Date: Mon, 26 Jun 2006 08:00:42 +1000

From: Charles Rickett

Subject: Loss of a chance for fiduciary breach

The appeal in Chirnside v Fay has already been heard by the Supreme Court of NZ. We await judgment.

Kind regards

Charles Rickett
Professor Charles Rickett
Sir Gerard Brennan Professor of Law
Dean, TC Beirne School of Law
The University of Queensland
St Lucia 4072
Queensland
AUSTRALIA

Professorial Fellow
The University of Melbourne

Tel: 61 7 3365 1021
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-----Original Message-----
From: Lionel Smith
Sent: Saturday, 24 June 2006 5:56 AM
Subject: ODG: Loss of a chance for fiduciary breach

Even before Barker, the NZCA calculated damages on the basis of loss of a chance for breach of fiduciary obligation: loss of a chance of sharing in a profitable partnership that never went ahead: Chirnside v Fay (No 2) [2005] 3 NZLR 689. (On nzlii the link to this case is broken, or at least bent, since it leads to a criminal law case. However it is on lexis.)

So much for specially strict rules about causation etc. in equity. This followed on from an earlier decision as to liability ([2004] 3 NZLR 637. There the Court said that if the parties could not agree on damages it would be done on a loss of chance basis, New Zealand being a system "where the distinction between law and equity has effectively lost its force" [66].

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