NOTE 38.  Add: Chirnside v Fay [2006] NZSC 68; Schipp v Cameron [1998] NSWSC 997; Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd [1988] 2 Qd. R. 1.

NOTE 39.  Add: Button v Phelps [2006] EWHC 53 (Ch) at [59]-[61]; Ross River Ltd v Cambridge City Football Club Ltd [2007] EWHC 2115 (Ch) at [197]; Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 at [2], (2006) 149 F.C.R. 569; and see Explora Group plc v Hesco Bastion Ltd [2005] EWCA Civ 646 at [51], citing this paragraph.  The New Zealand Supreme Court has recently suggested that joint ventures may be "inherently fiduciary" because of their similarity to partnership: Chirnside v Fay [2006] NZSC 68 at [14] & [74] (see also, apparently, Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, (2006) 231 A.L.R. 663 at [156] per Callinan J).  Given the lack of a clear definition of 'joint venture', this approach creates a risk that many commercial transactions would be treated as fiduciary relationships in circumstances where fiduciary duties would be unnecessary and inappropriate.  The problem stems from the fact that the term 'joint venture' is "a term which does not have a precise legal meaning": BBC Worldwide Ltd v Bee Load Ltd [2007] EWHC 134 (Comm) at [103].  It is not sensible to use an ill-defined concept as the trigger for the very strict fiduciary duties that arise where a fiduciary relationship is identified.  It will be preferable in England to maintain the traditional approach whereby joint ventures are not treated as a settled category of fiduciary relationship, but an individual joint venture may appropriately be treated as a fiduciary relationship if, "after a meticulous examination of its own facts" (Cook v Evatt (No 2) [1992] 1 N.Z.L.R. 676, 685; Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200 at [76]), the fiduciary expectation mentioned in paragraph [7-08] is found to be appropriate, bearing in mind the points made in paragraph [7-11] below regarding the appropriateness of that expectation between commercial actors.  This latter suggestion appears now to have been accepted by the New Zealand Supreme Court, which has accepted that joint ventures are not necessarily fiduciary (and, indeed, the label 'joint venture' can be unhelpful in this context) and that a close examination of the contractual matrix is necessary before fiduciary duties can be found: Paper Reclaim Ltd v Aotearoa Ltd [2007] NZSC 26 at [31]-[32]; Maruha Corp v Amaltal Corp Ltd [2007] NZSC 40 at [20]-[21].  "It is perfectly common for commercial entities to want to enter into cooperative arrangements for a specific purpose, involving a share of profits, but without intending to follow the route of mutual agency and the court should give effect to their intentions": BBC Worldwide Ltd v Bee Load Ltd [2007] EWHC 134 (Comm) at [107].  Where the intention is found to be to create some form of agency within a 'joint venture', there can nonetheless be fiduciary duties as to that part of the arrangement between the venturers, while the arrangement is not fiduciary in general: Maruha Corp v Amaltal Corp Ltd [2007] NZSC 40 at [21]-[22].

AT END OF PARAGRAPH.  Add: But financial advisers can occupy a fiduciary position vis-a-vis their clients: Daly v Sydney Stock Exchange Ltd (1986) 160 C.L.R. 371 at 377; Aequitas v AEFC [2001] NSWSC 14, (2001) 19 A.C.L.C. 1,006 at [307].