Class Notes (838,988)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)

10 Monetary Remedies

4 Pages
Unlock Document

All Professors

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
More Less

Related notes for JSB171

Log In


Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.