Property Law - Fiduciary Remedies Flashcards Preview

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Flashcards in Property Law - Fiduciary Remedies Deck (119):
1

Canson Enterprises v Boughton judgment

Too remote - direct cause was contractors neg

2

Commonwealth Bank of Australia v Smith

Might need to mitigate in EC to avoid CF

3

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

Smith

4

What was the CT in Boardman v Phipps?

All profits

5

Work out market value for pecuniary rescission at time of trial

McCarthy v Kenny

6

Couple solicitor debt

Brickenden v London Loan

7

Jurisdiction of Day v Mead

NZ

8

What case shows equitable compensation rose out of pecuniary rescission?

Nocton v Lord Ashburton

9

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)

10

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

Boardman v Phipps

11

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

12

Jurisdiction of Nationwide BS v Balmer Radmore

England

13

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

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

14

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

Material cause, Brickenden v London Loan

15

What is fair dealing?

T is buying B beneficial interest

16

Brickenden v London Loan judgment

Suggested material cause for causation in EC

17

What is self-dealing?

T is both buyer and seller

18

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

Neuberger

19

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

Day v Cooke

20

Tito v Waddell on fair-dealing for rescission

Only if unfair/not fully informed

21

What model (disability or duty) are CTs based on

Disability

22

Rye v Rye judgment

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

23

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

Mitchell

24

What case later clarified McKenzie v McDonald on quantification?

McCarthy v Kenny

25

What judge referred to AoP as 'EC'?

FHR European Ventures v Cedar

26

McCarthy v Kenny

Work out market value for pecuniary rescission at time of trial

27

Farm and shop

McKenzie v McDonald

28

Four remedies for breach of FD

Rescission, equitable compensation, account of profits and CT

29

Bribe for rescission

Grant v Gold

30

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

Warman v Dwyer

31

What is pecuniary rescission the analogue of?

Specific performance for P

32

Canson Enterprises v Boughton general

Land development contractors

33

What tort is the remoteness test of EC close to?

Tort of deceit

34

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)

35

If rescission and sold, hand over sale proceeds

Ladywell v Brooks

36

What is the proprietary remedy of AoP?

CT

37

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

Warman v Dwyer

38

Day v Cooke

Assumed Nationwide BS said no to all CF

39

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

Mitchell

40

Might need to mitigate in EC to avoid CF

Commonwealth Bank of Australia v Smith

41

What was the CT in Keech v Sandford?

lease

42

Principles relevant for rescission

Self-dealing and fair-dealing

43

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

Lister v Stubbs and AG for Hong Kong v Reid

44

What case shows proprietary analysis of AoP?

Target Holdings v Redferns

45

Hotel and home

Swindle v Harrison

46

What kind of remedy is equitable compensation?

Personal

47

Two additional elements to an EC claim

Causation and remoteness

48

Land development contractors

Canson Enterprises v Boughton

49

AG for Hong Kong v Reid general

Bribe

50

Difference or pay fully if take back under pecuniary rescission

McKenzie v McDonald

51

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

AG for Hong Kong v Reid

52

Transvaal Land v New Belgium

Conflict bc of 3rd, 3rd knew = rescission

53

Two situations for rescission

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

54

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)

55

Tito v Waddell on self-dealing for rescission

Can rescind whenever

56

Ladywell v Brooks

If rescission and sold, hand over sale proceeds

57

Justice Heydon extra-judicially on Brickenden

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

58

What is pecuniary rescission?

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

59

Justice Gummow

Align EC with tort damage, not trust reconstitution

60

T sole legal

Rye v Rye

61

What case resolved conflict over secret com/bribes?

FHR European Ventures v Cedar

62

Target Holdings v Redferns on proprietary remedy of AoP

F liable for highest value bc continuing duty

63

What is the problem with the misappropriation explanation of CT?

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

64

Jurisdiction of Pilmer v Duke

OZ

65

What two remedies can come out of an AoP?

Personal or proprietary - ALTERNATIVE

66

Murad v Al-Saraj judgment

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

67

From what jurisdiction is Warman?

Oz

68

McKenzie v McDonald general

Farm and shop

69

Hodgkinson v Simms

Presume no other transaction for causation EC

70

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

Re Biss

71

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

Ultraframe v Fielding, Lewison J

72

Bartlett v Barclays Bank on EC

Per LJ Brightman need a telescope to distinguish from tort claim

73

Pilmer v Duke decision

No CF for EC

74

What case gave three kinds of accounts?

Glazier v Australian Men's Health

75

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

CT

76

Brickenden v London Loan general

Couple solicitor debt

77

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

Langbeing

78

Murad v Al-Saraj general

Higher profit share

79

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

Assumed EC = SP

80

What case suggested tempering inflexibility of AoP in future?

Murad v Al-Saraj

81

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

Clarke LJ

82

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

Justice Gummow

83

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

FHR European Ventures v Cedar

84

Rye v Rye general

T sole legal

85

Case giving effect of fair/self dealing on rescission

Tito v Waddell

86

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

Already applies to EC

87

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

Conaglen

88

Conflict bc of 3rd, 3rd knew = rescission

Transvaal Land v New Belgium

89

What is an account of profits not dependent on?

Loss

90

Harder on Hodgkinson v Simms

Don't presume no other transaction if evidence

91

Grant v Gold

Bribe for rescission

92

What is the remoteness test for EC?

Re Pollemis - direct consequence

93

Day v Mead

CF for EC but high standard

94

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

Hayton and Mitchell

95

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

Ultraframe v Fielding

96

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

AG for Hong Kong v Reid

97

What are the two possible causation tests for AoP?

'within scope' OR 'caused gain'

98

Two possibilities under rescission

Reconvey property or sale proceeds if sold

99

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

Assumes loss-based = gain-based remedies

100

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

Only liable for first two years

101

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

Account in common form, wilful default and of profits

102

Sinclair v Versailles on if CT of AoP

May be able to claim secondary gains too

103

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

Warman v Dwyer

104

Grimaldi v Chameleon Mining

Apportion AoP 'practically just' from source

105

Swindle v Harrison general

Hotel and home

106

What academic argued equitable compensation arose out of pecuniary rescission

Vann

107

Swindle v Harrison judgment

But for causation test for EC

108

Presume no other transaction for causation EC

Hodgkinson v Simms

109

Nationwide BS v Balmer Radmore

CF if bad faith

110

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

But for - Swindle v Harrison

111

What is a possible explanation for why CT in FD?

Misappropriating trust property analogy - misappropriating trust office

112

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

113

McKenzie v McDonald judgment

Difference or pay fully if take back

114

Per LJ Brightman need a telescope to distinguish from tort claim

Bartlett v Barclays Bank

115

What kind of claim is account of profits?

Just an ACCOUNT, not automatically liable

116

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)

117

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

7 in SC

118

Higher profit share

Murad v Al-Saraj

119

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

Lister v Stubbs

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