Warman International Ltd v Dwyer [1995] HCA 18

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. Warman International Ltd v Dwyer [1995] HCA 18

ORDER Appeal allowed. Set aside the orders of the Court of Appeal of Queensland other than those relating to costs. In lieu thereof, allow the appeal to that Court, set aside the orders made by the trial judge other than orders relating to costs, and order that the matter be remitted to enable accounts to be taken of the profits made by the businesses conducted by the second and third respondents in their first two years of operation. The respondents to pay the costs of the appellants in this Court.

Cur. adv vult.

The Court delivered the following written judgment:—

1995, Mar. 23 Mason C.J., Brennan, Deane, Dawson and Gaudron JJ.

This appeal raises the questions whether an account of profits should be awarded in favour of a successful plaintiff in an action for breach of fiduciary obligation and, if so, the basis upon which such an account should be taken in all the circumstances of the particular case.

The facts

The first respondent, Mr. Dwyer ("Dwyer"), was the general manager of the Queensland branch of the first appellant ("Warman"). Warman was a subsidiary of the second appellant ("Peko-Wallsend"). The learned trial judge (Derrington J.) found that Warman carried on its relevant business as "undisclosed agent" for its holding company, Peko-Wallsend. However, no point about that has been taken at any stage of the proceedings and the only significance which has been attached to the intrusion of Peko-Wallsend as an "undisclosed" principal has been that the relief granted in the courts below was in favour of Peko-Wallsend and not Warman. The case has been argued on that basis in this Court and, in the absence of any suggestion to the contrary, it is convenient to ignore the underlying interest of Peko-Wallsend except for the purposes of framing final orders.