“A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.”
“The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions ‘for’, ‘on behalf of’, and ‘in the interests of’ signify that the fiduciary acts in a ‘representative’ character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.”
“Thus, what is required in all cases of ad hoc fiduciary obligations is that there be an undertaking on the part of the fiduciary to exercise a discretionary power in the interests of that other party. To repeat what was said by McLachlin J in Norberg, [Norberg v Wynrib[1992] 2 SCR 226 ] ‘fiduciary relationships … are always dependent on the fiduciary’s undertaking to act in the beneficiary’s interests’ (p 273). As Dickson J put it in Guerin [Guerin v The Queen[1984] 2 SCR 335 ], fiduciary duties may arise where ‘by statute, agreement, or perhaps by unilateral undertaking, one party has an obligation to act for the benefit of another’ (p 384).”
“The cases seem to me to decide that, where a person has assumed, either with or without consent, to act as a trustee of money or other property, ie, to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust.”
“The doctrine that time is no bar in the case of express trusts has been extended to cases where a person who is not a direct trustee nevertheless assumes to act as a trustee under the trust: Life Association of Scotland v Siddal [(1861) 3 De G F & J 58; 45 ER 800]. This extension of the doctrine is based on the obvious view that a man who assumes without excuse to be a trustee ought not to be in a better position than if he were what he pretends.”
“if one become my bailiff of his own wrong, without my appointment, he is accomptable to me.”
“A trustee de son tort closely resembles an express trustee. … The principle is that a person who assumes an office ought not to be in any better position than if he were what he pretends.”
“There are many instances in which a person who de facto exercises an office cannot defend himself by saying, when he is called upon to bear liability in consequence of his wrong, ‘I am not rightfully in the office, there is another man who may turn me out’. An executor de son tort is an instance in which a man incurs all the liabilities of an executor as to third persons, and he is not permitted to say, ‘I am not executor; there is another man who may take out probate.’ The answer is, ‘Your liability as to a third person rests upon your being executor de son tort; you have usurped the office and must bear the liabilities.’. … So, if a director were to set up in answer to a penalty under section 27 [a statutory penalty on directors of a company for failure to compile and send to the registrar of companies an annual list of the company’s shareholders], that he was not a director, that he was illegally elected, the answer would be, ‘You have acted as director, and were a director in your own wrong’.”
“2. TRANSFER OF SHARES 2.1 The Seller [ie JJAB] hereby irrevocably transfers its legal and beneficial interests in the Company Shares [ie the 324,205 shares in JJW Inc] to the Buyer [i.e. the Company] free from Encumbrance in consideration for€32,420,500.00 (the ‘Consideration’) to be paid on demand by the Buyer to the Seller in such way that is mutually agreed by the Buyer and the Seller. 2.2 Upon receipt of the Consideration by the Seller, completion of the transfer of the Company Shares pursuant to this Agreement shall take place immediately, when 2.2.1 the Seller shall deliver to the Buyer a share transfer [form] duly executed by the Seller in respect of the Company Shares in favour of the Buyer and procure that the Company shall register such transfers and issue and deliver to the Buyer a certificate representing the Company Shares in the name of the Buyer; and 2.2.2 the Seller shall, at the request of the Buyer, do and execute or procure to be done and executed all such acts, deeds, documents and things as may be reasonably necessary to give effect to this Agreement.”
“The lien arises by operation of law unless its exclusion can be objectively inferred from the terms of the documents and the nature of the transaction”
“No doubt the vendor got a higher price by agreeing to accept payment in the way he did, and taking his chance of capital being subscribed or capital being borrowed to an amount sufficient to pay him. He says in fact, ‘Half of the first capital moneys that come in to the extent of£6000 is to be my purchase-money.’ No day for payment was named: he agreed to receive his purchase-money if and when capital should come in. He got for his property a charge upon and a right to the capital of the company to the extent of£6000 when it came in. To my mind it is clear that he intended to rely on that fund for payment, and intended that the company should have the means of borrowing. This is quite inconsistent with a lien which would probably make the company unable to pledge their property.”
“the rule Page 26 of law upon which the doctrine of an unpaid vendor’s lien depends must be very frequently influenced by the particular circumstances of each case in which it is said to arise”
“But then it is said by Mr Budgett that no loss has accrued to the cestuis que trust by reason of his want of diligence:- he says that if he had been diligent, no greater good would have come to the Billing family than has come to them. In my judgment, the burden of sustaining any such argument as that rests distinctly upon the trustee who sets it up. When the cestui que trust has shewn that the trustee has made default in the performance of his duty, and when the money which was the subject of the trust is not forthcoming, the cestui que trust has made out, in my judgment, a prima facie case of liability upon the trustee, and if the trustee desire to repel that by saying that if he had done his duty no good would have flowed from it, the burden of sustaining that argument is plainly upon the trustee.”
“Where the plaintiff provides evidence of loss flowing from the relevant breach of duty, the onus lies on a defaulting fiduciary to disprove the apparent causal connection between the breach of duty and the loss (or particular aspects of the loss) apparently flowing therefrom.”
“No such issue arises in the present case, however. The appellants are not seeking to lessen their liability by reference to what would have happened if the 891,761 shares had not been misappropriated. They emphasise that the shares have in fact become worthless.”