AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
• 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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