The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’

[2015] Conveyancer and Property Lawyer 210

14 Pages Posted: 9 Jan 2015 Last revised: 12 Aug 2015

See all articles by Ying Khai Liew

Ying Khai Liew

University of Melbourne - Melbourne Law School

Date Written: 2015

Abstract

Unlike ‘primary rights’ constructive trust doctrines, the CICT affords courts a wide discretion in determining the appropriate remedy in a particular case. This paper suggests that the CICT can take a step towards conceptual and analytical coherence if approached as a device for courts to award remedies that give effect to A’s secondary rights. When B breaches his primary duty to ensure A does not suffer harm from the unreliability of his induced assumptions, and when this causes A to suffer detrimental reliance, A obtains an unliquidated secondary right to be compensated for any harm, and a judge has discretion to determine the appropriate content of the remedy to compensate A for harm suffered. Since this approach is highly similar to proprietary estoppel, assimilating the CICT within proprietary estoppel can further benefit our understanding and practice of resolving disputes in the family homes context.

Keywords: common intention constructive trust, family homes, proprietary estoppel, primary/secondary rights

Suggested Citation

Liew, Ying Khai, The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’ (2015). [2015] Conveyancer and Property Lawyer 210, Available at SSRN: https://ssrn.com/abstract=2546509

Ying Khai Liew (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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