ABSTRACT
The strict obligations governing the conduct of fiduciaries is intended to discourage temptation and encourage fidelity. These objectives potentially lose their force if the remedy has a different emphasis. An account of profits serves a crucial function in disgorging illicit gains. The determination of accountable gains and the amount that must ultimately be disgorged is a phased exercise which does not necessarily reflect the rigour of the duty it enforces. The implications are explored with reference to causation and allowances. The former is consistent with strict fiduciary standards to the extent that unauthorised gains are readily imputed to the breach. The latter is a nuanced exercise in which the relationship between duty and remedy is more tenuous. It is concluded that this is not necessarily inconsistent with the objectives of equity and that each can be explained on a principled basis.
Devonshire, Peter, Account of Profits: An Exemplar of Fiduciary Doctrine? (December 1, 2023), The University of Auckland Faculty of Law Research Paper Series 2023; (2023) 30 New Zealand Universities Law Review 549.
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