Muschinski v Dodds and the Joint Endeavour Principle: The Ephemeral Distinction Between Institutional and Remedial

Abstract

The 1985 High Court case of Muschinski v Dodds provided relief by way of a constructive trust when a joint endeavour broke down without attributable blame in circumstances not contemplated by the parties. This has spurred extensive literature on remedial constructive trusts. Unfortunately, there has been a dearth of literature on the relevance of institutional constructive trusts in joint endeavours. In the 2005 Supreme Court of New South Wales case of Henderson v Miles [No 2], these same principles provided relief for a failed joint endeavour, but constructive trusts were not mentioned — yet the case is cited as an example of constructive trusts arising from windfalls. This article discusses the relevance of constructive trusts in joint endeavours and, through a case analysis, shows that the distinction between remedial and institutional constructive trusts is ephemeral: constructive trusts arise by operation of law in joint endeavours. They are no mere ‘remedial’ response.

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