mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Pacific Brands Sports &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 ; (2006) 149 FCR 395 
Outcome: cited
In their written submissions this amalgam is explained in the following way, i.e. Bell and Sladojevic "were promoting the benefit of their licensed product through Tiltform Australia and the Applicants were entitled to consider them as within their confidence". Relying, in particular, upon the terms of the licence agreements with Tiltform Australia, it is said investors in the position of the applicants would know they (i.e. the applicants and Bell and Sladojevic) "were in it together, would believe that the promoters' actions and advices would be as much in their [i.e. the applicants'] interest as their own, and would be made for the mutual purposes of the relationship, and not for the promoters' own self interest". I have indicated earlier in these reasons that the licence agreements contain clauses favourable to the licensor I would instance intrusive powers to control the licencee which are commonly found in exclusive licences involving the use and exploitation of intellectual property: cf Pacific Brands Sports &amp; Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 ; (2006) 149 FCR 395.
Case: Tracy v Mandalay Pty Ltd [1953] HCA 9 ; (1953) 88 CLR 215
Outcome: cited
I have set out what is said to be the basis of the promoters claim at some length for this reason. I have had considerable difficulty in divining precisely what that basis might be. As pleaded, it suggests that the circumstances gave rise to a fiduciary relationship between each of Bell and Sladojevic as promoters of Tiltform Australia on the one hand and the WA investors on the other. The relevant relationships, I would add, were not with Tiltform Australia as such, as is ordinarily the case with promoters of companies: see Tracy v Mandalay Pty Ltd [1953] HCA 9 ; (1953) 88 CLR 215 at 241-242. How the pleaded relationship emerges from the particulars is by no means clear. Presumably its consequence, though, was that Bell and Sladojevic were obliged to act in the interests of the WA investors.
Case: United Dominion Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1
Outcome: cited
In written submissions it was suggested initially that they were promoters "because of the clear benefits to be derived by them from a share take up in [Tiltform Australia]". The decision of the High Court in Tracey v Mandalay Pty Ltd , (esp at 241) was in this relied upon for support by way of asserted factual analogy. Those submissions, though, went on to make the assertion of a fiduciary relationship akin to that of proposed joint venturers: United Dominion Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1. This joint venture which could only be said to be between the WA investors and Bell and Sladojevic if the alleged joint venturers' separate corporate entities (i.e. Tiltform Licensing and Tiltform Australia) were disregarded seems to be focussed on Bell's and Sladojevic's obligations as promoters of "the benefit of their (sic) licensed product through Tiltform Australia". I note in passing that no claim is made against Bell and Sladojevic as knowing participants in a breach of duty by Tiltform Licensing. Presumably, in this version of the joint venture, Bell and Sladojevic as fiduciaries were obliged to act in the mutual interest of themselves and the investors within the scope of the proposed venture. 258 In supplementary submissions, the "proposed joint venture" basis continued to be insisted upon, although apparently as an amalgam of the two previous approaches advanced, i.e. they were promoters of Tiltform Australia in the take up of the shares and of the proposed joint venture. The nature of the fiduciary duty owed in this amalgam submission is entirely unclear. Fully informed consent apart, were Bell and Sladojevic obliged to act in the interests of the proposed joint venturers (including themselves) to the exclusion of their own, several personal interests? Or were they obliged to act in the interests of the investors to the exclusion of any personal interest of their own? 259 Because of the difficulties I have in understanding how precisely the promoter fiduciary relationships are said to have been generated and what was the nature of the fiduciary wrongdoing allegedly engaged in in light of the relationships, I will give in relatively short form my own conclusions as to why I consider that there was, in the circumstances, no fiduciary relationship between Bell or Sladojevic and the WA investors. In so doing I have attempted as best I can to take account of the submissions advanced by the applicants.
Case: Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: Commonwealth Bank of Australia v Smith (1991) 42 FCR 390
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410
Outcome: cited
It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow &amp; Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. the subordination of self interest to joint interest: Gibson Motorsport Merchandise Pty Ltd at [11]-[13]; (iv) a person who provides information, suggestion or advice to another upon which that other may reasonably be expected to rely is not for that reason alone necessarily in a fiduciary relationship with that other, though that person will be a fiduciary if the factual matrix is such that that other is in the circumstances reasonably entitled to expect that the information provider, etc is acting in the matter in that other's interest: cf Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165; Commonwealth Bank of Australia v Smith (1991) 42 FCR 390; (v) the loyalty obligation imposed on a fiduciary is that he or she cannot (a) in any matter within the scope of the fiduciary relationship (see Bertchnell v Equity Trustees Executor &amp; Agency Co Ltd [1929] HCA 24 ; (1929) 42 CLR 384 at 408) have a personal interest or an inconsistent engagement with a third party; or (b) use his or her position to own, or to a third party, possible advantage, unless this is freely and informedly consented to by the person(s) to whom loyalty is owed, or is authorised by law: Chan v Zacharia [1984] HCA 36 ; (1984) 154 CLR 178 at 199; Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 at 113; (vii) outside of commercial agency, partnership and trust relationships, care needs to be taken in concluding that commercial parties are in a fiduciary relationship for some or all purposes - not because a commercial relationship cannot be fiduciary, but because such a relationship, commonly, possesses characteristics (e.g. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541.
Case: Catt v Marac Australia Ltd (1987) 9 NSWLR 639
Outcome: cited
There is, in my view, no proper basis to support the fiduciary claims. I reject them. I would add for the sake of completeness that while I have had the decisions in Catt v Marac Australia Ltd (1987) 9 NSWLR 639 and Hill v Rose [1990] VR 129 pressed upon me by the applicants, I have found them to be of no real assistance in resolving the present question. As is common where fiduciary relationships are claimed to arise ad hoc, it will be the particular circumstances of the case in question which will ordain the appropriateness or otherwise of a fiduciary finding. It is unnecessary that I comment further on the above two cases: cf Meagher Gummow &amp; Lehane at 5-015.
Case: Hill v Rose [1990] VR 129 
Outcome: cited
There is, in my view, no proper basis to support the fiduciary claims. I reject them. I would add for the sake of completeness that while I have had the decisions in Catt v Marac Australia Ltd (1987) 9 NSWLR 639 and Hill v Rose [1990] VR 129 pressed upon me by the applicants, I have found them to be of no real assistance in resolving the present question. As is common where fiduciary relationships are claimed to arise ad hoc, it will be the particular circumstances of the case in question which will ordain the appropriateness or otherwise of a fiduciary finding. It is unnecessary that I comment further on the above two cases: cf Meagher Gummow &amp; Lehane at 5-015.