Federal Court of Australia
CORPORATIONS – Corporations Act 2001 (Cth), s 9 – ‘director’ – ‘officer’ – de facto director – no single test for determining whether a person is such – assuming or performing the functions of a director of the company in question – directors or consultants or both – blurring of ‘de facto’ and ‘shadow’ – de facto officer – unnecessary to differentiate de facto director from de facto officers
CORPORATIONS – Corporations Act 2001 (Cth), ss 181 and 182 – director and de facto director misappropriating corporate funds – effecting a transaction in which they had a personal interest – using position in expectation of obtaining an introduction fee
CORPORATIONS – Corporations Act 2001 (Cth), s 1317H – construction of provision – inclusion of ‘profits’ within ‘damage suffered’ – whether profits can be sought without claim for, or proof of, loss
CORPORATIONS – knowledge of corporation – imputation of director’s knowledge to corporation – knowledge of own wrongdoing – ‘fraud on the company’ exception – receipt of a secret commission
EQUITY – Fiduciary obligations – imposing standards of conduct – overlap of conflict of duty and interest and misuse of fiduciary position – defining the subject matter over which fiduciary obligations extend
EQUITY – Fiduciary obligations – receipt of civil law bribe or secret commission – characteristics of secret commission – third party payer’s position – assumption of risk of agent’s nondisclosure to its principal
EQUITY – Participation in the wrongdoing of a trustee or fiduciary – classes of case – Barnes v Addy – liabilities as a knowing recipient or a knowing assistant – fault based liabilities – the ‘knowledge’ of wrongdoing required of a knowing recipient – present Australian law – unhelpful formulae
EQUITY – Corporate property as ‘trust property’ for Barnes v Addy purposes – money paid or property transferred under a contract – breach of fiduciary duty – whether the transaction must be avoided before proprietary relief can be awarded – Daly v Sydney Stock Exchange – constructive trusts and tracing corporate property
EQUITY – Remedies – fashioning remedy to fit the nature of the case and its facts – doing what is ‘practically just’ – awarding the remedy which is ‘appropriate’ in the circumstances – the remedial constructive trust and appropriateness – discretionary considerations
EQUITY – Fiduciaries’ Liability to Account and the Account of Profits – purpose and limits of an account of profits – breach of duty only one of several sources of profit – misuse of ‘trust moneys’ in a fiduciary’s trade or business – applicable principles – the ‘just allowance’ device
EQUITY – Account of Profits – accounting for the profits actually made – when parties may be jointly and severally liable for profits
EQUITY – Interest awards where trust moneys misused – presumption of profit made reflected in award of interest – award of compound interest and periodic rests
EQUITY – Remedies – against knowing recipients and knowing assistances – whether joint and several as between fiduciary/trustee and the third party participants
EQUITY – Remedies – for bribes and secret commissions – Lister and Co v Stubbs not followed – constructive trust of the property received an available remedy if appropriate in the circumstances
PRACTICE AND PROCEDURE – Appeals – application to amend – application to reopen decision to refuse amendment to Notice of Contention – application to reopen on grounds of legal error – Grimaldi v Chameleon Mining NL (No 1) [2011] FCAFC 95 reopened – Federal Court Rules 2011 r 39.04 – application to further amend notice of appeal
‘a person will be in a fiduciary relationship with another when and insofar as that person has undertaken to perform such a function for, or has assumed such a responsibility to, another as would thereby reasonably entitle that other to expect that he or she will act in that other’s interest to the exclusion of his or her own or a third party’s interest’
Finn, Stome, and Perram JJ
[2012] FCAFC 6, (2012) 200 FCR 296, (2012) 287 ALR 22, (2012) 87 ACSR 260
Austlii
Australia
Cited by:
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 August 2021; Ref: scu.551511