An account of profits (sometimes referred to as an accounting for profits or simply an accounting) is a type of equitable remedy most commonly used in cases of breach of fiduciary duty.[1] It is an action taken against a defendant to recover the profits taken as a result of the breach of duty, in order to prevent unjust enrichment.
In conducting an account of profits, the plaintiff is treated as if they were conducting the business of the defendant, and made those profits which were attributable to the defendant's wrongful actions. This can be rather complex in practice, because the defendant's accounting records must be examined (sometimes by a forensic accountant) to determine what portion of his gross profits were derived to the wrongful act in question.[2] As a result, mathematical exactness is not called for and reasonable approximation is acceptable.[3]
Historically an account was not an equitable remedy, but was an action at common law, and is therefore technically an instrument of law, though it arose at a time before the distinction between law and equity was marked.[4]
Co-owners in concurrent estates also have the right to an accounting of profits, in order to properly apportion income from the use or leasing of the property. The remedy is also available against strangers to a trust who "dishonestly assist" an express trustee in a breach of the trustee's fiduciary duty.[5]
Case law has shown roughly two approaches to assessing the extent of an account of profits:[6]
To account not of the entire business but of the particular benefits which flowed to him in breach of his duty;
To account for the entire business and its profits, due allowance being made for the time, energy, skill and financial contribution of the fiduciary (the approach in Boardman v Phipps).
^Leigh Ellis (6 December 2006). "Theory into Action: Calculating Damages Payments and Accounts of Profits in Patent Cases". Gillhams Solicitors.
^Warman International Limited v Dwyer [1995] HCA 18 at [25], (1995) 182 CLR 544, High Court (Australia).
^National Trust Co. v. H & R Block Canada Inc., 2003 SCC 66, [2003] 3 SCR 160 (14 November 2003)
^Robert Hunter; Tom Wood (17 July 2014). "Court of Appeal confirms account of profits available as remedy for dishonest assistance". Herbert Smith Freehills., discussing Novoship (UK) Limited & Ors v Nikitin & Ors [2014] EWCA Civ 908 (4 July 2014)
^Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 at [101], (1984) 156 CLR 41 (25 October 1984), High Court (Australia).
Further readingedit
HS222 How to calculate your taxable profits (2019)
Finanzbuchhalter (in German)
Account of profits ALRC
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account, profits, account, profits, sometimes, referred, accounting, profits, simply, accounting, type, equitable, remedy, most, commonly, used, cases, breach, fiduciary, duty, action, taken, against, defendant, recover, profits, taken, result, breach, duty, o. An account of profits sometimes referred to as an accounting for profits or simply an accounting is a type of equitable remedy most commonly used in cases of breach of fiduciary duty 1 It is an action taken against a defendant to recover the profits taken as a result of the breach of duty in order to prevent unjust enrichment In conducting an account of profits the plaintiff is treated as if they were conducting the business of the defendant and made those profits which were attributable to the defendant s wrongful actions This can be rather complex in practice because the defendant s accounting records must be examined sometimes by a forensic accountant to determine what portion of his gross profits were derived to the wrongful act in question 2 As a result mathematical exactness is not called for and reasonable approximation is acceptable 3 Historically an account was not an equitable remedy but was an action at common law and is therefore technically an instrument of law though it arose at a time before the distinction between law and equity was marked 4 Co owners in concurrent estates also have the right to an accounting of profits in order to properly apportion income from the use or leasing of the property The remedy is also available against strangers to a trust who dishonestly assist an express trustee in a breach of the trustee s fiduciary duty 5 Case law has shown roughly two approaches to assessing the extent of an account of profits 6 To account not of the entire business but of the particular benefits which flowed to him in breach of his duty To account for the entire business and its profits due allowance being made for the time energy skill and financial contribution of the fiduciary the approach in Boardman v Phipps See also editTracing law Constructive trustReferences edit Garner Bryan A ed 1999 Black s Law Dictionary 7th ed West Group ISBN 0 314 22864 0 Leigh Ellis 6 December 2006 Theory into Action Calculating Damages Payments and Accounts of Profits in Patent Cases Gillhams Solicitors Warman International Limited v Dwyer 1995 HCA 18 at 25 1995 182 CLR 544 High Court Australia National Trust Co v H amp R Block Canada Inc 2003 SCC 66 2003 3 SCR 160 14 November 2003 Robert Hunter Tom Wood 17 July 2014 Court of Appeal confirms account of profits available as remedy for dishonest assistance Herbert Smith Freehills discussing Novoship UK Limited amp Ors v Nikitin amp Ors 2014 EWCA Civ 908 4 July 2014 Hospital Products Ltd v United States Surgical Corporation 1984 HCA 64 at 101 1984 156 CLR 41 25 October 1984 High Court Australia Further reading editHS222 How to calculate your taxable profits 2019 Finanzbuchhalter in German Account of profits ALRC nbsp This legal term article is a stub You can help Wikipedia by expanding it vte Retrieved from https en wikipedia org w index php title Account of profits amp oldid 1139071266, wikipedia, wiki, book, books, library,
