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Law Second Year > Property Law - Fiduciaries > Flashcards

Property Law - Fiduciaries Flashcards

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1
Q

Bristol & West v Mothew general

A

Solicitor further charges

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2
Q

What judge in Bristol referred to single-minded loyalty to principle as obligation of F?

A

LJ Millett

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3
Q

What several facets of single-minded loyalty did LJ Millett give in Bristol?

A

Good faith, no profit, no conflict and no acting for self-benefit/3rd w/o principal consent

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4
Q

Who argued F is an F because subject to FD, not he other way around?

A

LJ Millett in Bristol

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5
Q

No conflict rule

A

Even if good faith, even if P better off and even if only potential, there can be NO conflict

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6
Q

What does there need to be for breach of FD?

A

Conflict + loss/profit

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7
Q

Keech v Sandford general

A

Lease infant

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8
Q

Keech v Sandford judgment

A

Inability of trust immaterial - lease on CT for infant

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9
Q

What judge in Keech said it is better for lease to run out than T take it?

A

LC King

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10
Q

Boardman v Phipps general

A

Family trust, Tom Phipps

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11
Q

What was found at first instance in Boardman v Phipps?

A

Not full disclosure to trustees

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12
Q

Decision split in HoL in Boardman

A

3:2

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13
Q

Judges in majority in Boardman

A

Cohen, Hodson and Guest

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14
Q

Judges in minority in Boardman

A

Dilhorne and Upjohn

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15
Q

Majority in Boardman

A

Opportunity came because of family trust, potential conflict enough (because bias advice) and honesty irrelevant as focus is on dishonesty

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16
Q

Minority in Boardman

A

Vital trust was not able to purchase shares

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17
Q

Boardman v Phipps judgment

A

Disgorge all profits, with liberal remuneration for work and skill

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18
Q

Bryan on Boardman

A

No explanation as to why B and TP were Fs - must have been ‘self-appointed agents’

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19
Q

Why is the no conflict rule perhaps not so strict?

A

If F wants to retain a profit, he can make full disclosure to sui juris Bs

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20
Q

FHR European v Cedar Capital on ‘no profit’

A

Neuberger confirmed ‘no profit’ is a subset of ‘no conflict’

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21
Q

What case confirmed ‘no profit’ is a subset of ‘no conflict’?

A

FHR European v Cedar Capital

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22
Q

Conaglen on no profit

A

Extension of ‘no conflict’ rule

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23
Q

Lionel Smith on no profit

A

Separate from no conflict, with different underpinnings - Keech v Sandford

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24
Q

How did Smith refer to Keech v Sandford to suggest no profit is separate from no conflict?

A

In Keech, no conflict (because couldn’t get the lease), but still required to hold on CT because profit

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25
Q

Self-dealing rule

A

T dealing with trust as both buyer and seller

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26
Q

Fair dealing rule

A

T buys beneficial interest from B

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27
Q

Tito v Waddell (No.2)

A

Self-dealing is always voidable, even if fair value

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28
Q

Re Thompson’s Settlement

A

Under self-dealing, T cannot sell trust property to company in which she is the main shareholder, managing director or other principal

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29
Q

Under self-dealing, T cannot sell trust property to company in which she is the main shareholder, managing director or other principal

A

Re Thompson’s Settlement

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30
Q

Self-dealing is always voidable, even if fair value

A

Tito v Waddell (No.2)

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31
Q

Wright v Morgan

A

Sale to spouse not prohibited by self-dealing, as long as in B’s BI

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32
Q

Sale to spouse not prohibited by self-dealing, as long as in B’s BI

A

Wright v Morgan

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33
Q

How can a transaction be set aside for failing ‘fair dealing’ rule?

A

If unfair - onus on T to establish consent was fully obtained and value of purchase fair

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34
Q

Where does the disability model still apply in remedies?

A

Rescission, account of profits and CT

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35
Q

Where does the duty model apply in remedies?

A

Equitable compensation

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36
Q

What is the disability model

A

Enforce primary duties - proscriptive, prophylactic and not dependent on causation/remoteness

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37
Q

What academic called disability model prophylactic?

A

Conaglen

38
Q

Two supporters of disability model

A

Lord Millett and Birks

39
Q

What is the duty model?

A

F committed a wrong by breaching FD, so positive, prescriptive duty to act loyally breached, leading to secondary repair duty

40
Q

Hospital Products v US Surgical

A

F owes + duty not to promote personal interests

41
Q

Koshy

A

Suggested disability/duty irrelevant for remoteness/causation for unauthorised profits

42
Q

Conaglen on duty

A

Disability will yield to BoD model in unauthorised profits

43
Q

Who argued we impose F duties to encourage people to act altruistically?

A

Frankel

44
Q

Who argued F duties are really about ‘deliberative exclusivity’?

A

Penner

45
Q

What is the idea behind deliberative exclusivity?

A

P doesn’t need to be priority, just decisions made solely with P in mind

46
Q

Re Duke of Norfolk’s ST

A

Courts can authorise remuneration in exceptional cases

47
Q

Bristol v Mothew on fiduciary remuneration

A

Consent can be implied

48
Q

What Act provides for remuneration of F in particular situations?

A

S.28 - 33 Trustee Act 2000

49
Q

What section of what Act allows professional Ts to receive remuneration even without charging clause?

A

S.28 and 29 TA 2000

50
Q

What is the basic rule on fiduciary remuneration?

A

Ts and Fs act gratuitously

51
Q

Bristol v Mothew on fiduciary relationship

A

Millett LJ required act undertaken, giving rise to relationship of trust and confidence

52
Q

Aberdeen Town Council v Aberdeen Uni

A

T and B = F

53
Q

Boston Deep Sea v Ansell

A

Agent and principal = F

54
Q

Aas v Benham

A

Partners = F

55
Q

Regal v Gulliver

A

Director and company = F

56
Q

Hilton v Barker Booth

A

Solicitor and client = F

57
Q

Name at least two cases showing settled categories of F

A

Aas v Benham; Regal v Gulliver; Hilton v Barker Booth; Boston Deep Sea v Ansell; Aberdeen Town Council v Aberdeen Uni

58
Q

Name at least two cases showing ad hoc categories of F

A

Reading v AG; JP Morgan v Springwell; Vercoe v Rutland; Murad v Al-Saraj

59
Q

Reading v AG

A

Soldier bribe checks

60
Q

JP Morgan v Springwell

A

Trust alone does not equal FD

61
Q

Vercoe v Rutland

A

Expect degree of ruthlessness in commercial dealings

62
Q

Expect degree of ruthlessness in commercial dealings

A

Vercoe v Rutland

63
Q

Trust alone does not equal FD

A

JP Morgan v Springwell

64
Q

Soldier bribe checks

A

Reading v AG

65
Q

Murad v Al-Saraj

A

F can be ad hoc - not necessarily formal (e.g. solicitor)

66
Q

F can be ad hoc - not necessarily formal (e.g. solicitor)

A

Murad v Al-Saraj

67
Q

How is the scope of F’s duty determined?

A

From party’s relationship as a question of fact

68
Q

Learoyd v Whiteley/Speight v Gaunt

A

Scope of F duty is diligence person of ordinary prudence would exercise in managing own affairs

69
Q

Re Whiteley

A

If investment, minded to make investment for benefit of others, for whom he feels morally bound to provide

70
Q

Bartlerr v Barclays Bank

A

Higher DoC from professional Ts

71
Q

Henderson v Merrett Syndicates

A

Contract can modify scope of F relationship, e.g. allow for competiton

72
Q

Hospital Products v US Surgical on scope/contract

A

F relationship cannot be imposed so as to change operation of contract

73
Q

Boardman v Phipps on consent to FD breach

A

Can get consent to avoid breach, as long as ‘full and frank disclosure’, sui juris and burden on F

74
Q

Walsh v Shanahan

A

FD end with relationship

75
Q

FD end with relationship

A

Walsh v Shanahan

76
Q

CMS Dolphin v Simonet

A

F cannot reassign post then take opportunity that arose whilst in F capacity

77
Q

F cannot reassign post then take opportunity that arose whilst in F capacity

A

CMS Dolphin v Simonet

78
Q

Contract can modify scope of F relationship, e.g. allow for competition

A

Henderson v Merrett

79
Q

who said that the 2-party rule (e.g. rye v rye) is not the fundamental reason for the self-dealing rule?

A

Conaglen

80
Q

What judge in what case thought the SD and FD rules were distinct?

A

Megarry VC in Tito v Waddell

81
Q

What case showed that SD can be overcome if B’s consent?

A

Sanderson v Walker

82
Q

Sanderson v Walker

A

SD not an issue if B’s consent

83
Q

Who argues FD is not based on fairness but consent?

A

Conaglen

84
Q

Who aligns the FD and SD rules?

A

Conaglen

85
Q

How does Conaglen align the FD and SD rules?

A

Consent, not FD on fairness

86
Q

What judge in what case defines FD based on fairness?

A

Megarry VC in Tito

87
Q

Who calls Megarry’s position on FD’s anomalous?

A

Conaglen

88
Q

Two cases suggesting FD is based on consent

A

Jones v Thomas; Selsey v Rhoades

89
Q

Jones v Thomas

A

FD - fair but no consent

90
Q

Selsey v Rhoades

A

Unfair but consent

91
Q

Fair but no consent for FD

A

Jones v Thomas

92
Q

Unfair but consent for FD

A

Selsey v Rhoades

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