Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq)

(2022) 398 ALR 658; [2022] NSWCA 12

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Fiduciary obligations
3. › Scope of duty
4. › Director and employee of company
5. › Whether causing personal companies to perform company's existing contracts was breach of duty
6. › Whether inability of company to perform obligations a defence
7. › Whether acquisition of separate quarry in another state within scope of duty
8. › Scope identified by company's actual course of conduct
1. Equity
2. › Remedies for breach of fiduciary duty
3. › Account of profits
4. › Whether unavailability of rescission precludes account of profits
5. › Contracts for supply of services incapable of rescission
6. › Whether principles in Peninsular and Oriental Steam Navigation Co v Johnson (1938) 60 CLR 189 apply to service contracts
1. Equity
2. › Remedies for breach of fiduciary duty
3. › Account of profits
4. › Discretionary withholding of relief
5. › Standing by
6. › Whether principal had sufficient information to make it inequitable to stand by while profits continued to be made
7. › Warman International Ltd v Dwyer (1995) 182 CLR 544
1. Appeal
2. › Procedural fairness
3. › Appeal by way of rehearing
4. › Whether denial of procedural fairness at first instance material where no different evidence would have been led and no retrial sought
5. › Supreme Court Act 1970 (NSW), s 75A

Quick Take

The rescission requirement established in P&O v Johnson does not apply to service contracts in accounts of profits for breach of fiduciary duty, and the 'standing by' defence requires only sufficient information (not full information) to engage the discretion to limit the account.