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Question: equity australian law question mick is well known in the...

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Equity Australian Law Question


Mick is well known in the music industry and has many contacts and friends amongst musicians. He was previously a musician himself and knows the music industry well.




As a result, he is often asked to source various musical acts by organisations in the entertainment industry.




One such organisation is Cacophony Ltd., which is a large advertising company, doing business worldwide. By a written contract between Cacophony and Mick - call it ‘the Contract’ -  Mick agreed to locate a well-known local act, ‘Insipid Purple’ (call it ‘Purple’) and to persuade Purple to supply the background music and to perform for a short advertisement that Cacophony was producing for their client, a well-known car manufacturer called Zoomer Vehicles Ltd. - ‘the Proposed Advertisement’.




Under the Contract Mick promised that he would not make any attempt to contact Zoomer Vehicles without the express knowledge or consent of Cacophony and that both parties would use their best endeavours, and would strive, to achieve the goal of procuring the engagement of Insipid Purple by Cacophony for the Proposed Advertisement. The Contract is one page long only. Upon successfully procuring the engagement of Insipid Purple by Cacophony, Mick would be entitled to a significant commission from Cacophony.




Mick knows the lead singer of Purple quite well and after a short chat, persuades him to sign up to do the Proposed Advertisement. Having performed his side of the bargain, he is paid a handsome fee by way of commission by Cacophony pursuant to the terms of the Contract.




Having done so, thereafter, he hears on the grapevine that Insipid Purple was not actually Zoomer’s first choice of performer for the purposes of the Proposed Advertisement. Zoomer only settled on the choice of Insipid Purple when its first choice, Featherweight Dirigible, a much better-known hard rock band, indicated they were unavailable.




Mick knows Featherweight Dirigible’s members well. He pays them a visit and over a few beers, persuades them that they should sign up to perform the Proposed Advertisement. This is all done behind Cacophony’s back. Having persuaded Featherweight Dirigible to perform, they drive to Zoomer’s office. Mick presents himself to Zoomer’s manager as Featherweight Dirigible’s agent and says he can get them to sign up to do the Proposed Advertisement. No one says anything of Insipid Purple.




Zoomer’s manager is delighted at the opportunity to sign up Featherweight Dirigible and after some haggling, Mick negotiates for himself a handsome commission which is promptly paid.




Cacophony is totally excluded from any involvement in the performance of the Proposed Advertisement and Insipid Purple is never engaged to perform.




Cacophony soon hears of Mick’s mendacity.




Now answer the following question, and discuss the legal reasoning and authorities to support your answer:




Leaving aside questions of breach of contract, has Mick breached any fiduciary obligation to Cacophony?




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