Xiao v BCEG International (Australia) Pty Ltd

The appeal concerned a dispute between Xiao (the claimant) and BCEG International (Australia) Pty Ltd (the respondent), and other parties not named in the provided text. The claimant alleged that directors had dissipated company monies and that corporate accessories had received these monies with knowledge of the dissipation. The claimant sought various equitable remedies against these parties. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the claimant was entitled to pursue different remedies against different wrongdoers, specifically whether a "split election" was permissible. This involved determining the liability of defaulting fiduciaries for equitable compensation and the liability of knowing recipients for an account of profits. The court also considered whether a positive fiduciary duty existed to obtain informed consent to a conflict of interest and duty, and whether the failure to disclose the dissipation of company monies was causative of subsequent losses. Finally, the court addressed whether the appellants had been denied procedural fairness by the primary judge assessing an account of profits at trial rather than in a post-judgment inquiry, given they had notice of the claim and evidence but did not file responsive evidence.

The Court of Appeal allowed the appeal on one ground, while dismissing it on others. The court set aside several orders made by the primary judge concerning the assessment of remedies and directed the parties to bring in short minutes of order regarding the amount of a monetary judgment and compound interest. The court also noted that the question of costs in both the Court of Appeal and at first instance would be determined on the papers, with parties to file written submissions.