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In a joint judgement brennan cj gaudron mchugh and

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In a joint judgement, Brennan CJ, Gaudron, McHugh and Gummow JJ noted that where arelationship is classified as fiduciary, the delinquent fiduciary should be liable for all loss flowingfrom the breach, even if it results in the breaching fiduciary being liable for all consequential loss.o‘for compensation to be established, a material connection between the breach and theloss must be established and ‘speculation’ about what might have happened if the breachhad not occurred, was irrelevant.In this respect HCA upheld the dicta conclusions of Lord Thankerton in the Canadian decision ofBrickenden v London Loan & Savings Co(1934) 3 DLR 465.Youyang Pty Ltd v Minter Ellison Morris Fletcher(2003) HCAoApproved the conclusions of McLachlin J inCansonoQuestioned whether the unique foundation of the equitable jurisdiction warranted anassimilation with compensatory damages in tort and contractoMajority concluded that there was ‘a real question whether the unique foundation and goalsof equity, which has the institution of the trust at its heart, warrant any assimilation even inthis limited wat with the measure of compensatory damages in tort and contract’.
59Other jurisdictions:Singapore: acceptedBrickendenas good law inoQuality Assurance Management Asia Pte Ltd v Zhang Qing[2013] 3 SLR 631;Then KhekKoon v Arjun Permanand Samtami[2014] 1 SLR 245:oA fiduciary who is one of the well-established categories of fiduciaries and who commits aculpable breach of his core duties of honesty and fidelity is liable to pay equitablecompensation even if the object of those duties is unable to prove but-for causation.England: ‘there is no equitable bypass of the need to establish causation’oTarget Holdings v Redferns[1996] 1 AC 421 – but-for test applies to innocent, negligentand fraudulent breachoNationwide Building Society v Balmer Radmore[1999] PNLR 606 at 671: court will notdisregard ‘what would have happened if the fiduciary had performed his duty.’Canada:Hodgkinson v Simms[1994] 3 SCR 377 at [76]Brickendenis authority for ‘… the long-standing equitable principle that where the plaintiff has made out a case of non-disclosure andthe loss occasioned thereby is established, the onus is on the defendant to prove that theinnocent victim would have suffered the same loss regardless of the breach.’New Zealand: higher standard of proof required; need for causation remainsContributory NegligenceShould the plaintiff’s contribution to loss be considered when establishing and assessingequitable compensation?Different courts have adopted different approaches to this issue. CfDay v Mead (NZ) andDukev Pilmer(HCA).Day v Mead[1987]2 NZLR 443oNZ Court of AppealoReduced an award of equitable compensation by applying the CL defence of contributorynegligencePilmer v Duke Group Ltd (in liq)HCAoDamages were measured by breach of contract as it was the higher awardoAppliedAstley v Austrust Limited(1999)161 ALR 155 - contributory negligence was nota consideration in assessing contract-based damages (at 170-182)oWhat effect would a finding that the plaintiff contributed to his loss have on an assessmentof equitable compensation for a breach of fiduciary duty?

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Trust law, case focus

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