Property Law - Fiduciary Remedies Flashcards by Annie wood

Canson Enterprises v Boughton judgment

Too remote - direct cause was contractors neg

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Commonwealth Bank of Australia v Smith

Might need to mitigate in EC to avoid CF

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Who said deterrence in CT undesirable for private law and ineffective?

Smith

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What was the CT in Boardman v Phipps?

All profits

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Work out market value for pecuniary rescission at time of trial

McCarthy v Kenny

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Couple solicitor debt

Brickenden v London Loan

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Jurisdiction of Day v Mead

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What case shows equitable compensation rose out of pecuniary rescission?

Nocton v Lord Ashburton

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what are the two approaches to giving F some remuneration for service?

Ultraframe v Fielding just allowance, Grimaldi v Chameleon Mining ‘practically just’ (from source)

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What case supports Ultraframe v Fielding view on AoP remuneration of F?

Boardman v Phipps

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What are the 4 requirements for personal AoP?

C can’t be UE, establish what was received, mould based on facts and fundamental rule of F cannot receive profits

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Jurisdiction of Nationwide BS v Balmer Radmore

England

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What three cases analyse the application of contributory fault in EC claims?

Pilmer v Duke; Day v Mead; Nationwide BS v Balmer Radmore

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What is the alternative causation test to Swindle v Harrison and from what case?

Material cause, Brickenden v London Loan

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What is fair dealing?

T is buying B beneficial interest

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Brickenden v London Loan judgment

Suggested material cause for causation in EC

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What is self-dealing?

T is both buyer and seller

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What judge in FHR European Ventures said both Lister and AG for Hong Kong strong arguments?

Neuberger

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What case assumed Nationwide BS v Balmer said no to all CF for EC?

Day v Cooke

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Tito v Waddell on fair-dealing for rescission

Only if unfair/not fully informed

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What model (disability or duty) are CTs based on

Disability

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Rye v Rye judgment

T cannot be sole legal owner if purchase, but can join another and then self-dealing rule applies

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What academic said we should use remoteness for AoP to deal with hard cases, and stick to ‘a cause’ ONLY

Mitchell

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What case later clarified McKenzie v McDonald on quantification?

McCarthy v Kenny

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What judge referred to AoP as 'EC'?

FHR European Ventures v Cedar

McCarthy v Kenny

Work out market value for pecuniary rescission at time of trial

Farm and shop

McKenzie v McDonald

Four remedies for breach of FD

Rescission, equitable compensation, account of profits and CT

Bribe for rescission

Grant v Gold

What case supports Grimaldi v Chameleon Mining on AoP remuneration of F?

Warman v Dwyer

What is pecuniary rescission the analogue of?

Specific performance for P

Canson Enterprises v Boughton general

Land development contractors

What tort is the remoteness test of EC close to?

Tort of deceit

What suggests the causation test for AoP only requires it to be 'one' cause?

Fundamental rule that F cannot receive profits (Ultraframe v Fielding, Lewison J)

If rescission and sold, hand over sale proceeds

Ladywell v Brooks

What is the proprietary remedy of AoP?

What case shows that burden is on F to establish there shouldn't be a full AoP to C?

Warman v Dwyer

Day v Cooke

Assumed Nationwide BS said no to all CF

What academic argued no one-size fits all conclusion for remedies?

Mitchell

Might need to mitigate in EC to avoid CF

Commonwealth Bank of Australia v Smith

What was the CT in Keech v Sandford?

lease

Principles relevant for rescission

Self-dealing and fair-dealing

What two cases conflicted over CT of secret commission/bribed?

Lister v Stubbs and AG for Hong Kong v Reid

What case shows proprietary analysis of AoP?

Target Holdings v Redferns

Hotel and home

Swindle v Harrison

What kind of remedy is equitable compensation?

Personal

Two additional elements to an EC claim

Causation and remoteness

Land development contractors

Canson Enterprises v Boughton

AG for Hong Kong v Reid general

Bribe

Difference or pay fully if take back under pecuniary rescission

McKenzie v McDonald

What case highlighted deterrent effect of requiring AoP of secret com/bribe?

AG for Hong Kong v Reid

Transvaal Land v New Belgium

Conflict bc of 3rd, 3rd knew = rescission

Two situations for rescission

Bribe or conflict bc of 3rd, and 3rd knew

How does Mitchell show there is a difference between EC and SP?

EC needs causation and remoteness (SP doesn't UNLESS Target Holdings v Redferns)

Tito v Waddell on self-dealing for rescission

Can rescind whenever

Ladywell v Brooks

If rescission and sold, hand over sale proceeds

Justice Heydon extra-judicially on Brickenden

Too far to hold D liable for ALL without but for causation

What is pecuniary rescission?

Current market value in lieu of rescission if 3rd is a BFP

Justice Gummow

Align EC with tort damage, not trust reconstitution

T sole legal

Rye v Rye

What case resolved conflict over secret com/bribes?

FHR European Ventures v Cedar

Target Holdings v Redferns on proprietary remedy of AoP

F liable for highest value bc continuing duty

What is the problem with the misappropriation explanation of CT?

F doesn't always agree to act exclusively/hand over bribes

Jurisdiction of Pilmer v Duke

What two remedies can come out of an AoP?

Personal or proprietary - ALTERNATIVE

Murad v Al-Saraj judgment

LJ Arden said AoP about being within scope - disabled. Account for ALL. Maybe temper inflexibility if GF

From what jurisdiction is Warman?

McKenzie v McDonald general

Farm and shop

Hodgkinson v Simms

Presume no other transaction for causation EC

What case suggested Keech v Sandford does not stop BFP mortgagee/director taking benefit if fully informed etc.?

Re Biss

What case and judge gave four requirements for personal remedy of AoP

Ultraframe v Fielding, Lewison J

Bartlett v Barclays Bank on EC

Per LJ Brightman need a telescope to distinguish from tort claim

Pilmer v Duke decision

No CF for EC

What case gave three kinds of accounts?

Glazier v Australian Men's Health

According to AG for Hong Kong v Reid, if the profit/traceable proceed of profit has increased, what could C do?

Brickenden v London Loan general

Couple solicitor debt

What academic said deterrence in CT is an over-deterrence against beneficial fiduciary relationships?

Langbeing

Murad v Al-Saraj general

Higher profit share

Why were courts slow to adopt equitable compensation from Nocton v Lord Ashburton?

Assumed EC = SP

What case suggested tempering inflexibility of AoP in future?

Murad v Al-Saraj

What judge in Murad v Al-Saraj relied on but for causation?

Clarke LJ

What judge said Align EC with tort damage, not trust reconstitution?

Justice Gummow

What case showed judges confusing terminology in regard to account of profits?

FHR European Ventures v Cedar

Rye v Rye general

T sole legal

Case giving effect of fair/self dealing on rescission

Tito v Waddell

What suggests duty model of 'but for' test could apply to AoP?

Already applies to EC

What academic asked what would happen after FHR European in indirect gain cases like Sinclair?

Conaglen

Conflict bc of 3rd, 3rd knew = rescission

Transvaal Land v New Belgium

What is an account of profits not dependent on?

Loss

Harder on Hodgkinson v Simms

Don't presume no other transaction if evidence

Grant v Gold

Bribe for rescission

What is the remoteness test for EC?

Re Pollemis - direct consequence

Day v Mead

CF for EC but high standard

What academics made it clear that AoP not dependent on tracing requirements?

Hayton and Mitchell

What case allowed for 'just allowances' for F skill?

Ultraframe v Fielding

What case gives the appropriateness of personal/proprietary remedy in situations in AoP?

AG for Hong Kong v Reid

What are the two possible causation tests for AoP?

'within scope' OR 'caused gain'

Two possibilities under rescission

Reconvey property or sale proceeds if sold

Why is it a problem Neuberger referred to AoP as EC in FHR European?

Assumes loss-based = gain-based remedies

Why is it suggested Warman v Dwyer shows but for cause for AoP?

Only liable for first two years

What are the three kinds of accounts a B can make?

Account in common form, wilful default and of profits

Sinclair v Versailles on if CT of AoP

May be able to claim secondary gains too

What case showed perhaps but for causation on AoP in Australia?

Warman v Dwyer

Grimaldi v Chameleon Mining

Apportion AoP 'practically just' from source

Swindle v Harrison general

Hotel and home

What academic argued equitable compensation arose out of pecuniary rescission

Vann

Swindle v Harrison judgment

But for causation test for EC

Presume no other transaction for causation EC

Hodgkinson v Simms

Nationwide BS v Balmer Radmore

CF if bad faith

What is the main causation test in EC, and from what case

But for - Swindle v Harrison

What is a possible explanation for why CT in FD?

Misappropriating trust property analogy - misappropriating trust office

What case supports the idea that causation for AoP only 'one' cause, and how?

Murad v Al-Saraj - would have gone through anyway BUT higher profit share

McKenzie v McDonald judgment

Difference or pay fully if take back

Per LJ Brightman need a telescope to distinguish from tort claim

Bartlett v Barclays Bank

What kind of claim is account of profits?

Just an ACCOUNT, not automatically liable

According to AG for Hong Kong v Reid, if the profit/traceable proceed of profit has decreased, what could C do?

Personal claim OR lien on what is there + personal (i.e. if insolvent)

How many Members sat in the Court in FHR Europen Ventures for secret com/bribe decision?

7 in SC

Higher profit share

Murad v Al-Saraj

What case said only personal remedy, not CT, of secret com/bribes?

Lister v Stubbs