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Perhaps Warman and Consul Developments are not true accessory cases, but quasi-receipt cases, where the court finds that the opportunities which are exploited in breach of fiduciary duty are not trust property and cannot be subject to ordinary receipt principles, but at the same time considers that liability ought to be "traceable" to third parties to whom the fiduciary redirects the fruits of the opportunity. Gathergood v Blundell Brown Ltd (No 2) [1992] 3 NZLR 643, CA is a case involving so-called trust property, but also assumes that the duty to account is transmissible by operation of law.

I have ceased to find it odd that the HCA pro tem finds itself free to fashion its own reasons for decision. We are told that appellate courts are there to make law. The declaratory theory, now buried, was a well-meaning lie or otherwise a naive tenet of our primitive ancestors.

Peter Watts.