Presentation Transcript

1. Equity Revision Seminar

2. Breach of Confidence Information must be specific The information must be able to be defined with sufficient precision (O’Brien) Rationale: Injunctions must be certain in scope (O’Brien) D’s must know case against him (Ocular) Cannot use BOC as means of oppression (O’Brien)
3. Breach of Confidence Necessary Quality of Confidence Form: the information may take any form Type: must be commerically or personally valuable Look to cases for examples: Franklin, Talbot, Douglas, Saltman, Foster, Giller, Campbell The information must be secret Information that is public cannot be protected (Saltman) Otherwise public knowledge may be secret by way of its organisation (eg. customer list) Limited dissemination may not equate to PN (Foster) Rumours lack authenticity and will not amount to PN (AFL v The Age)
4. Breach of Confidence The information must be imparted in circumstances that impose an obligation of confidence Reasonable person would have known was confidential/restrictions on use (Coco) Imparted in context of confidential relationship (Giller; Spycatcher) Improperly or surreptitiously obtained (Franklin) Obtained by another an passed on to a third party (Douglas) Accidentally obtained (Lord Goff in Spycatcher)
5. Breach of Confidence Unauthorized Use Can be threatened Where some limtiations on use, alternative uses may be ok (Smith Kline) Detriment No Requirement of detriment in Vic (Giller)
6. Breach of Confidence Defences Public Interest Iniquity (as a subset of PI – Kumar) Likelihood of a crime or civil misdeed Of public significance Being communicated to someone who has a real and direct interest in redressing the matter (AFL v The Age) Distinction between public interest and what the public are interested in
7. Breach of Fiduciary Duty Are the parties in a Fiduciary Relationship Accepted categories Trustee/Beneficiary (Keech) Agent/Principal (McKenzie) Employee/Employer (AG v Reid) Company director/Company (Regal Hastings) Solicitor/Client (Farrington) Partner/Partner (Chan)
8. Breach of Fiduciary Duty Are the parties in a fiduciary relationship? Proven in Fact Court will consider the fiduciary indicators put forward by Mason J in Hospital Products: Relationship of trust and confidence An undertaking Power to affect the principal’s interest Vulnerability Property holding Reliance Unlikely to be found in commercial relationships conducted at arms length (CBA v Smith; Kelly) No one factor is decisive
9. Breach of Fiduciary Duty Does the conduct fall within the scope of the fiduciary duty? Content of contractual agreements between the parties (USSC) Character of relationship (Birtchnell) Course of dealings actually pursued (Birtchnell) DEFINE the scope! Is your conduct within it?
10. Breach of Fiduciary Duty Breach of the Profits or Conflicts Rule Profits Rule: Fiduciary cannot make an illicit or unauthorized profit from the fiduciary position Can extend past money/assets to oppurtunities Conflicts Rule: “A fiduciary cannot enter into a transaction where a conflict or a serious possibility (i.e not hypothetical: Lord Upjohn in Boardman) of conflict exists” (per Deane J in Chan). Duty v Interest Duty v Duty
11. Breach of Fiduciary Duty Breach Conflicts Rule: Duty v Duty: Concurrent duties – cannot serve two masters at once Successive duties: KPMG (re lawyers) and Pilmer (re accountants) suggest that fiduciary obligations do not survive the termination of a retainer Rationale – afforded sufficient protection through BOC BUT in Spincode single judge suggested that they may still be owed. But did not say clearly to what extent. Defences Full disclosure and consent (Hudson Mines)
12. Third Party Liability Rule in Barnes v Addy Knowing Receipt Receipt of property Must receive for own purpose – not mere handling Trust property clear May extend to fiduciary property (Farah – in dicta) Trade secretes may form fiduciary property Can only be obtained in fiduciary capacity Knowledge that the property was trust/fiduciary property Knowledge of the circumstances indicating fiduciary’s breach involved a misapplication of trust/fiduciary property
13. Third Party Liability Knowing Receipt Receipt of property Knowledge that the property was trust/fiduciary property Use the Baden Scale from Consul (per Farah in obiter) Actual knowledge Willfully shutting eyes to the obvious Willfully/recklessly failing to make enquiries an honest/reasonable person would make Knowledge of circumstances that would indicate facts to an honest/reasonable person Knowledge of circumstances that would put an honest/reasonable person on enquiry (this is will not constitute knowing receipt). Knowledge of the circumstances indicating fiduciary’s breach involved a misapplication of trust/fiduciary property Use the Baden Scale from Consul (per Farah in obter) – as above NB: UK Position
14. Third Party Liability Knowing Assistance Breach of Fiduciary Duty Assistance in breach Knowledge that the conduct involved a breach of fiduciary duty Use the Baden Scale from Consul (per Farah) Actual knowledge Willfully shutting eyes to the obvious Willfully/recklessly failing to make enquiries an honest/reasonable person would make Knowledge of circumstances that would indicate facts to an honest/reasonable person Knowledge of circumstances that would put an honest/reasonable person on enquiry (this is will not constitute knowing receipt). Fiduciary must have had a ‘dishonest and fraudulent design’ NB: UK Position
15. Assignments – Legal Property
16. Assignments Assignments of legal property Where the legal transfer rules have not been complied with: Where consideration – will be effective in equity Where gift – must ask “Has the donor done all they alone can do (Milroy; Corin), and put it beyond their recall (per Deane J Corin)? Assignments of property only recognised in equity Donor must manifest an intention to immediately assign Windeyer J in Norman says through deed or other writing In Everett HCA suggested s 134 PLA does not need to be complied with, but will be helpful where complied with
17. Assignments Assignments of future property Cannot transfer at common law At equity, where consideration paid: May be able to transfer where the property can be properly ascertained/identified (Talbot; Hewitt) At equity, who no consideration – cannot transfer Future Interest? If pre-existing right of entitlement that will vest in future may be capable of assignment (Shepherd) Must still then discuss whether transferred
18. Property Rights and Remedies Constructive Trust Equitable Lien Property rights: Existing property right (eg. B under a trust) Misappropriation of opportunity by a fiduciary (Boardman; VUT) Bribes and secret commissions (Reid) NB: Lister v Stubbs
19. Tracing Cannot have been dissipated on in the hands of a BFPFVWN Where T took trust property and used it (w/o mixing) If still holding – trace into object If used to purchase new asset – trace into new asset Where T mixes trust property with their own property If paid into a bank account, assume T withdraws their own money first (Re Hallet) Where used to buy an asset – CT or Lien (Foskett; Scott)
20. Tracing Where T passes trust property to a third party with notice or a volunteer Can trace property into hands of third party Where T has passed property to an innocent third party, who has mixed with property with their own If mixed to purchase a new asset, can trace into the new asset – will receive a lien (Re Diplock) If an existing asset has been improved, the right to trace is lost (Re Diplock)
21. Personal Remedies in Equity Always discretionary – factors to consider: Laches/Delay Hardship Unclean hands Interest of third parties Impossibility/futility Court supervision Availability of adequate common law remedy Specific Performance Injunction Need a recognised cause of action (Lenah) Interlocutory injunction where (i) serious question to be tried; or (ii) prima facie entitlement to final relief at trial Balance of convenience must favour granting (Atkins) Damage would be suffered if not granted
22. Personal Remedies Account of Profits Where breach resulted in capital gain – strip profits Where profit stream is ongoing, can give AoP for the ‘head start’ period (Warman) Where there has been a contribution of time, skill or money an allowance may be made (VUT; Warman) Equitable Compensation Breach must have caused the loss (Mantonella) Re Dawson applied ‘but for’ test. Maguire said ‘but for’ can be applied, but would also need to apply ‘common sense’ approach Where profit and loss, can choose which remedy to seek (cannot have double recovery) Tang Man Sit
23. Personal Remedies Equitable Rescission Where a contract is affected by a vitiating factor (ie entered into in BOFD) court can order equitable rescission. This has the effect that any property conveyed under the contract is held on the trust for P Equity does not need complete rescission where practical justice can be achieved (Maguire) Can order ‘pecuniary rescission’ (McKenzie) Lord Cairns’ Act Damages Court can awards damages in lieu of or in addition to SP or an injunction Therefore, must show SP or Injunction available (Mills)
24. Exam Start memorizing the subject! Do practice exams Plan your question during reading time Use ‘BOFD’ and ‘As above’ to save time Always introduce and conclude your questions Split up each person/act/cause of action Use headings Always state the law Use cases/judges where possible Include policy points where relevant