fiduciary duties - ad hoc and or fact based relations

Question 1

which case said the categories of fid relations are not necessary closed?

Answer 1

english v dedham vale properties 1978

Question 2

what is an example of analogous engagement?

Answer 2

self appointed agent like joint venture

• doesn’t have nay legal status
• could be like a partnership or could just be like a business arrangement

Question 3

what is the main case for self-appointed agent?

where they take it upon themselves to act as agent - so close to that of fid duty it was ruled to be one

Answer 3

Boardman v Phipps [1967]

Question 4

what happened in the jopint venture akin to partnership case of united dominos v brian (1985)?

Answer 4

• Brian was company entered into joint venture, land development
  
  • UDC provided the money and other set up complicated security arrangement for developing this land
  • Because SPL went bust, if there wasn’t a fid arrangement, they would’ve ended up paying their debts in part, if there was a fid they wouldn’t have to
  • Went to high court of aus
  • There was a partnership being set up and they were going about the preliminaries for this - it required same good faith and confidence that an actual partnership would require
  • So they found there to be a fiduciary relation, meant Brian didn’t have to pay debt
    Remedy they got allowed them to avoid a lot of liabilities

Question 5

which joint venture case where they were allowed seperate ventures outside area of that venture but excluded competition within that area?

Answer 5

Global Container v Bonyad Shipping Co (1998)

Question 6

what is s1 of the partnership act 1890?

Answer 6

Not just that you share the income from the partnership, it requires much closer degree of cooperation

Question 7

what are the factors courts use to weigh up if theres a fiduciary duty owed?

Answer 7

1. An undertaking to act in the interests of another
   
   2. Delegation of power and discretion
   3. The need for self-denial (not to make a profit)
   4. Vulnerability
   5. The danger of suborning the autonomy of the principal
      (power imbalance)

Question 8

what happened in the University of Nottingham v Fishel
[2000] case?

(england leading case of Ad Hoc fid relation)

Answer 8

• Dr Fishel, known IVF doctor
  
  • Got into trouble with uni
  • Employees used to be fid but generally not anymore
  • Some more senior employees, where there is a vulnerability, trust and confidence in them, some emploees will be in fid relationship
  • Fishel was scientific director in fertility clinic, but worked on the side in overseas clinics - he brought this work to the employees he managed
  • Uni was running clinic like a business so fishel was more like a director - can there be a fid duty through analogy of directorship here?
  • No academics are considered different to company directors, they regularly take on more work
  • So that wasn’t enough - the only issue was that he diverted his team to other duties to further his own interests
    So beast examples of how employees can sometimes ow fid duty - but how analogy of categories doesn’t get you there and in this case you need to use the first principle route instead

Question 9

what happened in the successful joint venture case of ross river v waveley commerical 2013?

Answer 9

• Wasn’t by analogy to parntership the court thought there was fid duty
  
  • They had delegaed compelte control, there was no director on board to supervise
  • Ross imposed very high degree of trust in busines arrangements
    Looking at all these factors COA found wavely owed ross a duty

Question 10

what happened in the ‘sales puff’ case of sinclair invenstment v versailles trade finance (2007)?

Answer 10

• Big fraud, took money from investors and paid them back from capital, when capital ran out they tried to take money and run off
  
  • Company V was insolvent, so the perfectly good claim against them was no good couldn’t pay remedy (but company definitely did had a fid duty)
  • But Sinclair came up with clever ways to get money back - wanted to sue director personally
  • Did C (director) owe them a duty directly - he skimmed some of the money off for himself, so wasn’t insolvent
  • If there was a duty he would definitely have breach it, but it was whether there was one
  • Court looked at all facts - C developed personal relationship with advisor for Sinclair, made lots of promises, had special technical knowledge
  • Sinclair argued directors representations and actions were enough to create duty
    Court found all the actions of the director to be nothing more than sales puff, just dishonest representations of competence - it was just a bad commercial relationship

Question 11

what happened in the failed agent case of Eze v Conway (2019)?

Answer 11

• Argued there was fid duty but court disagreed
  
  • Had no legal authority to complete the transaction, his role as an agent was nothing more than chasing people up to hurry the process along
  • Can use the multifactorial approach - he didn’t have the power and discretion to bind his principle to a contract or transaction - conways also weren’t vulnerable or requiring his advice, there was no power imblance
    Good case to contrast with FHR as they did have all the powers there (10 million purchase case)