Dear Ger;
Not at all sure if this might help, but there may be some comments in Levy & Watt & Anor [2014] VSCA 60 (14 May 2014) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2014/60.html which
may assist. There the court held that in a case of conversion (a strict liability tort of course) that where a thief had stolen a painting but the identity of the thief was not known, that the limitation period did not run until the true owner knew the identity
of the thief, on the basis that the very act of secretly stealing something meant that the action had been “fraudulently concealed”.
I am not sure what action the principal in your example may have against the innocent payer fooled by the dishonest agent, but if there is an action it is possible it would be governed by the decision here and the limitation period not
operate as a bar.
Regards
Neil
NEIL FOSTER
Associate Professor
Newcastle Law School
Faculty of Business and Law
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Dear all,
I'd be really grateful for any references to authorities (academic or
judicial) on the limitation period applicable where a claim is brought
against the briber (payer of secret commission) for loss caused to a
principle because a secret commission was paid to his agent.
Presumably, if the secret commission was paid and received where both
payer and payee were acting dishonestly, the cause of action would be
based on
fraud (and the limitation period could be extended accordingly).
However, what is the position where:
(i) the Commission is paid honestly, the payer honestly if wrongly
believing that the payment would be (perhaps had already been)
disclosed?
(ii) Is the matter different if the agent is held to have acted
fraudulently but the payer is not? (Is the fraudulent motive of the
agent attributable to the payer of the commission)?
(iii) If the agent's nondisclosure of the commission is held to be
fraudulent concealment for limitation purposes, is that state of mind
attributed to the payer, so that the limitation period is extended as
against the payer of the secret commission too?
Many thanks
Ger