(i) In the context of corporate law, discuss the following statement and explain the fiduciary concept in detail:

“Since the decision of the High Court in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64, it has been accepted in this country that a fiduciary duty arises out of an undertaking, express or implied, by the person incurring such duty.”[1]

(ii) Discuss examples that demonstrate this fiduciary concept in each of the following areas, referring to case law and statute as necessary:

• The general law (as it relates to the formation of a company);
• A Partnership Act (in an Australian State or Territory); AND
• The Corporations Act 2001 (Cth).

Total (50 marks)

Please note the material on pages 8 – 11 of the Unit Information Guide regarding the Assessment.

Marking criteria

Important information:

Consider the following information carefully before starting the assignment.

The assignment will be marked according to the following criteria.

Research (40%)

This assignment requires a comprehensive review of the primary law sources (legislation, case law) as well as a review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memoranda, Law Reform Commission reports). The research should clearly identify the relevant issues and legal principles and support the analysis.  In doing so, the work of others should be correctly referenced and appropriately acknowledged.

Analysis (50%)

The information gathered should be analysed to evaluate the relevant legal principles. The argument should be developed logically through clear analysis and application of the relevant legal principles to resolve the issue(s). This analysis should also:

• integrate and evaluate relevant knowledge from the material covered in this unit
• develop and sustain a concise and convincing legal argument through to a logical conclusion, and
• importantly, answer the specific question asked.

Technical aspects (10%)

The paper should:

• correctly reference and acknowledge sources. Please note the reference system adopted in this assignment can be either the AGLC 3 (Australian Guide to Legal Citation 3rd ed) or the Harvard referencing system. The referencing system adopted must be used correctly and consistently;
• use fluent, clear, concise writing that contains clear expression, correct grammar, syntax, sentence structure and spelling; and
• use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section.

[1] Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141 [33] (Dowsett J).