Fatimi Pty Ltd v Bryant

Fatimi Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning claims of conspiracy to injure by unlawful means and criminal conspiracy to defraud. The respondent, Bryant, was the plaintiff in the original proceedings.

The Court of Appeal was required to determine whether the appellant had engaged in a conspiracy to injure the respondent by unlawful means, and whether there was a criminal conspiracy to defraud. Central to these issues was the question of whether the appellant's actions were aimed or directed at the respondent, and whether the appellant's purpose of protecting or advancing its own interests constituted a defence. The Court also considered the requirements for establishing a criminal conspiracy to defraud, specifically whether the victim needed to have a civil remedy and the congruence between this offence and the tort of conspiracy to injure by unlawful means. Finally, the availability of exemplary damages in circumstances where compensatory damages were not proven was to be assessed.

The Court of Appeal affirmed the primary judge's findings, holding that a conspiracy to injure by unlawful means does not require proof of a dominant purpose of injuring the plaintiff, nor is the purpose of protecting or advancing the conspirators' interests a defence. The Court found that the appellant's conduct was indeed aimed or directed at the respondent. Regarding the criminal conspiracy to defraud, the Court clarified that while dishonest means are required, the victim does not necessarily need to have a civil remedy, and the elements are not strictly congruent with the tort of conspiracy to injure by unlawful means. The Court further held that exemplary damages are not available where the underlying tort is not established and compensatory damages have not been proven.

The appeal was dismissed with costs.