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Lecture

10 Monetary Remedies

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
X Monetary Remedies Equitable compensation • Equity’s inherent jurisdiction—equitable remedy for equitable right—no need to prove inadequacy of common law damages o For breach of trust: Re Dawson o For breach of fiduciary duty: Nocton v Ashburton; confirmed in Australia by McKenzie v McDonald (1914) • Discretionary o Minimum equity to do justice o Allowances can be made • Purpose—to place the plaintiff in the position they would have been in had there been no breach: Re Dawson; Nocton • Exemplary Damages not awarded for breach of fiduciary duty: Harris v Digital Pulse (breach of confidence) o cf. NZ & Canada—available where fiduciary sets out deliberately to deceive Recoverable Heads of Damage • Economic loss • Non-economic loss o pain, suffering, nervous shock, and injury to Ps feelings o ← psychological damage Discretion • Discretionary: Day v Mead • Discretionary nature affords flexibility: Talbot’s case (TV show—awarded for loss of opportunity, license fee for use of idea—whatever meets justice of the case) • Interest can be awarded on equitable compensation: Pilmer per Kirby J Causation • Sufficient link of causation required between acts (eg of fiduciary) and damage suffered: Pilmer v Duke per Brennan, McHugh, Gummow JJ (some comments by other judges to the contrary) o Cf. other jurisdictions—fiduciary to be held strictly liable, even if their breach does not cause the damage suffered: London Loan Savings v Brickendon (Canada) (even if the fiduciary had made full disclosure, the principle would have gone ahead with the transaction → not relevant, fiduciary liable regardless) o ← fiduciary liable for everything if breaches equitable obligation: Re Dawson • Common sense test—sufficient connection between compensation claimed and breach: MaGuire v Makaronis Andrew Trotter LWB240 Principles of Equity • Causation required for liability in breach of trust: Youyang (trustee liable for payment of money out of trust to fraudulent third party—causation established); Target holdings v Redfern (causation required) Limiting Factors • Contributory negligence not relevant: Pilmer v Duke affirmed by Astley v Australia o ← fiduciary claims based on duty of fiduciary to act absolutely in favour of the principle—high standard • But—award is discretionary and the conduct of the parties may be relevant in determining the availability of the remedy • NZ and Canada—now imposing CL principles onto equitable compensation o Contributory negligence: Day v Mead (Solicitor failed to disclose an interest to client, P, but information widely and freely available  Court reduced damages for breach of fid relationship (conflict of interest with duty)) o Causation & Novus Actus: Canson Date of assessment • Losses to be assessed as at date of trial using full benefit of hindsight: Dawson o ← Can operate to increase the value where value of property has risen, etc o Cf. CL—date of breach • Where assessment at the date of trial would decrease the damages, may de facto assess at date of breach if justice demands it: Dawson (if value of property fluctuates, may claim at its peak) Quantum • To be assessed based on loss of plaintiff, not on gain of defendant: Warman v Dwyer o Account of profits for gain of defendant • Compensation awarded where acct of profits too difficult to asses: Fraser • Incidence of taxation irrelevant in assessment of compensation: Bartlett • Interest available on award: Pilmer per Kirby J Equitable Damages (Lord Cairns’ Act) • Available— o In lieu of or in addition to injunction or SP: Lord Cairns’ Act; Johnson v Agnew o In areas where damages would be available at CL: Judicature Acts Elements Andrew Trotter LWB240 Principles of Equity Must show • power to award SP or injunction; and • remedy was refused on discretionary grounds – D’s inconvenience greater than P’s so as to merit re
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