Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Wed, 5 Oct 2005 08:55:47 +0100 |
| Re: |
Say-Dee Pty Ltd v Farah Constructions Pty Ltd |
Further to Jonathon's posting, Tobias JA in fact goes
even further, holding in the next para [233] that:
On the foregoing basis, Mrs Elias and the two children
are liable to account for any profit or benefit they derived from the
acquisition of their respective interests in No. 15 as a result of Mr
Elias' and Farah's breach of their fiduciary duties. They hold those interests
on constructive trust for the joint venture. In other words he holds that the recipients of misdirected
trust property not only owe a strict personal liability in UE to make
restitution of the value of the property, but also hold the assets on
trust even though their consciences are unaffected by knowledge of the
trustee's breach. This then leads him to conclude that they must be strictly
liable to account for all the profits deriving from the property, a conclusion
which requires us to take an expansive view of the 'at the expense of'
requirement, and which opens up the whole question of whether D should
have to disgorge secondary profits to C where he has done nothing wrong.
Charles
--
Charles Mitchell
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