A fiduciary duty does not arise from a commercial relationship unless supported by clear evidence; an entire agreement clause precludes collateral contracts absent valid consideration.

[15] As reflected in its judgment, the Court of Appeal allowed the defendant's appeal on the following main grounds:

(a) the learned trial judge had gone beyond the pleaded case when he decided to lift the corporate veil to find that the defendant was bound by the Consultancy Agreements. There was no justification to lift the corporate veil;

(b) the learned trial judge had also gone beyond the pleaded case when he made a finding that the defendant was an accounting party on the basis that there was an alleged fiduciary relationship between the plaintiff and the defendant;

(c) the entire agreement clause appearing in the Consultancy Agreements precluded the existence of any collateral contract between the plaintiff and the defendant;

(d) the plaintiff's claim was a misconceived action for discovery of information and documents to enable it to institute proceedings against Standard, Alcatel CIT and Alcatel Italia under the Consultancy Agreements for consultancy fees.

Fiduciary Relationship

[16] The learned trial judge made a finding that based on the facts and the clauses in the Consultancy Agreements the defendant, Standard and Alcatel Italia belonged to one entity and as such there was an accounting duty on the part of the defendant to disclose the purchase orders on which the plaintiff's compensation was calculated. Hence the learned trial judge found that the fiduciary duty to account arises.

[17] The plaintiff's claim was brought on the basis of a common law duty to account. This required the parties to be in a fiduciary relationship. Learned counsel for the plaintiff contended that the Court of Appeal did not consider the possibility of there being a fiduciary relationship in common law that gave rise to an accounting relationship. In support of that learned counsel for the plaintiff referred to the following passage from the judgment of the Court of Appeal:

"...it is a strong principle of law that in the context of contractual relationship, unless specifically provided for in the terms of the contract, no fiduciary relationship is owed by one party to the other ..."

[18] It is pertinent to note that the observation by the Court of Appeal was based on a passage from the judgment of Mason J in Hospital Product Ltd v. United States Surgical Corp & Ors [1984] CLR 41 at p 97 of the report which reads as follows:

"That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction."

[19] Learned counsel for the plaintiff submitted that the Court of Appeal ought to apply a more flexible approach as the learned trial judge had done to ascertain whether there existed a fiduciary relationship between the plaintiff and the defendant in the instant case.

[20] We will deal with the issue of duty to account under the common law first. On the action for taking of accounts the Court of Appeal, after considering several authorities on the subject, made the following observation:

"31. From the above authorities, for there to exist a complete cause of action for taking of accounts, the respondent has to plead and prove the following:

(a) the appellant (