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Law Second Year > Property Law - Fiduciary Remedies > Flashcards

Property Law - Fiduciary Remedies Flashcards

1
Q

Canson Enterprises v Boughton judgment

A

Too remote - direct cause was contractors neg

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2
Q

Commonwealth Bank of Australia v Smith

A

Might need to mitigate in EC to avoid CF

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3
Q

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

A

Smith

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4
Q

What was the CT in Boardman v Phipps?

A

All profits

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5
Q

Work out market value for pecuniary rescission at time of trial

A

McCarthy v Kenny

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6
Q

Couple solicitor debt

A

Brickenden v London Loan

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7
Q

Jurisdiction of Day v Mead

A

NZ

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8
Q

What case shows equitable compensation rose out of pecuniary rescission?

A

Nocton v Lord Ashburton

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9
Q

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

A

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

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10
Q

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

A

Boardman v Phipps

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11
Q

What are the 4 requirements for personal AoP?

A

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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12
Q

Jurisdiction of Nationwide BS v Balmer Radmore

A

England

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13
Q

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

A

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

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14
Q

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

A

Material cause, Brickenden v London Loan

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15
Q

What is fair dealing?

A

T is buying B beneficial interest

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16
Q

Brickenden v London Loan judgment

A

Suggested material cause for causation in EC

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17
Q

What is self-dealing?

A

T is both buyer and seller

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18
Q

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

A

Neuberger

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19
Q

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

A

Day v Cooke

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20
Q

Tito v Waddell on fair-dealing for rescission

A

Only if unfair/not fully informed

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21
Q

What model (disability or duty) are CTs based on

A

Disability

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22
Q

Rye v Rye judgment

A

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

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23
Q

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

A

Mitchell

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24
Q

What case later clarified McKenzie v McDonald on quantification?

A

McCarthy v Kenny

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25
Q

What judge referred to AoP as ‘EC’?

A

FHR European Ventures v Cedar

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26
Q

McCarthy v Kenny

A

Work out market value for pecuniary rescission at time of trial

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27
Q

Farm and shop

A

McKenzie v McDonald

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28
Q

Four remedies for breach of FD

A

Rescission, equitable compensation, account of profits and CT

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29
Q

Bribe for rescission

A

Grant v Gold

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30
Q

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

A

Warman v Dwyer

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31
Q

What is pecuniary rescission the analogue of?

A

Specific performance for P

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32
Q

Canson Enterprises v Boughton general

A

Land development contractors

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33
Q

What tort is the remoteness test of EC close to?

A

Tort of deceit

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34
Q

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

A

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

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35
Q

If rescission and sold, hand over sale proceeds

A

Ladywell v Brooks

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36
Q

What is the proprietary remedy of AoP?

A

CT

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37
Q

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

A

Warman v Dwyer

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38
Q

Day v Cooke

A

Assumed Nationwide BS said no to all CF

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39
Q

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

A

Mitchell

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40
Q

Might need to mitigate in EC to avoid CF

A

Commonwealth Bank of Australia v Smith

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41
Q

What was the CT in Keech v Sandford?

A

lease

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42
Q

Principles relevant for rescission

A

Self-dealing and fair-dealing

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43
Q

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

A

Lister v Stubbs and AG for Hong Kong v Reid

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44
Q

What case shows proprietary analysis of AoP?

A

Target Holdings v Redferns

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45
Q

Hotel and home

A

Swindle v Harrison

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46
Q

What kind of remedy is equitable compensation?

A

Personal

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47
Q

Two additional elements to an EC claim

A

Causation and remoteness

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48
Q

Land development contractors

A

Canson Enterprises v Boughton

49
Q

AG for Hong Kong v Reid general

A

Bribe

50
Q

Difference or pay fully if take back under pecuniary rescission

A

McKenzie v McDonald

51
Q

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

A

AG for Hong Kong v Reid

52
Q

Transvaal Land v New Belgium

A

Conflict bc of 3rd, 3rd knew = rescission

53
Q

Two situations for rescission

A

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

54
Q

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

A

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

55
Q

Tito v Waddell on self-dealing for rescission

A

Can rescind whenever

56
Q

Ladywell v Brooks

A

If rescission and sold, hand over sale proceeds

57
Q

Justice Heydon extra-judicially on Brickenden

A

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

58
Q

What is pecuniary rescission?

A

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

59
Q

Justice Gummow

A

Align EC with tort damage, not trust reconstitution

60
Q

T sole legal

A

Rye v Rye

61
Q

What case resolved conflict over secret com/bribes?

A

FHR European Ventures v Cedar

62
Q

Target Holdings v Redferns on proprietary remedy of AoP

A

F liable for highest value bc continuing duty

63
Q

What is the problem with the misappropriation explanation of CT?

A

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

64
Q

Jurisdiction of Pilmer v Duke

A

OZ

65
Q

What two remedies can come out of an AoP?

A

Personal or proprietary - ALTERNATIVE

66
Q

Murad v Al-Saraj judgment

A

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

67
Q

From what jurisdiction is Warman?

A

Oz

68
Q

McKenzie v McDonald general

A

Farm and shop

69
Q

Hodgkinson v Simms

A

Presume no other transaction for causation EC

70
Q

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

A

Re Biss

71
Q

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

A

Ultraframe v Fielding, Lewison J

72
Q

Bartlett v Barclays Bank on EC

A

Per LJ Brightman need a telescope to distinguish from tort claim

73
Q

Pilmer v Duke decision

A

No CF for EC

74
Q

What case gave three kinds of accounts?

A

Glazier v Australian Men’s Health

75
Q

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

A

CT

76
Q

Brickenden v London Loan general

A

Couple solicitor debt

77
Q

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

A

Langbeing

78
Q

Murad v Al-Saraj general

A

Higher profit share

79
Q

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

A

Assumed EC = SP

80
Q

What case suggested tempering inflexibility of AoP in future?

A

Murad v Al-Saraj

81
Q

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

A

Clarke LJ

82
Q

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

A

Justice Gummow

83
Q

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

A

FHR European Ventures v Cedar

84
Q

Rye v Rye general

A

T sole legal

85
Q

Case giving effect of fair/self dealing on rescission

A

Tito v Waddell

86
Q

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

A

Already applies to EC

87
Q

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

A

Conaglen

88
Q

Conflict bc of 3rd, 3rd knew = rescission

A

Transvaal Land v New Belgium

89
Q

What is an account of profits not dependent on?

A

Loss

90
Q

Harder on Hodgkinson v Simms

A

Don’t presume no other transaction if evidence

91
Q

Grant v Gold

A

Bribe for rescission

92
Q

What is the remoteness test for EC?

A

Re Pollemis - direct consequence

93
Q

Day v Mead

A

CF for EC but high standard

94
Q

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

A

Hayton and Mitchell

95
Q

What case allowed for ‘just allowances’ for F skill?

A

Ultraframe v Fielding

96
Q

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

A

AG for Hong Kong v Reid

97
Q

What are the two possible causation tests for AoP?

A

‘within scope’ OR ‘caused gain’

98
Q

Two possibilities under rescission

A

Reconvey property or sale proceeds if sold

99
Q

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

A

Assumes loss-based = gain-based remedies

100
Q

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

A

Only liable for first two years

101
Q

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

A

Account in common form, wilful default and of profits

102
Q

Sinclair v Versailles on if CT of AoP

A

May be able to claim secondary gains too

103
Q

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

A

Warman v Dwyer

104
Q

Grimaldi v Chameleon Mining

A

Apportion AoP ‘practically just’ from source

105
Q

Swindle v Harrison general

A

Hotel and home

106
Q

What academic argued equitable compensation arose out of pecuniary rescission

A

Vann

107
Q

Swindle v Harrison judgment

A

But for causation test for EC

108
Q

Presume no other transaction for causation EC

A

Hodgkinson v Simms

109
Q

Nationwide BS v Balmer Radmore

A

CF if bad faith

110
Q

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

A

But for - Swindle v Harrison

111
Q

What is a possible explanation for why CT in FD?

A

Misappropriating trust property analogy - misappropriating trust office

112
Q

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

A

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

113
Q

McKenzie v McDonald judgment

A

Difference or pay fully if take back

114
Q

Per LJ Brightman need a telescope to distinguish from tort claim

A

Bartlett v Barclays Bank

115
Q

What kind of claim is account of profits?

A

Just an ACCOUNT, not automatically liable

116
Q

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

A

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

117
Q

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

A

7 in SC

118
Q

Higher profit share

A

Murad v Al-Saraj

119
Q

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

A

Lister v Stubbs

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