Botanical Water Technologies IP Ltd v Driver

[2025] NSWCA 162

NSW Court of Appeal

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Interrogate

Catchwords

1. Equity
2. › Fiduciary duties
3. › Fiduciary relationships
4. › Director and shareholder
5. › Whether director owes fiduciary duty to shareholders in issuing shares
6. › Whether director/shareholder holds special position giving rise to duties to another shareholder
1. Equity
2. › Fiduciary duties
3. › Breach of fiduciary duty
4. › Procedural fairness
5. › Whether issue raised in pleadings
6. › Whether allegation raised at trial without objection
7. › Whether denial of procedural fairness
1. Equity
2. › Equitable remedies
3. › Equitable compensation
4. › Causation and loss
5. › Whether loss would not have been suffered but for breach of duty
6. › Whether speculation that capital raising would have proceeded identically save for breach
7. › Burden on party in breach to demonstrate consequences would have been the same
1. Equity
2. › Equitable remedies
3. › Equitable compensation
4. › Reflective loss
5. › Whether loss claimed was reflective of loss claimable by company
6. › Whether company had cause of action for same loss
7. › Application of rule in Foss v Harbottle

Quick Take

A director/shareholder who undertakes to act on behalf of other shareholders, has special knowledge about corporate transactions, and knows those shareholders are relying on them, owes fiduciary duties to those shareholders in relation to share issuances, even where the director also owes duties to the company. The burden falls on the fiduciary in breach to demonstrate that the impugned transactions would have proceeded identically absent the breach.