fiduciary duty is the informed consent (by the party to whom the duty is owed) to the relevant action/conduct of the fiduciary.The fiduciary must obtain the other party’s informed consent to the relevantconduct.The fiduciary mustdisclose all the relevant circumstances to the other party.The disclosure must be of all material facts/information that could affectthe decision to give consentIt is a factual question, whether informed consent has been given.It may be necessary that the confiding person obtain independent skilledadvice: Maguire v Makaronis (1997) 188 CLR 449 at 466-7.The fiduciary cannotinducethe decision of the other party to grant the consent: Consul Development P/L v DPC Estates P/L (1975) 132 CLR 373 at 399-400, per Gibbs J.Phipps v Boardman  2 All ER 187Topic 7 – Fiduciary Obligations
Equity & Trusts 70517FDefences 1 Fully informed consentConsul Development v DPC Estates(1975) 132 CLR 373There is a strict equitable principle that a person occupying a position of confidence in relation to another owes that other a duty not to put himself in a position where his interests and his duty conflict and requires that, if he abuses that confidence and in breach of his duty makes a profit for himself, he must account to that other for the profit so made. If after full and frank disclosure of all material facts to the person to whom such a duty as I have described is owed and permissionhas been given to make a profit for himself out of transactions which would otherwise be in breach of duty he is, of course, absolvedfrom any obligation to account.Topic 7 – Fiduciary Obligations
Equity & Trusts 70517FDefences 1 Fully informed consentFarah Constructions v Say-Dee Pty Ltd(2007) 230 CLR 89  Contrary to … the trial judge's reasoning, Farah hada duty to disclose to Say-Dee the information that the Council saw amalgamation of the redevelopment of No 11 with adjoining properties as necessary in order to maximise its development potential, and the information that No 15 and No 20, and later No 13, were available for purchase. The information about the Council's attitude came to Farah in its fiduciarycapacity; and while the other items of information did not, they represented opportunities which it was not open to Farah to exploit, consistently with its fiduciary duty, unlessSay-Dee gave its informed consent to a contrary course. That is because to exploit those opportunities without informed consent would be to place Farah in a position of conflict between its self-interest and its duty to Say-Dee in relation to No 11.Topic 7 – Fiduciary Obligations
Equity & Trusts 70517FDefences 1 Fully informed consent 2 RatificationBamford v Bamford Ch 212Fexuto v Bosnjak Holdings (1998) 28 ACSR 688 at 721 (only shareholders can waive breach affecting share value) 3LachesCircumstances in which the court will refuse relief by reason of standing by or lapse of time before action in the face of a challenge to right or an assertion of adverse interest: Orr v Ford(1989) 167 CLR 3164AcquiescenceLapse of time and knowledge that rights have been infringed – knowing delay: Orr v Ford at 341Topic 7 – Fiduciary Obligations
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