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:
II: EQUITABLE PROPRIETARY
REMEDY OF CONSTRUCTIVE
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
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
* 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
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