Property Law - Fiduciaries Flashcards Preview

Law Second Year > Property Law - Fiduciaries > Flashcards

Flashcards in Property Law - Fiduciaries Deck (92):
1

Bristol & West v Mothew general

Solicitor further charges

2

What judge in Bristol referred to single-minded loyalty to principle as obligation of F?

LJ Millett

3

What several facets of single-minded loyalty did LJ Millett give in Bristol?

Good faith, no profit, no conflict and no acting for self-benefit/3rd w/o principal consent

4

Who argued F is an F because subject to FD, not he other way around?

LJ Millett in Bristol

5

No conflict rule

Even if good faith, even if P better off and even if only potential, there can be NO conflict

6

What does there need to be for breach of FD?

Conflict + loss/profit

7

Keech v Sandford general

Lease infant

8

Keech v Sandford judgment

Inability of trust immaterial - lease on CT for infant

9

What judge in Keech said it is better for lease to run out than T take it?

LC King

10

Boardman v Phipps general

Family trust, Tom Phipps

11

What was found at first instance in Boardman v Phipps?

Not full disclosure to trustees

12

Decision split in HoL in Boardman

3:2

13

Judges in majority in Boardman

Cohen, Hodson and Guest

14

Judges in minority in Boardman

Dilhorne and Upjohn

15

Majority in Boardman

Opportunity came because of family trust, potential conflict enough (because bias advice) and honesty irrelevant as focus is on dishonesty

16

Minority in Boardman

Vital trust was not able to purchase shares

17

Boardman v Phipps judgment

Disgorge all profits, with liberal remuneration for work and skill

18

Bryan on Boardman

No explanation as to why B and TP were Fs - must have been 'self-appointed agents'

19

Why is the no conflict rule perhaps not so strict?

If F wants to retain a profit, he can make full disclosure to sui juris Bs

20

FHR European v Cedar Capital on 'no profit'

Neuberger confirmed 'no profit' is a subset of 'no conflict'

21

What case confirmed 'no profit' is a subset of 'no conflict'?

FHR European v Cedar Capital

22

Conaglen on no profit

Extension of 'no conflict' rule

23

Lionel Smith on no profit

Separate from no conflict, with different underpinnings - Keech v Sandford

24

How did Smith refer to Keech v Sandford to suggest no profit is separate from no conflict?

In Keech, no conflict (because couldn't get the lease), but still required to hold on CT because profit

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

Decks in Law Second Year Class (62):