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Property Law - Fiduciaries Flashcards

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
Self-dealing rule
T dealing with trust as both buyer and seller
26
Fair dealing rule
T buys beneficial interest from B
27
Tito v Waddell (No.2)
Self-dealing is always voidable, even if fair value
28
Re Thompson's Settlement
Under self-dealing, T cannot sell trust property to company in which she is the main shareholder, managing director or other principal
29
Under self-dealing, T cannot sell trust property to company in which she is the main shareholder, managing director or other principal
Re Thompson's Settlement
30
Self-dealing is always voidable, even if fair value
Tito v Waddell (No.2)
31
Wright v Morgan
Sale to spouse not prohibited by self-dealing, as long as in B's BI
32
Sale to spouse not prohibited by self-dealing, as long as in B's BI
Wright v Morgan
33
How can a transaction be set aside for failing 'fair dealing' rule?
If unfair - onus on T to establish consent was fully obtained and value of purchase fair
34
Where does the disability model still apply in remedies?
Rescission, account of profits and CT
35
Where does the duty model apply in remedies?
Equitable compensation
36
What is the disability model
Enforce primary duties - proscriptive, prophylactic and not dependent on causation/remoteness
37
What academic called disability model prophylactic?
Conaglen
38
Two supporters of disability model
Lord Millett and Birks
39
What is the duty model?
F committed a wrong by breaching FD, so positive, prescriptive duty to act loyally breached, leading to secondary repair duty
40
Hospital Products v US Surgical
F owes + duty not to promote personal interests
41
Koshy
Suggested disability/duty irrelevant for remoteness/causation for unauthorised profits
42
Conaglen on duty
Disability will yield to BoD model in unauthorised profits
43
Who argued we impose F duties to encourage people to act altruistically?
Frankel
44
Who argued F duties are really about 'deliberative exclusivity'?
Penner
45
What is the idea behind deliberative exclusivity?
P doesn't need to be priority, just decisions made solely with P in mind
46
Re Duke of Norfolk's ST
Courts can authorise remuneration in exceptional cases
47
Bristol v Mothew on fiduciary remuneration
Consent can be implied
48
What Act provides for remuneration of F in particular situations?
S.28 - 33 Trustee Act 2000
49
What section of what Act allows professional Ts to receive remuneration even without charging clause?
S.28 and 29 TA 2000
50
What is the basic rule on fiduciary remuneration?
Ts and Fs act gratuitously
51
Bristol v Mothew on fiduciary relationship
Millett LJ required act undertaken, giving rise to relationship of trust and confidence
52
Aberdeen Town Council v Aberdeen Uni
T and B = F
53
Boston Deep Sea v Ansell
Agent and principal = F
54
Aas v Benham
Partners = F
55
Regal v Gulliver
Director and company = F
56
Hilton v Barker Booth
Solicitor and client = F
57
Name at least two cases showing settled categories of F
Aas v Benham; Regal v Gulliver; Hilton v Barker Booth; Boston Deep Sea v Ansell; Aberdeen Town Council v Aberdeen Uni
58
Name at least two cases showing ad hoc categories of F
Reading v AG; JP Morgan v Springwell; Vercoe v Rutland; Murad v Al-Saraj
59
Reading v AG
Soldier bribe checks
60
JP Morgan v Springwell
Trust alone does not equal FD
61
Vercoe v Rutland
Expect degree of ruthlessness in commercial dealings
62
Expect degree of ruthlessness in commercial dealings
Vercoe v Rutland
63
Trust alone does not equal FD
JP Morgan v Springwell
64
Soldier bribe checks
Reading v AG
65
Murad v Al-Saraj
F can be ad hoc - not necessarily formal (e.g. solicitor)
66
F can be ad hoc - not necessarily formal (e.g. solicitor)
Murad v Al-Saraj
67
How is the scope of F's duty determined?
From party's relationship as a question of fact
68
Learoyd v Whiteley/Speight v Gaunt
Scope of F duty is diligence person of ordinary prudence would exercise in managing own affairs
69
Re Whiteley
If investment, minded to make investment for benefit of others, for whom he feels morally bound to provide
70
Bartlerr v Barclays Bank
Higher DoC from professional Ts
71
Henderson v Merrett Syndicates
Contract can modify scope of F relationship, e.g. allow for competiton
72
Hospital Products v US Surgical on scope/contract
F relationship cannot be imposed so as to change operation of contract
73
Boardman v Phipps on consent to FD breach
Can get consent to avoid breach, as long as 'full and frank disclosure', sui juris and burden on F
74
Walsh v Shanahan
FD end with relationship
75
FD end with relationship
Walsh v Shanahan
76
CMS Dolphin v Simonet
F cannot reassign post then take opportunity that arose whilst in F capacity
77
F cannot reassign post then take opportunity that arose whilst in F capacity
CMS Dolphin v Simonet
78
Contract can modify scope of F relationship, e.g. allow for competition
Henderson v Merrett
79
who said that the 2-party rule (e.g. rye v rye) is not the fundamental reason for the self-dealing rule?
Conaglen
80
What judge in what case thought the SD and FD rules were distinct?
Megarry VC in Tito v Waddell
81
What case showed that SD can be overcome if B's consent?
Sanderson v Walker
82
Sanderson v Walker
SD not an issue if B's consent
83
Who argues FD is not based on fairness but consent?
Conaglen
84
Who aligns the FD and SD rules?
Conaglen
85
How does Conaglen align the FD and SD rules?
Consent, not FD on fairness
86
What judge in what case defines FD based on fairness?
Megarry VC in Tito
87
Who calls Megarry's position on FD's anomalous?
Conaglen
88
Two cases suggesting FD is based on consent
Jones v Thomas; Selsey v Rhoades
89
Jones v Thomas
FD - fair but no consent
90
Selsey v Rhoades
Unfair but consent
91
Fair but no consent for FD
Jones v Thomas
92
Unfair but consent for FD
Selsey v Rhoades

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