3 pieces from UniSA Student Law Review vol 2 (2016)
What Shall We Do With The Dishonest Fiduciary? The Unpredictability Of Allowances For Work And Skill by Bronwyn Arnold
Fiduciaries who breach their obligations by making a profit may apply to the courts for an allowance for the work and skill that generated the profit, but it is unclear whether a court will indulge the application if the fiduciary’s breach was tainted with dishonesty. There are two different approaches available to the courts when faced with a dishonest fiduciary applying for an allowance. Courts that choose the first approach will rely on Boardman v Phipps and award an allowance that reflects the fiduciary’s conduct. Courts that follow the second approach will ignore the fiduciary’s dishonesty by relying on Warman International Ltd v Dwyer, and will award an allowance to prevent the principal’s unjust enrichment. The availability of the two different approaches has resulted in inconsistent outcomes and confusion in the law. This article explores the justifications for adopting each of the available approaches whenever a dishonest fiduciary applies for an allowance. Part I outlines the progression of the case law since Boardman v Phipps. Part II describes the rationales for adopting each of the approaches to awarding allowances to dishonest fiduciaries. It concludes that the conduct-based approach in Boardman v Phipps should be rejected, and that the unjust enrichment-based approach provided by Warman International Ltd v Dwyer should be adopted by the courts when awarding allowances to defaulting fiduciaries.
Allowances And The Search For Justification by Jessica Palmer
This article begins in Part I with an overview of Arnold’s position and moves on to consider the issue of dishonesty in Part II and the notion of unjust enrichment in Part III. Part IV explores two narrower grounds upon which allowances could be justified and concludes that neither dishonesty nor unjust enrichment provides a sound basis for the awarding of an allowance to a breaching fiduciary.
Allowances For Breaching Fiduciaries To Ensure That The Principal Who Seeks Equity Must Do Equity: Why Not Quantum Meruit? by Anja Kantic
This article considers the potential application of unjust enrichment on a quantum meruit basis to the assessment of allowances for breaching fiduciaries. It briefly outlines the jurisprudential basis for these allowances and then explores the role of unjust enrichment in awarding relief to a breaching party to a contract. Although such a party has breached the contract, quantum meruit operates to ensure that they are fairly compensated for work done or effort expended. The article argues that there are substantial similarities between the position of the party who has breached a contract and that of the breaching fiduciary. It is therefore useful to explain the potential application of quantum meruit to the assessment of allowances for breaching fiduciaries to ensure that the principal who seeks equity must do equity.
First posted 2016-12-17 08:17:35
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