EQUITY - fiduciary obligations - scope of duty - company’s contracts to provide crushing services to a mine were preformed by a director’s and employee’s own companies without disclosure - whether constituted a breach of duty - whether inability to company to preform its obligations a defence - whether acquisition of seperate quarry in Victoria within scope of duty - scope of fiduciary duty identified by company’s actual course of conduct - primary judge correct to hold that performance of company’s exisiting contracts was breach of duty, and acquisition of seperate quarry in Victoria not in breach of duty.
EQUITY - remedies for breach of fiduciary duty - account of profits - contracts entered into by companies controlled by director and employee in breach of fiduciary and statutory duties - contracts incapable of rescission - whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189; [1938] HCA 16 precluded account of profits - consideration of breadth and continuing applicability of principles in Peninsular and Oriental Steam Navigation Company v Johnson - principles only applied to cases where fiduciary acquires property when acting on behalf of principal - principles inapplicable to contract for the supply of services.
EQUITY - remedies for breach of fiduciary duty - account of profits - discretionary witholding of relief - where principal is less than full informed, but nonetheless “stands by” while fiduciaries continue to derive profits - whether principal had sufficient information to make it inequitable to stand by while profits continued to be made, and thereafter to obtain an account of those profits - profits made after October 2011 held not to be within account.
APPEAL - procedural fairness - complaint that aspects of reasoning at first instance denied procedural fairness - appeal by rehearing - not said that different evidence would have been led - no retrial sought - appellate court empowered and required to make appropriate findings - any denial of procedural fairness incapable of being material - in any event no denial of procedural fairness.
EVIDENCE - coincidence evidence - whether primary judge’s reasoning contravened coincidence rule - evidence tendered without objection - reasoning concerning company’s actual course of conduct not amount to use of evidence contrary to s 95 of Evidence Act 1995 (NSW).
John Kelly SC and Dr Christos Mantziaris appeared for the Appellants and Cross Respondents.
Reasons for the decision can be found here.