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January 2008
Business Structures in 2007: An eventful year in review — issues for you and your clients to consider
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 Lawyer in Profile  Julian SmithSenior Associate Phone: 03 9288 0555 Julian's areas of practice include:
He has experience in drafting various types of commercial agreements, trust deeds and corporate governance documents. He also advises extensively on companies law, financial services (and licensing) and superannuation matters. Julian is studying his Masters of Law at Melbourne University and recently addressed an ICAA conference on "SMSFs: The Virtue of A Good Deed".  
Two cases during 2007 aptly illustrated the need for joint venturers to carefully document their relationship — in particular, whether fiduciary duties apply between the parties as they would in a partnership.
The Cleardocs Team at Maddocks
In Farah v Say-Dee, the High Court appeared to assume that fiduciary duties applied to the relationship — despite the parties having agreed that it was a joint venture. In ASIC v Citigroup, the Victorian Supreme Court confirmed that parties can expressly 'contract out' of fiduciary duties — including in documents such as joint venture agreements. These cases remind practitioners that they cannot rely on the assumption that fiduciary duties do not apply to joint venturers — even so, express contractual terms can address the issues adequately. For a more detailed summary of the cases and the differences between partnerships and joint ventures, see our full article here.
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