Constructive Trusts and Discretion in Australia: Taking Stock

(2021) 44(3) Melbourne University Law Review (advance)

38 Pages Posted: 14 Jan 2021 Last revised: 26 May 2021

See all articles by Ying Khai Liew

Ying Khai Liew

University of Melbourne - Melbourne Law School

Date Written: 2020

Abstract

In Australia, it is often thought that the decision whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This paper argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful further to distinguish between cases where judges take into account factors affecting justice inter partes, and those where judges also take third party considerations into account. The latter sort of discretion has, to date, only been exercised systemically in one factual scenario. This revelation provides reason to reflect on the status of certain High Court dicta, the relevance of the ‘institutional’/ ‘remedial’ constructive trust dichotomy, and the relationship between rights and remedies.

Keywords: constructive trusts; discretion; rights; remedies; institutional and remedial

JEL Classification: K1, K10, K11, K19

Suggested Citation

Liew, Ying Khai, Constructive Trusts and Discretion in Australia: Taking Stock (2020). (2021) 44(3) Melbourne University Law Review (advance), Available at SSRN: https://ssrn.com/abstract=3741176 or http://dx.doi.org/10.2139/ssrn.3741176

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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