NOTE 31. Add: Lindsley v Woodfull [2004] EWCA Civ 720; [2004] 2 B.C.L.C. 131 at [6] & [8]; Re Macadam [1946] Ch. 73, 82-83; Cook v Collingridge (1823) Jac. 607, 623; Brown v de Tastet (1821) Jac. 284, 294, 298 & 299.  Indeed, such allowances can even be appropriate where a constructive trust is awarded: Fraser Edmiston Pty Ltd v AGT (Qld) Pty Ltd [1988] 2 Qd. R. 1, 12.

NOTE 33.  Add: Contrary to what Campbell J said in Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844 at [273], It is not the case that such allowances are "ordinarily made".

NOTE 35. Add: See, e.g., Say-Dee Pty Ltd v Farah Constructions Pty Ltd [2005] NSWCA 309 at [252], where an allowance was given, despite "a not insignificant degree of surreptitious conduct and bad faith" on the part of the fiduciary, but the court made clear that "any such allowance should not be liberal".  Similarly, in Murad v Al-Saraj [2005] EWCA Civ 959 an allowance was made (see at [88]) despite the deceitful conduct of the fiduciary.

NOTE 36.  Add: This paragraph was quoted in Imageview Management Ltd v Jack [2009] EWCA Civ 63 at [56].

ADD AT END OF PARAGRAPH: This is not to say that the fiduciary's liability to account is based on the concept of unjust enrichment; rather, the remedy of an account is a conventional remedy for a breach of fiduciary duty but one which must not be allowed to become a vehicle for the unjust enrichment of the claimant: Warman International Ltd v Dwyer (1995) 182 CLR 544 at 561; Murad v Al-Saraj [2005] EWCA Civ 959 at [64]. 

ADD AT END OF PARAGRAPH: Although an account of profits is an equitable remedy, and so subject to the court's discretion, the fiduciary's principal is entitled to an account of profits made in breach of fiduciary duty virtually as of right: Warman International Ltd. v Dwyer (1995) 182 C.L.R. 544, 560.  McLachlin C.J. has recently suggested, obiter, that this perhaps ought not to be the case: Strother v 3464920 Canada Inc [2007] SCC 24 at [152]-[158].  Her analysis ignores relevant authority, relies on irrelevant material, and is entirely misguided.  She ignores the High Court of Australia's decision in Warman v Dwyer, which dealt with the very point at issue.  She quotes from, and relies on, David Hayton's suggestions as to whether a proprietary remedy ought to be available in such circumstances (as opposed to a merely personal remedy), which is irrelevant to the question whether the orthodox profit-stripping remedy of an account should be unavailable where no loss has been caused.  Her suggestion is akin to the defendant's argument in Murad v Al-Saraj [2005] EWCA Civ 959 that liability to account for profits made in breach of fiduciary duty ought to be limited to the loss that the claimant has suffered, which was rightly rejected by the English Court of Appeal (see the discussion in [2006] C.L.J. 278).  English law has rejected that argument for hundreds of years, and it ought to continue to do so, in spite of McLachlin C.J.'s analysis.