| Autor: |
MARTINO, JESSE |
| Předmět: |
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| Zdroj: |
University of Western Australia Law Review; Jun2023, Vol. 50 Issue 2, p26-63, 38p |
| Abstrakt: |
The article analyses the High Court of Australia's recent decision: Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd ('Ancient Order'). It reasons that in light of the analysis in Ancient Order, rules of remoteness are the most principled way of explaining how the court limits the extent of a fiduciary's liability to disgorge gains. It proposes a model to circumscribe what circumstances should influence when gains may be too remote. The model consists of four propositions: rules of remoteness will operate when a breach does not involve misusing trust property; intended gains resulting from deliberate breach will never be too remote save to the extent that some gains exceed that which were intended; nondeliberate and unintended gains may be too remote if they are not reasonably foreseeable by a person in the fiduciary's position at the time of breach; and a correlation between the gain and the plaintiff's loss will generally suggest that the gains are not too remote (though not always). The article develops the propositions and concludes by assessing its potential ramifications. [ABSTRACT FROM AUTHOR] |
| Databáze: |
Complementary Index |
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