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Equitable Personal Remedies Ii Notes

Law Notes > Equity Notes

This is an extract of our Equitable Personal Remedies Ii document, which we sell as part of our Equity Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Equity Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

EQUITABLE


PERSONAL


REMEDIES


II:

EQUITABLE

PROPRIETARY


REMEDY

OF

CONSTRUCTIVE


TRUSTS

EQUITY

40 EQUITABLE COMPENSATION


Restore

persons

who

have

suffered

loss

to

the

position

in

which

they

would


have

been

if

there

had

been

no

breach

of

the

equitable

obligation.

* Compensation

for

a

breach

of

an

equitable

obligation


o Eg.

fiduciary

obligation

* Aims

at

restitution

or

restoration

rather

than

compensating

for

harms


done

* Discretionary


Proof

of

an

adequate

or

sufficient

connection

between

the

equitable


compensation

claimed

and

the

breach

of

fiduciary

duty

* Maguire

v

Makaronis


o Law

firm

lent

funds

to

a

client

to

purchase

a

property,

which

was


secured

by

a

mortgage.

It

wasn't

disclosed

that

the

firm

was

the


mortgagee

and

the

client

thought

a

bank

was

Firm

had

a

retainer


to

act

for

the

client.

The

client

defaulted

on

the

second

payment


and

the

firm

claimed

for

unpaid

funds,

while

client

claimed

breach


of

fiduciary

duty.


o HELD:

breach

of

duty

of

interest

and

there

was

no

informed


consent.

Equitable

compensation

for

the

funds

advanced,

with


interest.

* Once

a

breach

of

fiduciary

duty

has

been

shown,

it

is

no

longer

a

defence


to

a

claim

of

compensation


o The

need

to

show

that

the

defendants

breach

was

a

cause

of

the


plaintiffs

loss


Flexibility

of

Equitable

Compensation:

* Moulded

to

meet

the

justice

of

the

case


o Based

on

the

plaintiff's

loss

and/or

the

defendants

gain


o Awarded

to

effect

restitution

even

where

the

defendant

has

made


no

gain


Interest:

* May

award

simple

or

compound

interest

* Focus

on

the

interest

that

would

have

accrued

had

the

plaintiff

invested


the

funds

in

an

alternative

manner


o Only

as

an

element

in

restitution

not

a

punishment


EQUITY

41

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