© unitec new zealand 1 excellence in equity: new developments in conflict of interest diana ayling...
TRANSCRIPT
© Unitec New Zealand1
Excellence in Equity:New developments in conflict of
interest
Diana AylingPatricia Finlayson
Unitec Business School
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What is a fiduciary?
• A fiduciary is a person who undertakes to act in the interest of another person.
• Examples:
– Trustee – beneficiary
– Solicitor – client
– Employee – employer
– Director – company
– Partners
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What are the obligations of a fiduciary?
• Duty to avoid conflicts of interest.
• Duty to act in good faith in the interests of the other party.
• Duty to use powers for a proper purpose.
• Duty to act with reasonable care, diligence and skill.
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Who are the new fiduciaries?
• Government departments and employees
– S. v Attorney General, 2003
• Directors – shadow, de facto and promoters
– Thexton v Thexton, 2001
• Trustees – discretionary beneficiaries (mere power)
– Kingston v Foreman, 2004
• Trustees – newly vested beneficiaries
– Johns v Johns, 2004
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Limits to fiduciaries responsibilities
• Mediators are not fiduciaries
– Haines v Carter & Anor, (2006)
• Trustees of iwi trusts
– Fenwick v The Trustees of Nga Kaihautu O Te Arawa Executive Council and Others, (2006)
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Criminal Liability of Trustees
• S 229 Crimes Act 1961
– R v Simcock, (2004)
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New developments in conflict of interest
• Two common situations
– Failure to recognise
– Wilful ignorance
• Bristol and West Building Society v Mothew, (1996)
• Maguire v Makaronis, (1997)
• Pilmer v Duke Group Ltd (in liq), (2001)
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Remedies
• Damages
• Account for profits
• Rescission
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Implications for law teachers
• Full coverage of fiduciaries obligationsfor:
– Company directors
– Government officers
– Financial intermediaries
– trustees
• Curriculum review
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Conclusion