An alleged commission agreement to share fees equally does not give rise to an institutional constructive trust over the fees earned, because the obligation is one of debtor and creditor, not trustee and beneficiary. Vulnerability to breach of contract is insufficient to establish a fiduciary duty; what is required is vulnerability in the exercise of powers or discretions conferred by the relationship. Accordingly, s 21(1)(b) of the Limitation of Actions Act 1958 (Vic) does not exclude the limitation period for such claims. A party will not be granted leave on appeal to rely on a cause of action expressly disavowed before the judge below, absent the most compelling considerations.
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