Question: equity australian law question zena is a successful real estate...
Equity Australian Law Question
Zena is a successful real estate agent, employed by Swanky Real Estate Co. It can be assumed she owes fiduciary duties to Swanky not to compete with it and that she owed the duties of the utmost loyalty to Swanky.
Her hours of work are 9 – 4 Monday to Thursday. For her work she is given the use of a car. Swanky’s clientele for the most part buy and sell commercial properties in the northern suburbs of Western Australia.
Swanky’s two directors are Richard and Peter. Their real estate licence is restricted to their buying and selling real estate in Western Australia only.
Zena, with a view to ‘broadening her horizons’, earns a real estate licence to buy and sell real estate in New South Wales. She sits various exams to qualify to do so. This is hard work, taking in excess of a year. Zena had to make frequent visits to New South Wales to conduct personal appraisals of various properties as part of her studies, this taking place prior to COVID. Only a licensee with a New South Wales licence is entitled to earn a commission from doing business as a real estate agent in that state.
Richard and Peter are not well liked by many of their clients. Zena on the other hand is personally very popular and, due to her hard work and personable nature, does very well.
Zena, whilst still employed by Swanky, is approached by Swanky’s clients to source a property ‘off her own bat’ which she understands to mean that she was to do it without Swanky’s knowledge and without reference to Swanky. She is careful to do so outside her working hours using her own transport. She is successful and earns a significant commission.
Her reputation with Swanky’s clients grows. She is successful on occasion in sourcing properties in New South Wales where she is licensed to practise. These client would all have declined to engage Swanky in any event, as they ‘can't stand Richard and Peter’. Her clientele is not limited to Swanky’s clients, they include people off the street who have been recommended to Zena by word of mouth.
Zena is careful to ensure that all her work is done outside office hours and using her own transport.
Swanky discover what Zena has been up to. They promptly institute proceedings against her, claiming equitable relief on the grounds that she is in breach of her fiduciary duties owed to Swanky.
Zena denies all allegations of breach of fiduciary duty. If she is in breach, which she denies, then she argues that Swanky has suffered no damage, and that in any event she is entitled to a just allowance to compensate her for her time and effort.
Now answer the following question, and discuss the legal reasoning and authorities to support your answer:
Discuss Swanky’s entitlement to an account of profits and/or equitable compensation.