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Fiduciary Duties, PQ structure - Coggle Diagram

- - - - test: whether they have undertaken to act exclusively on other's behalf in conducting other's affairs
        
        express undertaking to exclude own interests
        
        objective assessment of circumstances shows such an undertaking
      - 'arms length' commercial relationship
        
        looking out for own interests in a business interaction - no fiduciary duty
    - - Mitchell v Sheik Mohamed
- - - - avoiding conflicts of interest
      - not making unauthorised profits
      - duties = proscriptive
        
        NOT prescriptive
        
        Breen v Williams
        
        positive duty to do something
        
        (means you must NOT do something)
  - - - very strict
        
        Boardman v Phipps
    - - by contract
        
        Kelly v Cooper
        
        Armitage v Nurse
      - end of relationship
        
        CMS Dolphin v Simonet
        
        Foster Bryant Surveying v Bryant
  - - - Tito v Waddell (No. 2)
- - - - b) fact based (Hopcraft)
  - - - b. no profit
        
        c. other/non-fiduciary?
        
        which remedies are available? which are preferred?
        
        a. personal remedy (to reviver what loss?)
        
        b. proprietary (if shares that have appreciated etc. ) (over what gains?)
        
        remember concerns about bribes, increased profits, substitutability
        
        c. (quickly) other possible remedies (ex tort, contract)