o Held that the doctor had breached the no conflict and no profit rule by

O held that the doctor had breached the no conflict

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o Held: that the doctor had breached the no conflict and no profit rule by personally exploiting an opportunity which had come to him in his role as a fiduciary. HC held that the lease was held on constructive trust for the partnership, and this would be taken into account in the distribution of partnership property. Fiduciary duties prior to the execution of a partnership agreement: o Fiduciary duties may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled [ Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd (1988) ] Fiduciary duties following dissolution of a partnership: o Fiduciary duties may endure beyond the formal dissolution of the partnership to cover any matters involved in its winding up [ Chan v Zacharaia (1984) ] Agent/Principal An agent cannot retain a profit from any transaction, other than proper agents’ fees, unless the principal gives fully informed consent. o McKenzie v McDonald (1927) – Breach of loyalty standard owed by a fiduciary o Facts: A widow wanted to sell her property and move to Melbourne. Her real estate agent had private advice that her asking price was fair, but he instead advised her to reduce the price of her farm and he suggested that he purchase the farm and that she purchase a property of his in Melbourne. The price he asked for the Melbourne property was more than market value. Transaction took place and agent then resold farm for a profit. o Held: Agent was held to have breached his fiduciary duty by entering into a transaction with his principal without fully disclosing relevant information. Estate agents (like other fiduciaries) cannot enter into an engagement where their own interest or duty to a third party conflicts with their fiduciary duty to their principal BUT as the scope of fiduciary duties owed by an agent to his or her principal is defined by the terms of the contract of agency, the scope of certain fiduciary duties may be modified or excluded by the express or implied terms of the contract. o Kelly v Cooper (1993) Estate agents must be free to act for several competing principals because otherwise they would be unable to perform the function. i.e. there is an implied term of the agency agreement that the agent is entitled to act for other principals selling competing properties and to keep confidential the information obtained from each of the principals. Agents cannot take bribes or secret commissions during the course of their duties. o Lister v Stubbs (1890) UK – an agent was taking secret commission for business transactions, without the knowledge or consent of the principal. The money was found to be a debt owed to the principal. It was not held to be a constructive trust where the principal would have had a proprietary interest in the funds.
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