JUNIQ • EQUITY LAW
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CHAPTER 3

Fiduciary Duties and Remedies for Breach

Chapter purpose. The no-conflict and no-profit rules; misuse of position; informed consent; account of profits; constructive trust; equitable compensation; allowances; and choosing the remedy that matches the wrong.

3.1 From relationship to breach

After establishing fiduciary status and scope, the next task is to identify the loyalty rule engaged. The no-conflict rule restrains a fiduciary from acting where personal interest conflicts, or may conflict, with duty. The no-profit rule prevents unauthorised gains obtained by reason of the fiduciary position or opportunity. The strictness of the rules is prophylactic: equity seeks to remove temptation and preserve undivided loyalty.

3.2 Conflict and profit are related but analytically distinct

A fiduciary may breach because personal interests conflict with duty even before a measurable profit is made. Conversely, a gain may be recoverable because it was obtained through the position even if the principal cannot prove an equivalent loss. This is why an account of profits is conceptually different from compensation.

3.3 Account of profits

An account of profits focuses on stripping unauthorised gain rather than measuring the claimant’s loss. Warman International is central because it shows that the remedy can be adjusted where the fiduciary’s own skill, effort, capital or other factors contributed to profits. The purpose is not punitive confiscation but principled disgorgement of gains attributable to the breach.

3.4 Equitable compensation

Equitable compensation seeks monetary relief for loss caused by breach of equitable duty. The exact approach depends on the duty and context. Youyang is a significant High Court authority on breach of trust and restoration/compensation. A strong answer does not simply label every monetary remedy “damages”. It explains whether the relief is substitutive, restorative or gain-based and why the selected measure fits the breach.

3.5 Proprietary responses and constructive trusts

In some cases, equity may recognise a proprietary response over an asset or its traceable substitute. That can be especially powerful in insolvency. However, a constructive trust is not a universal response to fiduciary breach. The court must identify the doctrinal basis and remedial consequences rather than assuming that every breach automatically transfers beneficial ownership.

3.6 Remedy selection

Ask what the client wants: reversal of a transaction, recovery of a specific asset, stripping of profit, restoration of a trust fund, compensation for loss, or protective relief. Then match the remedy to the established wrong, causation and available property. Remedies are a distinct stage of analysis, not an afterthought.

Exam rule map

Leading authorities

Chan v Zacharia (1984) 154 CLR 178
Strict application of fiduciary obligations where a former partner appropriated an opportunity connected with the partnership.
Warman International Ltd v Dwyer (1995) 182 CLR 544
Leading High Court authority on account of profits, causation of gains and allowances for skill and effort.
Maguire v Makaronis (1997) 188 CLR 449
Important High Court authority on fiduciary obligations, informed consent and the strict approach to solicitor-client conflicts.
Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484
High Court authority on breach of trust and monetary relief designed to restore the trust position.

Course source spine

These sources are teaching/research references. Primary legislation and judgments control where commentary differs.

FAQs — questions

FAQ 1. Must the principal prove loss to obtain an account of profits?

FAQ 2. Is a constructive trust automatic after every fiduciary breach?

FAQ 3. Why can a fiduciary receive an allowance after wrongdoing?

FAQ 4. What is the safest exam structure?

Multiple-choice questions

MCQ 1. An account of profits is principally designed to:

  1. Compensate emotional distress.
  2. Strip gains attributable to fiduciary breach.
  3. Punish criminal conduct.
  4. Transfer legal title automatically.

MCQ 2. Warman International is especially important for:

  1. Allowances and attribution of profit.
  2. Three certainties.
  3. Charitable purpose.
  4. Notice in assignment.

MCQ 3. Youyang is most closely associated with:

  1. Breach of trust and restorative monetary relief.
  2. Criminal fraud.
  3. Company incorporation.
  4. Charitable trusts.

MCQ 4. Fully informed consent is best analysed:

  1. Before deciding whether any fiduciary relationship exists.
  2. After identifying the duty/scope and the conduct that would otherwise breach it.
  3. Only at remedy stage.
  4. Never in fiduciary cases.

Short-answer questions

Short answer 1. Distinguish account of profits and equitable compensation.

Short answer 2. What is the role of an allowance?

Short answer 3. Why does remedy selection matter in insolvency?

High-distinction IRAC problem

A senior employee, Priya, uses confidential commercial information and a customer opportunity obtained through her fiduciary role to establish a competing venture. The venture earns $2 million over three years, but Priya argues that most of the profit resulted from her personal expertise and later market growth. The former employer seeks all profits and a constructive trust. Advise on remedies.

Answers — next page →

Darius / 4KTrust / A4Effort / Desserto / Ophore

The actual Week 4 tutorial is now part of the Chapter 3 learning map. It requires separate analysis of Darius in his capacities as solicitor/adviser, trustee of 4KTrust, executor and beneficiary of Oscar’s estate, and investor on behalf of the trust. The key examination discipline is to identify the claimant and the specific fiduciary undertaking before asking whether a conflict, unauthorised profit, misuse of information, or breach of trustee investment duties arises. The complete facts supplied in the tutorial are used to structure the Chapter 3 model analysis.

Tutorial 3 (Week 4) - integrated problem map