- Instructor: Rita Cheung
Date: 07 October 2023 (Saturday) Time: 9:30am-12:45pm Language: English Level: Elementary
Speaker: Dr. Rita Cheung, MCAL Solicitors LLP
Lawyer CPD / ACCA CPD / SFC CPT / Insurers’ CPD Pts: 3 Fee: HK$1,790
Highlight: This seminar discusses the landmark decision in Lehtimäki v Cooper [2020] UKSC 33 where the Supreme Court has dramatically tagged members of a charitable company as ‘fiduciaries’. The Supreme Court held that members of a charitable company owed fiduciary duties to the charity objects (as opposed to the charitable company), and that the court had an ‘inherent’ and ‘exceptional’ jurisdiction to direct Dr Lehtimäki, a ‘fiduciary’ member of the charitable company to vote in favour of a resolution. The decision has confirmed judicial commitment to control members of charitable companies just as it can control their trustees, and has prompted reflection on the quest to define who is a fiduciary.
- The duty of loyalty
- The no-conflict and no-profit rules
The ‘distinguishing’ obligation of a fiduciary is the duty of loyalty: Bristol & West Building Society v Mothew [1996] EWCA Civ 533. The duty of loyalty encompasses the no-conflict and no profit rules. The testing case: Poon Ka Man Jason v Cheng Wai To (2016) 19 HKCFAR 144, [2016] HKCFA 23
What is test to determine a conflict — the strict capacity test or the flexible capability test? Can a contract (shareholder unanimous consent) ‘modify’ fiduciary duties?
- The proper purposes rule
The testing case: Re Bank of East Asia Limited [2015] HKCFI 944. When can a minority member request for inspection of company document when directors exercised powers to entrench control in friendly hands? What constitute a ‘proper purpose’?
- Is a member of fiduciary?
- Remedies
The unqualified nature of the ‘no conflict’ rule is expressed not only in its wide scope, but also in the stringency of the remedy for the breach: the fiduciary is stripped of all ill-gotten gains. Must a fiduciary account for ‘all’ his profit? What is ‘equitable compensation? Proprietary remedies for breach of fiduciary duty.
- Inspection rights
Director inspection rights; Director inspection rights
