWLR 609 clarified that the Bell decision did not intend to broaden the class of breaches of fiduciary duty in the context of “knowing assistance”. Notwithstanding this, in Hasler , the court found that the relevant conduct was caught within the meaning of “dishonest and fraudulent design” on any view. The Victorian Court of Appeal case, Harstedt Pty Ltd v Tomanek [2018] VSCA 84 (“ Tomanek ”), has recently provided guidance as to the liability of parties who assist or facilitate another’s fraudulent acts. In a case where a party has, by reason of a breach of fiduci - ary duty or fraudulent activity, received or otherwise profited from misappropriated funds, that party may become liable in the following ways: • “knowing assistance” in the breach – where a per - son knowingly assists with a dishonest and fraudu - lent scheme; • “knowing inducement” or immediate procure - ment of the breach – a third party may be liable as an accessory if they induce or otherwise procure fraudulent conduct or a breach of fiduciary duty; • corporate alter ego – a company will be fully liable for the profits derived as a result of fraudulent con - duct or the breach of fiduciary duty if the company is the wrongdoer’s “corporate creature or vehicle”; and • trustee de son tort – a party may be held liable as a “trustee de son tort” or “of his own wrong” where they are not a trustee but presume to act as a trustee and then commit a breach of trust or fraudulently profit from their position.
In Tomanek , the Court of Appeal held that, while the respondent (being the company secretary of the trustee company) had knowledge of the trustee company’s dishonest and fraudulent scheme, such knowledge of itself did not equate to assistance with the breach of trust. The applicant company failed to establish any “active involvement” on the part of the respondent. However, in the recent case of Lin v Chu [2025] FCAFC 130, the appellant directors of the trus - tee company were found to have negotiated, execut - ed and implemented loans that constituted breaches of trust. The Full Federal Court (at [186]) unanimously agreed that directors who intentionally cause a trus - tee company to engage in conduct in breach of trust can be personally liable for knowing assistance or knowing inducement where they acted in their own personal interest and contrary to the interests of the company. With respect to breach of fiduciary duty and knowing assistance claims, a question that may arise is wheth - er a plaintiff is entitled to obtain both the remedies of equitable compensation and an account of profits from multiple wrongdoers. In Xiao v BCEG Interna- tional (Australia) Pty Ltd [2023] NSWCA 48, the New South Wales Court of Appeal recently determined that although a plaintiff cannot obtain both equitable compensation and an account of profits from a single defendant, where multiple defendants are involved, a plaintiff is entitled to make a “split election” seek - ing different remedies from different wrongdoers. This is because the liability of the knowing recipient (who profited from their own misconduct) is different in nature and extent from the liability of the fiduci - ary (who made no profit from the default), particularly given that the knowing recipient does not owe a duty of loyalty to the principal. For this reason, seeking “a gain-based remedy from a knowing recipient is not inconsistent with a compensation remedy against the defaulting fiduciary” (at [69]). This principle was also confirmed in DC Rd DC Pty Ltd v Zhang (Trial Judg - ment) [2026] FCA 16 (at [259]). 1.4 Limitation Periods At the federal level, fraud offences have the following limitation periods:
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• no time limitation for offences where the maxi - mum imprisonment for a first offence exceeds six months; • one year after the offence was committed for offences where the maximum imprisonment is six months or less; and • one year for offences where punishment is a pecu - niary penalty and no imprisonment (Crimes Act 1914 (Cth) Section 15B). Recently, the Full Federal Court in Walker v Members Equity Bank Ltd [2022] FCAFC 184 also confirmed that there is a three-year limitation period on criminal prosecutions brought by the Australian Securities & Investments Commission (ASIC) for false or mislead - ing representations under the Australian Securities and Investments Commission Act 2001 (Cth), where time starts to run from when the alleged offence occurs. At the state level, fraud extends the limitation period in relation to the causes of action available in the Aus - tralian jurisdiction to fraud victims, which depends on the cause of action itself (tort, contract, etc) (Limita - tion of Actions Act 1958 (Vic) Section 27; Limitation of Actions Act 1974 (Qld) Section 38; Limitation Act 1985 (ACT) Section 33; Limitation Act 2005 (WA) Sec - tion 38; Limitation of Actions Act 1936 (SA) Section 25; Limitation Act 1974 (Tas) Section 32, Limitation Act 1981 (NT) Section 42; Limitation Act 1969 (NSW) Section 55). For example, Section 55 of the Limitation Act 1969 (NSW) provides that the relevant limitation period for actions based on fraud or deceit, or actions where the identity of a person against whom a cause of action lies is fraudulently concealed, only starts running from when a “person having (either solely or with other per - sons) the cause of action first discovers, or may with reasonable diligence discover, the fraud, deceit or concealment”. 1.5 Proprietary Claims Against Property Where the misappropriated property can be suffi - ciently identified (whether it be within mixed funds, property that is substituted for the original, or any pro - ceeds from the sale of the property) and the claimant can establish a proprietary entitlement to that property via tracing rules, the court will exercise its equitable
jurisdiction to recognise the proprietary claim and will grant an appropriate remedy in the circumstances. The exception to this is where the claimant seeks a remedy against a bona fide purchaser for value of the property without notice of the claimant’s equitable interest. In RnD Funding Pty Limited v Roncane Pty Limited [2023] FCAFC 28, the Federal Court of Australia recently confirmed that a pre-existing fiduciary duty between the party asserting the equitable proprietary right and the party who holds or has disposed of the original property is not a requirement for tracing in equity. Rather, it is the nature of the equitable property rights that forms the foundation of tracing. There are complex apportionment and priority rules which exist for the proceeds of fraud that have been mixed with other funds. If the recipient purchases something valuable with misappropriated funds from a mixed account, the claimant may be entitled to claim a charge on the asset purchased, provided the asset is identifiable ( Re Oatway [1903] 2 Ch 356 applied recently in In re Renewable Energy Traders Pty Ltd (in liq) (ACN 140 736 849) [2019] 140 ACSR 466; [2019] FCA 1795). If the claimant’s property is traced to a third party, whether the claimant has any proprietary claim depends on whether the third party was a bona fide purchaser of the property or a mere volunteer ( Commonwealth Bank of Australia v Saleh & Ors [2007] NSWSC 903). The claimant may not claim against a bona fide purchaser for value, who had no notice of the existence of a prior interest. On the other hand, where third parties receive prop - erty as volunteers, they may be liable as construc - tive trustees. In this case, the claimant and third party would share the property in proportion to their contri - butions ( In re DiplockDiplock v Wintle [1948] Ch 465 cited in Commonwealth Bank of Australia v Saleh & Ors [2007] NSWSC 903). In circumstances where the third party uses the claimant’s money on improving its own assets, the claimant will not be entitled to any proportionate share in the increased value of the asset ( In re DiplockDiplock v Wintle [1948] Ch 465 cited in Commonwealth Bank of Australia v Saleh & Ors [2007] NSWSC 903).
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1.6 Rules of Pre-Action Conduct There are no specific rules of pre-action conduct that apply prior to the commencement of fraud claims. However, jurisdictions do impose formalities that are to be completed prior to or at the time civil proceed - ings are commenced more generally. Specifically, the Civil Dispute Resolution Act 2011 (Cth) (CDRA) requires applicants to file a “genuine steps statement”, which sets out the steps taken by the parties to resolve the dispute or otherwise explain why no such steps have been taken (in the case of fraud claims, the urgency of the matter or anonymity of the fraudster may prevent the parties from taking “genuine steps” before commencing proceedings). Section 4 (1) of the CDRA outlines examples of genu - ine steps that a person can take to resolve a dispute, including: • notifying the other person of the issues that are, or may be, in dispute, and offering to discuss them, with a view to resolving the dispute; • responding appropriately to any such notification; • providing relevant information and documents to the other person to enable the other to understand the issues involved and how the dispute might be resolved; • considering whether the dispute could be resolved by a process facilitated by another person, includ - ing an alternative dispute resolution process; • if such a process is agreed to: (a) agreeing on a particular person to facilitate the process; and (b) attending the process; • if such a process is conducted but does not result in resolution of the dispute – considering a different process; and • attempting to negotiate with the other person, with a view to resolving some or all of the issues in dis - pute, or authorising a representative to do so. A party that does not file a genuine steps statement, or that has not taken genuine steps to resolve a dis - pute, will not be prevented from commencing a claim in the Federal Court of Australia. However, the court may take this into account when exercising its pow - ers, including its discretion to award costs.
Generally speaking, the courts of the states/territo - ries do not impose similar formalities on prospective claimants. 1.7 Prevention of Defendants Dissipating or Secreting Assets Freezing orders can be obtained in each Austral - ian jurisdiction to prevent the loss or dissipation of assets (Uniform Civil Procedure Rules 2005 (NSW) Part 25 Division 2; Uniform Civil Procedure Rules 1999 (Qld) Chapter 8 Part 2 Division 2; Uniform Civil Rules 2020 (SA) Chapter 10 Part 2 Division 5; Supreme Court Rules 1987 (NT) Regulation 37A.02; Rules of Supreme Court 1971 (WA) Order 52A; Supreme Court Rules 2000 (Tas) Part 36 Division 1A; Court Procedure Rules 2006 (ACT) Part 2.9 Division 2.9.4 Sub-division 2.9.4.2; Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 37A.02). Freezing orders may be obtained on an interim basis pending the outcome of a final hearing. The court has a discretion to grant a freezing order. In accordance with Part 25 Division 2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in order to obtain a freez - ing order, the applicant must: • show that there is a good arguable case against the wrongdoer; • show that there is a real risk the wrongdoer is likely to dissipate the assets; • where an order is sought against a third party, show that the third party is holding, using or is otherwise in possession of the asset; and • address discretionary concerns, such as the form of the order and the value of the relevant assets. Freezing orders are classified as “in personam” orders, meaning that their operation is concerned with individuals rather than with specific assets. This dis - tinction is significant, as it means that orders are not limited to within Australia (that is, a “domestic freezing order”); rather, the orders may also deal with assets that are located overseas (ie, a “worldwide freezing order”) provided that the court is satisfied that the order “is undoubtedly relevant to the exercise of the court’s discretion to grant the order” ( Deputy Commis- sioner of Taxation v Huang [2021] HCA 43 [30]).
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There are also court fees associated with the granting of a freezing order. The court will not grant a freez - ing order without the applicant providing the usual undertakings as to damages ( Frigo v Culhaci (1998) NSWCA 88; Air Express Ltd v Ansett Transport Indus- tries (Operations) Pty Ltd (1981) 146 CLR 249), as in its absence if the proceedings were to fail, the respond - ents would have no remedy available to them. The court may require the applicant to make a payment to the court, or to give other security for the perfor - mance of the undertaking. It should also be noted that under Australian law, there is no need to give a cross-undertaking as to damages. In the case where a substantive respondent does not comply with the freezing order, the efficacy of the order depends upon compliance by third parties. This is due to the fact that the effect of a freezing order is not confined to the parties, but extends to include a third party where a freezing order has also been made against them or notice of the order is given to the third party. In the latter case, the third party is not bound by the order but will be guilty of contempt of court if it does anything to support the breach. Spe - cifically, the third party may be penalised in the form of a committal, sequestration or fine. Similarly, where a defendant refuses or neglects to do any act within the time specified in this order for the doing of the act, or disobeys the order by doing an act which the order requires them to abstain from doing, they will also be liable to imprisonment, sequestration of property or other punishment. As outlined in Rules 25.12 and 25.13 of the UCPR (NSW), orders ancillary to a freezing order are avail - able to assist in requiring a defendant to disclose their assets. The overarching objective of an ancillary order, similar to that of a freezing order, is to prevent events that would frustrate the court’s processes. The most common form of order is that the respond - ent discloses the nature, location and details of their assets. By requesting that the defendant disclose the nature of their assets, this allows for the identification of third parties such as banks and financial interme - 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets
diaries who have custody of the assets and enables notice of the order to be given to these parties to bind them to the order ( Universal Music Pty Ltd v Sharman License Holdings Ltd (2005) 228 ALR 174, 181 [20]) (“ Universal Music ”). In the case where there is a failure on the part of the defendant to disclose their assets at all or in a timely fashion, leave is likely to be granted to cross-examine a deponent on an assets disclosure affidavit ( Universal Music at 184 [28]). Failure to comply with the require - ments to give disclosure, or provision of false or mis - leading information, is likely to give rise to a charge of contempt. Penalties for a charge of contempt may include the sequestration of assets, the imposition of a fine or even imprisonment. In most cases, it is left up to the offended party to enforce contempt. In First Class Securities Limited v Global Future Holdings Pty Ltd (Freezing Orders) [2026] FCA 48, the Federal Court referred to commentary by Moore J in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1587; 228 ALR 174 at [20] as to the impor - tance of asset disclosure to give efficacy to a freezing order and that failure to comply with orders requir - ing a party to provide such disclosure may expose a party to contempt orders. Ultimately, the court found that the respondent’s pattern of non-compliance and dishonesty (including failure to comply with orders requiring asset disclosure) supported the making of freezing orders. 2.2 Preserving Evidence There are several forms of key interim relief available to claimants in order to preserve evidence. The two common remedies available to the claimant are known as a freezing order (Mareva injunction) or a search order (Anton Piller order), both of which are sought on an ex parte basis. Details of a freezing order and the requirements that must be met in order for such an order to be granted are outlined in 1.7 Prevention of Defendants Dissi- pating or Secreting Assets . Additionally, a claimant may obtain a search order, in order to enter premises and inspect, remove or make copies of relevant documents or specified things in circumstances where it is feared that those docu -
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ments or things might be destroyed or suppressed. The availability of search orders came after the deci - sion in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The key matters the court will take into consideration when determining whether or not to grant a search order include whether: • there is a strong prima facie case; • the damage suffered by the applicant is serious; • the defendant is in clear possession of incriminat - ing documents or items in general; and • there is a real possibility that the defendant might destroy, or otherwise cause to be unavailable, important evidentiary material that is in the defend - ant’s possession. It is incumbent on the applicant of an ex parte search order (or a freezing order) to ensure they have fully disclosed all facts material to the determination of the application to the court, including any defences available to the respondent and any correspondence exchanged between the parties relating to the dispute. This was emphasised in Direct Flow Pty Ltd t/a Arthur Rubber v Andrew Peterson t/a Maxx Rubber [2023] NSWSC 318, where the New South Wales Court of Appeal refused to grant the plaintiff access to materi - als collected on the execution of a search order. The court considered that the plaintiff’s non-disclosure to the court of communications between the parties prior to the application of the search order was mate - rial in that (i) it did not bring to the court’s attention matters which the defendant may have tendered as evidence; and (ii) if the relevant information had been disclosed, there was a high probability that the court would have dismissed the original search order appli - cation. In Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206, the Federal Court noted that courts have discretion upon discovering a material non-disclosure to set aside search orders, although “different courts and commentators have identified there to be differ - ent approaches to the exercise of the relevant discre - tion, some adopting a narrower approach and others a broader approach” (at [19]). A claimant may also seek other forms of interim relief to preserve evidence. Specifically, these orders include detention, custody or preservation of property
that is relevant to the proceedings by way of an inter - locutory injunction or the appointment of a receiver. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Before the commencement of proceedings, evidence may also be obtained through the application for pre- action discovery from relevant third parties. Specifi - cally, a claimant is able to apply for a Norwich Pharma - cal order (derived from the case of Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133) if the court has determined that “the interests of justice are relevant to the exercise of the judicial discretion and in considering the interests of justice the judge must consider whether the applicant is left without an effective remedy, if the order sought is not made” ( Re Pyne [1007] 1 Qd R 326, 331). Upon the successful grant of a Norwich Pharmacal order, which will occur following satisfaction of the three threshold conditions (see A Nelson & Co Limited v Martin & Pleasance Pty Ltd [2021] FCA 228, [76] cit - ing Popplewell J in Orb ARL v Fiddler [2016] EWHC 361 at [82]–[88]), the third party who is involved in a transaction must provide information to the claimant that would be relevant to a claim. This includes the identity of the wrongdoer. For example, by requiring the disclosure of relevant information, this order can be used to trace the disposition of money that has been obtained fraudulently. Where an order permits that material evidence can be obtained from a third party, the material is only to be used with regard to the particular proceedings for which the order was made, and should not be used for other purposes without the permission of the court. Subsequently, where a proceeding has already begun, a party to the proceedings can issue a subpoena to relevant third parties in order to produce documents to the court and/or attend court to give evidence. For the subpoena to be valid it must be issued for a legiti - mate forensic purpose and documents that are to be sought must be identified with a reasonable level of particularity. Where an order is made for a person to appear or disclose documents, a restriction on such material may arise by way of the privilege against self-incrimination (refer to 6.1 Invoking the Privilege Against Self-Incrimination ).
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