Topic 4: Defences against breach of fiduicary Obligaitons act Flashcards
0
Q
What are the requirements for an informed consent?
A
It must be:
- Full; and
- Informed consent.
1
Q
What is a defence for a breach of fiduciary obligation?
A
Informed consent by the principal.
2
Q
What are some case examples where the defence of informed consent was raised for a breach of fiduciary obligation?
A
- Boardman v Phipps
- Pilmer v Duke Group; and
- Queensland Mining v Hudson
3
Q
Was the defence accepted in Boardman v Phipps?
A
Recall the facts.
He had sought consent of the trustees and the beneficiaries.
Courts held:
- The trustee’s joint consent was not valid because one of the trustees was suffering from dementia and thus did not have capacity to consent.
- He had provided the beneficiaries with information but not a sufficient amount.
4
Q
Was the defence accepted in Pilmer v Duke Group?
A
- The courts held that there was no fiduciary relationship to begin with so no need to consider defence.
Kirby dissenting:
- Held The consent requires:
- Full and
- Frank disclosure to the party affected;
- OF all material facts.
- The fiduciary must have all necessary information to make a judgement
- On the facts, there was no sufficient consent.
5
Q
What are the facts of Queensland Mining v Hudson?
A
- The director Queensland Mining was H, and thus he was in a fiduciary position.
- He and another director entered into negotiations with Tasmanian Gov to obtain mining licenses
- They formed a new company to exploit those licenses but used QM to get them.
- Evidence showed Tasmanian gov only gave it to them because they were directors of QM.
- H resigned from QM and made full disclosure of all relevant circumstances and facts to the board of QM
Court held:
- QM had full knowledge and allow him to pursue exploration for his own personal gain.
- They had been given full consent and gave informed consent
- H not liable for breach of duty.
