Monday, April 1, 2019
Chirnside v Fay
Chirnside v FayI Introduction On 6 kinsfolk 2006 the Supreme Court released its important and controversial judgment in Chirnside v Fay . Elias CJ and Tipping and Blanchard JJ took very different progressiones to the issue of whether or non to dish out an sincere honorarium to the defendant. This essays primary aim is to provide a detailed comment of their Honours differing judgments as to that issue and also outline the authors own opinion as to what surface should be adopted. This essay starts with a brief commentary of the incident situation and the general clean-living play behind true earningss. It and consequently describes the differing burn downes interpreted in Chirnside . Next, the author makes a principled telephone line that the hand both(prenominal) approach should be preferred when considering whether or not to grant an fitting.II Analysis of Chirnside v FayA F mask SituationThe plaintiff, Mr Fay (MF), and the defendant, Mr Chirnside (MC), were bot h space developers. They had known each other since the early 1980s and in 1997 distinguishable to enter into a project together in respect of an doddery building. They had Harvey Norman (HN) in mind as the potential anchor tenant. Although MF made the initial contact with HN MC became almost entirely responsible for dealing with them and entered into a conditional contract in his cognomen only. HN made the final commitment to the project on 7 July 2000. By that time MC had gone cold on MF, by and large due to his limited intricacy. Instead of telling MF this MC think to complete each the transactions through with(predicate) Rattray Ltd while convincing MF that he himself was no longer involved. MF argued that there had been a league and that he was empower to proceeds, which was denied by MC. The project was ultimately completed. MF sued.By the time this caseful got to the Supreme Court the only viable type of action that MF had was recrudesce of fiduciary duty. The Supreme Court was firm in finding that MC had jailbreaked his fiduciary obligations.B Equitable bushel there is a presumptive requirement that once a wound of fiduciary duty has been established the errant fiduciary must disgorge all take ins made by dint of the spite. That is commonly referred to as the no-profit rule. There are two main(prenominal) exceptions to that rule. The first is where there has been some etymon musical arrangement for profit sharing. The second is where the court decides to exercise its discretion to grant the errant fiduciary an allowance for their skill, labour or expertise in making the gain. The onus is on the defendant to satisfy the court that an allowance should be made. In Chirnside there was an antecedent profit-sharing arrangement in the midst of the parties. Because of that agreement MC was entitled to a deduction of 50 per cent to the quantity he had to figure to MF. In addition to that, MC argued that he was entitled to an allow ance due to the effort he exerted in gaining the profit from the articulation conjecture. There were two different approaches taken to this issue both in regards to the actual law itself and the application of it.1 Elias CJElias CJ took a strict approach to the issue of when an allowance should be allow. Her Honours main point was that allowances should expect exceptional, as Lord Templeman and Lord Goff in Guinness Plc v Saunders adumbrateed they should be. She expressed the deliberate that an allowance should generally only be permitted if the fiduciarys shift was wholly unacquainted(p) and the beneficiary was-wholly undeserving, as in Boardman v Phipps . She accepted, however, that there had been cases where allowances had been grant patronage the fiduciary not being blameless. She was of the opinion that the allowances were granted in such(prenominal) cases due to the fiduciary creating extraordinary profits outside the scope of what was envisaged in the fiduciary rela tionship while not having committed any substantial wrongdoing. To evidence this point she analysed the cases of OSullivan v Management Agency , demesne Realties v Wignall , Badfinger Music v Evans , and Say-Dee v Farah Constructions . She suggested that in those cases the fiduciary had dod substantial and unthought-of profits and in most of them the wrongdoing was mere non-disclosure, which supported her proposition. Thus, she was of the dupe that an allowance could only be granted here if MC could plant that he was wholly innocent and MF was-wholly undeserving or that he created extraordinary profits, essentially outside the scope of the fiduciary undertaking, while not having committed any significant wrongdoing.She then applied that stockation to the facts. She held that MC had committed significant wrongdoing because by actively concealing his breach of duty at a vital time he had today antagonized the obligation of loyalty which is the cornerstone fiduciary obligation . Moreover, she was of the opinion that the work which MC had done was expected of him and thus was within the scope of the joint imagine giving rise to the fiduciary obligations. Based on those two findings she denied MC an allowance. She did, however, make two additional points. Firstly, she saw no significance in the fact that MCs work had been undertaken before he had committed the breach because he was required to account for all profits made through the opportunities he obtained as a fiduciary which covered the whole joint venture. Secondly, the fact that MC was entitled to a 50 per cent deduction by dint of the antecedent agreement was important to her because she felt that if an allowance were to be granted he would essentially be receiving the full benefit he business leader befool expected had he been wholly loyal which would significantly undermine the obligation of loyalty. 2 Tipping and Blanchard JJTipping and Blanchard JJ took a tolerant approach to the issue of wh en an allowance should be granted. They expressed the take that what a court should consider is whether, on the overall balance of the equities between the parties, it is fair and expert to grant an allowance. In considering that, all the relevant circumstances must be taken into account. The center of this exercise was to suffice to a fair conclusion as to what the fiduciary had to account. Thus, unlike Elias CJ they were of the opinion that the significance of the defendants breach and the personal in ready that they put up into creating the profits were only factors to be taken into account rather than criteria that had to be satisfied. However, they did emphasise the need for restraint when astute the amount of an allowance. That is, they expressed the view that the amount of allowances should generally not be liberal in enact to deter others from committing breaches of fiduciary duty. Their main authority for this approach was OSullivan , Warman International , Estate Re alities , and Murad v Al-Saraj . They analysed Saunders , which was a crucial case for Elias CJ, and distinguished it base on the finding that the obligations in that case were expressly accepted whereas in this case the obligations were imposed. They stated that it would be dirty and conflict with the pillars of truth to accommodate such a strict approach as was done in Saunders in a case such as this. They then applied that reasoning to the facts. There were four key factors which led to them vox populi that it was fair and just to grant MC an allowance. Firstly, they held that MCs breach was not significant because it was not ambidextrous or dishonest and MC genuinely believed he was entitled to act as he did. Secondly, they held that most of MCs work was done prior to his breach of duty and as such the breach did not facilitate in any way the making of the relevant profit. This was relevant to them because due to that ruling there could be no suggestion in their minds that by granting an allowance the fiduciary relationship would be undermined by encouraging fiduciaries to act in breach of duty. Thirdly, they held that MC had contributed far to a greater extent than effort in delivery the joint venture to profit than MF. In particular, MC had incurred all statutory and financial liability and engaged in most of the negotiations with HN on his own. Fourthly, had the project been completed with MF then it was clear that he would have agreed to recognise MCs dis residualate contribution in a mediocre way which would have probably included an element of disproportionate profit sharing. Having found that an allowance was suitable they then exercised restraint in calculating the amount of the allowance, which they ultimately considered to-be $100,000. 3 ConclusionThus, the key distinction between these two approaches is that while Elias CJ believed it was necessary to keep allowances exceptional by adopting a strict approach based on general elements T ipping and Blanchard JJ considered the issue by asking a much blanket(a)er question based on notions of fairness. trinity Authors Opinion as to the Appropriate Approach to AllowancesEvery court of equity has the capacious aim of doing justness between the parties. Indeed, equity was originally real in order to address the injustices that resulted from the strict application of common law rules and since then it has been accordantly stated that equitable remedies must be fashioned to fit the nature of the case and its particular facts. It would be more consistent with these blanket(a) goals for the end of whether to grant an allowance to not be based on general rules but rather on an overall sound judgement of the particular facts and the merits and claims of the defendant. That is because a court is much more able to come to a decision that is fair between the parties if it is able to take account of all the circumstances of the case and not be limited to discussing a coupl e of general issues as courts that adopt the strict approach are. age the major issues in deciding whether to grant an allowance provide oftentimes be the moral blameworthiness of the defendant and the personal input that they put into creating the profits, which are the two issues addressed under the strict approach, there are other important issues that can only be properly taken into account under a colossal approach. For example, the circumstances in which the breach occurred , the circumstances in which the gains or profits were derived , the beneficiarys reliance on the fiduciarys involvement in the arrangement , and the extent to which the defendant has already been compensated through professional fees . The case of Chirnside illustrates this point that in taking a roomy approach the court is more likely to come to a decision that is fair and just. In Chirnside it was clear that although the plaintiff had breached his fiduciary obligations it would be unfair if he was not granted an allowance. That was because the defendant had almost singlehandedly brought the joint venture to profit and the plaintiff was originally going to compensate him for his significant efforts. Elias CJ took a strict approach to the case and due to its rigid nature she was unable to do justice between the parties. However, in taking a broad approach the main judgment was able to take account of all the circumstances and reach a fair and just decision. Thus, courts should use the broad approach because they leave be more able to reach fair and just decisions and be more in line with foundational aspects of equity.Furthermore, a broad approach is more consistent with the important equitable maxim of he who seeks equity must do equity. That is, under a broad approach the court will always be able to recognise whether the profits to which the beneficiary is entitled are in the nature of a godsend and as such rule that the beneficiary should provide some recompense for the work that has produced it because equity is not in the business of unjustly enriching plaintiffs.Furthermore, the broad approach is a lot more flexible than the stricter approach and as Tipping J stated in Chirnside it is un suited to adopt rigid equitable approaches unless the justification for such an approach is compelling. The reason for that is that one of the foundational aspects of equity was its curative flexibility in that it was first developed to address the rigour and rigidness of the common law. The way in which one typically makes such an argument is to suggest that the rigidity of the stricter approach tends towards much greater plasteredty, which is particularly desirable due to the significant vulnerability and broad liability involved in the application of the approach, and as such it is necessary in the overall interests of justice to adopt a rigid approach. In this case, while adopting the stricter approach would create more certainty it is not particularly imp ortant to do so here because the burden of proof is on defendants who will have breached some of their obligations and allowances are usually modest. Accordingly, there is no compelling reason in this regard to adopt a stricter approach.An argument that is frequently postulated in opt of a stricter approach is that such an approach will be more effective in deterring fiduciaries from acting in breach of their duties. It seems farfetched to suggest that a defaulting fiduciary will not engage in certain behaviour for fear that it will be unremunerated. Indeed, many cases show that a fiduciary will engage in conduct in breach of duty regardless of the potential sanction. Moreover, if equitys true goal was deterrence then a defaulting trustee would not be allowed to retain a proportion of the profit made from acquiring an asset with mixed funds. Also, courts that adopt the broad approach still pay regard to this concern by use restraint when they calculate the allowance. Thus, it seems unsound to not adopt a broad approach based on notions of deterrence.It is sometimes argued that allowances should never be granted because the making of an allowance means that there is no sanction for the defendants conduct. This argument is ill-conceived. The purpose of an allowance is to properly fix compensation or reparation on the basis of disgorgement of profits properly analysed, not to apply a sanction or punishment for the breach of duty. ConclusionIn conclusion, it is clear that the approaches taken by Elias CJ and Tipping and Blanchard JJ are very distinct and will reasonably frequently lead to differing results, as in Chirnside itself. It is this authors opinion that the broad approach used by Tipping and Blanchard JJ is the more appropriate approach because it is more in line with foundational aspects of equity and the arguments in favour of the strict approach are not compelling enough to go against that. Given the main judgment in Chirnside , and Estate Realities , it is likely that the broad approach will be used in New Zealand for the foreseeable future.