Fiduciary relations - defences

Question 1

what did the Boulting v ACTAT 1963 say about defences/ excuses?

(previous 1896 was that courts always very sceptical of excuses)

Answer 1

If the person entitled to the
benefit of the rule is content with that position and
understands what are his rights in the matter, there is
no reason why he should not relax the rule, and it may
be very much to his advantage to do s

Question 2

which case said ‘[T]he real evil is not the payment of money, but the secrecy attending it’?

Answer 2

Shipway v Broadwood (1899)

Question 3

which case said:

• [F]ull and frank disclosure of all material facts
• If the principle is fully informed and autonomy is not undermined

Answer 3

Kuys [1973]

Question 4

which case said:

• [T]he principal must ‘fully understand what he is concurring in’
• Not as simple as giving basic info - has to be clear the principle understands, not just be informed

Answer 4

Re Pauling’s ST [1962]

Question 5

what did the Gwembe Valley v Koshy (No 3) (2003) say about disclosure?

Answer 5

• Not only the existence of the interest, but also its extent, must be disclosed
  
  • So saying ‘I’m going to take a few percent commission’ isn’t okay, need to have hard facts, exactly hoe much commission, in this example

Question 6

what happened in the extent of the consent case of Ross River Ltd v Waveley Commercial Ltd [2013]?

Answer 6

What is permitted never wider than the terms of the agreement and is often narrower.
- Fiduciary allowed to take specific percentage and they went beyond that
- Courts didn’t accept defence
Needs to be fully informed so might end up even narrower

Question 7

what happened in the extent of consent case of Kelly v Cooper (1993)?

Answer 7

If necessary for the engagement, consent can be implied, though it is likely to be very strictly limited.

- Very high bar, narrow scope, a neccessity
- Buyer of houses, went to bermuda and bought 2 houses dealing with the defedant estate agents, the houses belonged to differetn dellers - the agent was a fiduciary to the 2 sellers
- Possibility of confict of duty from one seller to another
- Buyer interested because the 2 houses are adjacent - agent has ability to drive the price up which would get agent better comission - but that in the interest of both sellers
- But in interest of easy life angent might not want to raise the price and just get an easy sale - conflict as agnet interested in getting a surer comission as well as higher one - theoretical conflict
- Agent didn’t get fully informed consent of sellers
- Sounds like there was duty and a breach - remedy?
- Court said there was implied consent - estate agents must be free to act otherwise they will be unable to perform their function - refer to need for confidentiality in this business
- Courts though it was absolutely necessary for these arrangements to be permitted very narrow principle, only for multiple seller, not to allow take a secret or extra commission

Question 8

what happened in the rejected causation defence of Murad v Al-Saraj [2005]?

Answer 8

 Causation defence rejected.
 I.e. no defence that F could and would have made some or all of the profit without breaching in any case.
- 2 claimants, the murad asisters that went into business with Al - came down to 50 50 profit split between murad and al for a hotel
- Al took secret comisison of 500,000 - there was complicated fid relation
- But no consent to the secret comission
- Al pushed the causation point - had they known, the sisters would have proceeded but they would have got more than a 50% share on the deal
- Al argued only the small advange he made from the breach should be taen as he wouldve made an advangtage anway
Court said no as fid is supposed to act as a deturrent - so they didn’t allow this causation defence and he had to give back the entire secret profit rather than just some of it as he wanted