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THE CATEGORIES OF EQUITABLE WRONGDOING

Although a wide variety of equitable wrongdoing can be identified, there are three key categories of such wrongs which can trigger gain-based remedies:[1] breach of fiduciary duty, breach of confidence, and accessorial liability. Rather than concentrating on the nature of the equitable wrongs themselves, the analysis which follows will seek to determine when gain-based remedies will be awarded for such wrongdoing and the type of gain-based remedies which are awarded.

(A) BREACH OF FIDUCIARY DUTY

Where the defendant is in a fiduciary relationship with the principal he or she is in a position to exploit the principal and so, by virtue of the policy of protecting such relationships against abuse, gain-based remedies are available where the defendant has breached his or her fiduciary duty. Before examining the types of duty that fiduciaries owe to their principals, it is first necessary to examine when a fiduciary relationship can be

identified.[2]

  • [1] See D Davies, ‘Restitution and Equitable Wrongs: An Australian Analogue’ in F Rose (ed), Consensus adIdem—Essays in the Law of Contract in Honour ofGuenter Treitel (London: Sweet and Maxwell, 1996), 163.
  • [2] D Hayton, ‘Fiduciaries in Context: An Overview’ in PBH Birks (eds), Privacy and Loyalty (Oxford:Clarendon Press, 1997), 292.
 
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