AN ESSAY I SUBMITTED ON THE AUSTRALIAN 'REMEDIAL' CONSTRUCTIVE TRUST

INTRODUCTION

The remedial ‘new style’ constructive trust has developed into a potent remedy, protecting beneficial interests in property against both the legal owner and subsequent third-parties[1]. It is essential, therefore, to explain how and why the ‘new style’ trust overtook its ‘old style’ parent, the common intention constructive trust by creating new proprietary rights[2]. Thus, the divergent course of English and Australian authority highlights the unruly distinction between in rem and in personam jurisdiction[3]. This is evident in the outcome of an Australian court’s imposition of a remedial constructive trust at the date of judgment and has implications for the relationship between law, equity and property[4].  

Whereas the basis of the common intention constructive trust is the construction of pre-existing proprietary rights, the remedial constructive trust effectively creates new proprietary rights by privileging Equity’s foundation in personam on the notion of unconscionability over valid legal title-rights in rem[5]. On the one hand, this relieves parties with an equivocal claim to beneficial ownership from the detriment occasioned by the trustee’s unconscionable denial of a legal or beneficial interest to that party[6]. On the other hand, the remedial constructive trust severely undermines the basis of the common intention constructive trust in ‘construing’ a pre-existing beneficial interest in the legal estate with the aim of doing practical justice.

The example of bankruptcy illustrates this particular criticism of Australian courts’ reasoning[7]. Whenever the remedial constructive trust operates as a free-flowing equitable remedy, it may result in the imposition of proprietary consequences, thereby depriving legal in personam right-holders of access to a debtor’s assets[8]. The court’s imposition of a hybrid in rem-in personam ‘proprietary’ right pursuant to a remedial constructive trust serves to destabilise the ordinary legal in personam debtor-creditor relationship and thus the fluid interaction between law and equity[9].

In Part I, this paper briefly considers the dynamic interaction between rights in rem-in personam. In so doing, it shows that the distinction has consequences for the interaction between legal proprietary rights and equitable proprietary rights. In Part II, the paper raises the doctrine of the constructive trust, comparing the ‘old style’ common intention constructive trust with the ‘new style’ remedial constructive trust. The paper refracts the unruly basis of the remedial constructive trust through contradictory authority in England and Australia[10].  Part III cites the example of the bankrupt and the manner in which a remedial constructive trust frustrates unsecured creditors by depleting debtors’ assets otherwise available in administration[11]. In conclusion, the author suggests that lawyers distinguish the jurisprudential basis of legal and equitable property rights through equity’s remedial origins, so as to protect the rights of third-party creditors and to avoid doing ad hoc justice.     

RIGHTS IN REM VERSUS RIGHTS IN PERSONAM: THE ORIGINS OF AN UNRULY OR AN UNHOLY DISTINCTION?

‘Nothing’, said Blackstone, ‘so strikes the imagination as property’[12]. Nevertheless, it is challenging to define what constitutes a right in rem as opposed to an in personam right or remedy[13]. Essentially, a property right is a legal power or bundle of rights permissibly exercised over a thing or land[14]. It is enforceable against the world at large, including successors in title to the registered or legal proprietor and possibly the registered proprietor themselves[15]. Generally, it is assignable[16]. Simultaneously, a person can have property in intangibles such as an incorporeal heriditament including easements or profits-ả-prendre[17]. One may also have an option to purchase, an equitable proprietary right[18]. On the contrary, a personal right is available against persons to enforce an obligation, either in contract, tort or equity[19]. Consequently, the majority of rights are personal[20]. At common law, an interference with the claimant’s proprietary rights entitles a plaintiff only to damages[21]. In equity, however, a much broader range of remedies are available to protect a plaintiff from the unconscientious exercise of rights in rem[22]. This has led to some very contradictory analyses in respect to the doctrine of constructive trust, especially involving the new style remedial constructive trust[23].

In Wiley v St George Partnership Banking – a case concerning a floating charge over assets – Finkelstein J addressed the unruly interplay between proprietary and personal right[24]. Considering various rationales for its origins, his Honour held that modern courts ought to adopt a broader perspective on the meaning of property[25]. As a result, the distinction between rights in rem and in personam and legal and equitable property is necessarily contextualised[26]. His Honour thought it appropriate to refer to equitable obligations attaching to property as creating, not necessarily construing, proprietary rights[27]. Although it is generally reasonable to speak of equitable rights ‘in rem’, his Honour elaborated that the precise distinction between rights in rem and in personam frequently depends upon the proprietary remedy being sought. In sum, Wily established that the distinction between rights in rem and in personam and law and equity is necessarily dynamic, though need not be confused[28].  

THE CONSTRUCTIVE TRUST: CONSTRUING THE CONTROVERSY

Subsequently, the constructive trust developed as a remedy to protect equitable property rights in a number of tightly circumscribed situations[29]. Inter alia, constructive trusts will be impressed upon property acquired in breach of fiduciary obligation or breach of trust[30]; property acquired through fraud or undue influence[31]; to disgorge a sum received by a mortgagee in excess of a debt[32]; to enforce mutual wills[33]; to act equivalent to a vendor’s lien over the purchase price, though the logical basis may be affected by a sub-modo constructive trust where there is part performance of payment of purchase monies[34]; to secure a  beneficial interest subject to a third party’s right to repurchase[35].

Although constructive trusts require a trustee and a cestui que trust, Australian courts hold that a remedial constructive trust need not necessarily attach to any clearly identifiable pre-existing right in rem or existing trust property[36]. In this way, the doctrine of constructive trust is distinguishable from the concept of a ‘bare trustee’ under an express trust and imperfectly resembles the resulting trust[37].

The problem, it is submitted, arises from judicial attempts to fashion ad hoc justice and proprietary relief under equity’s auspices[38]. Lord Denning MR claimed a broader remedial purpose for the ‘new model’ or ‘new style’ constructive trust[39]. In Eves v Eves, the Master of the Rolls controversially asserted that ‘Equity is not past the age of child bearing. One of her latest progeny is a constructive trust of a new model’[40]. With respect to his Lordship, it is extremely doubtful whether the remedial constructive trust, acting as an analogue of the right in rem, can function as a legal remedy and ‘property-creating event’ through arbitrary notions of propriety or justice[41]. Rather, this goes to the heart of the remedial constructive trust operating both as legal right and equitable remedy. However, the new style constructive trust is currently law in Australia[42].     

EQUITABLE PROPERTY AS AN ‘INSTITUTION’: DOING THINGS ‘OLD STYLE’ – THE COMMON INTENTION CONSTRUCTIVE TRUST

Framing the unruly interplay between law and equity, it is instructive to examine English authority regarding constructive trusts. The English Courts clearly identified the basis of the equitable doctrine of constructive trust in securing a pre-existing beneficial right to property[43]. In leading decisions, Gissing v Gissing and Pettitt v Pettitt, the English Courts sought to avoid dispensing ‘palm tree’ justice by insisting upon enforcing existing proprietary rights[44]. As a result, the English Courts adopt a more straitened approach than the High Court of Australia in impressing legal title to land with a constructive trust. As indicated by Coldrey J in Rasmussen v Rasmussen, the old style constructive trust is exclusively founded on the common intention of the parties – manifested in words or action – to confer beneficial title to land where the plaintiff has relied upon that common intention to their detriment[45]. By contrast, the High Court emphasises the origin of the remedial constructive trust as an equitable, in personam remedy to proscribe unconscionable denial of a plaintiff’s entitlement to a beneficial interest or estate[46].

A NEW DEPARTURE: THE ‘NEW STYLE’ REMEDIAL/UNCONSCIONABILITY CONSTRUCTIVE TRUST

In Muschinski v Dodds, the High Court adverted to the necessary interaction between rights in rem and in personam in regard to the imposition by the Court of a remedial constructive trust[47]. The plaintiff, a divorcee, had been living in a long-term relationship with the defendant whenever he purchased a property in Picton. She contributed the whole of the purchase price toward Picton. The plaintiff and defendant had agreed to repair the cottage at Picton with the intention of constructing a prefabricated house on the land in which to reside. After renovation, the cottage was to be used for the purpose of the plaintiff establishing an arts and crafts business. The appellant was registered on the title.

Gibbs CJ signified the unruly interaction between legal rights in rem and equitable remedies with respect to title[48]. Although the learned Chief Justice was prepared to countenance the plaintiff/appellant as the ‘real purchaser’ of Picton, the appellant, by speaking of getting the defendant’s ‘name on the title’, did not intend to deny him any beneficial interest as opposed to a legal interest in Picton[49]. Nevertheless, Gibbs CJ acknowledged that a layperson’s understanding of the distinction between a legal interest and a beneficial interest is naturally limited and not determinative of a common intention[50].

Deane J was disposed to impose a constructive trust from the date of judgment: as evidenced by Deane J’s reasons, however, the remedial constructive trust operates rather amorphously, producing ambiguous outcomes[51]. Deane J emphasised that the constructive trust is sui generis among trusts, creating a specific ‘proprietary’ right neither wholly enforceable in rem nor in personam[52]. His Honour held that the remedial constructive trust is both ‘institutional’ and ‘remedial’ in character[53]. Although not strictly indeterminate or ‘idiosyncratic’, the remedial constructive trust is capable of creating proprietary rights through attaching equitable obligations to property[54]. As a proprietary right, the remedial constructive trust can avail to prevent the legal owner from denying a beneficial interest to the plaintiff in a valid legal title. At the same time, an Australian court cannot effect ad hoc justice consonant with mere propriety or ‘good conscience’[55].

TO ‘CONSTRUCT OR TO CONSTRUE’, THAT IS THE QUESTION

In Giumelli v Giumelli, however, the High Court was eager to assert that the basis of the remedial constructive trust is not to construct, but ‘to construe’[56]. Though distinguishable from the concept of a ‘bare trustee’ under an express trust and imperfectly resembles the resulting trust, it cannot be imposed to create new property rights[57]. In Giumelli, therefore, their Honours refused to impose the constructive trust as the appropriate or ‘mimimum’ equity to do justice[58].

It is therefore difficult to disentangle whether the constructive trust is available on the basis of a pre-existing proprietary right, as an equitable remedy at the discretion of the Court, or both. Hence, imposition of the remedial constructive trust is beset by a vicious circle between rights in rem-in personam and law and equity. In precluding the unconscionable denial of an entitlement to land, the Court arguably creates new proprietary rights without reference to a pre-existing beneficial interest[59]. Not readily explicable in principle, the remedial constructive trust crucially creates a proprietary right enforceable against the world at large, including third parties[60].  Moreover, a constructive trust need not be evidenced in writing[61]. Unsurprisingly, Halsbury’s Laws of England states that ‘The expression ‘constructive trust’ does not describe a concept of fixed meaning’, turning on whether courts will treat a party as ‘having (or as having had)’ a beneficial interest in land or personalty[62].

‘IMPOSING’ A REMEDIAL CONSTRUCTIVE TRUST: EQUITY FILLING THE ‘FORMLESS’ VOID?

Furthermore, post-Muschinski cases show that Australian Courts are unclear about how or why they are ‘imposing’ the new style unconscionability constructive trust. The Courts’ reasoning is bedeviled by the familiar circularity between rights in rem-in personam, the basis of the trust remedy remaining unexplained. Baumgartner v Baumgartner, Allen v Snyder, Hohol v Hohol, Parij v Parij and Rasmussen v Rasmussen readily identified the doctrine itself as protecting de facto, married couples or close relatives who have engaged in ‘joint endeavours’ or the ‘pooling’ of resources to improve property, the ‘substratum’ of the relationship having broken down without attributable blame[63].

Given that it is imposed remedially by order of the Court in spite of   the parties’ actual intentions, there is a grave risk that the remedial constructive trust may do injustice. Indeed, the remedial constructive trust may serve to push a dubious or equivocal agreement  “over the line”, thereby securing a beneficial interest in the guise of restitution for an unjust enrichment[64]. Through imposition in a court of equity, the remedial trust acts ‘akin to an order for conveyance’ in spite of the fact of legal or equitable ownership, registration and occupation[65]. The basis of unconscionability, nevertheless, seems to be unexpressed or retrospectively authorised[66].

 “MUST I CHOOSE”?! THE REMEDIAL CONSTRUCTIVE TRUST AS BOTH ‘RIGHT’ AND ‘REMEDY’ AND THE INSTRUCTIVE EXAMPLE OF THE BANKRUPT

In a cautionary judgment, Gummow J in Stephenson Nominees Pty Ltd v Official Receiver raised the critical example of bankruptcy, following imposition of a remedial constructive trust[67]. The example is illustrative, David M Paciocco asserts whenever ‘a constructive trustee is insolvent, a declaration of a constructive trust turns the unpaid general creditors of the constructive trustee into the real losers’[68]. In Stephenson, the appellant sought to trace and reduce the some of the bankrupt’s assets through a remedial constructive trust.

In judgment, Gummow J shed light upon the legal distinction between the ‘proprietary character’ of a constructive trust and the basis of equitable remedies in personam. His Honour rejected any general remedial principle of restitution for unjust enrichment under Australian law[69]. Although his Honour supported the proposition that a constructive trust could arise solely upon the basis of unconscionability, it is submitted that the real purport of his Honour’s judgment was to deny any notion of unconscionability in “thin air” to defeat the legal in personam claims of unsecured creditors[70].

Contrary to Deane J in Muschinski, his Honour refused to grant the remedy of a constructive trust because it would have been inappropriate to defeat third-parties who were unsecured creditors[71]. It is submitted that his Honour was careful to avoid the imposition of a constructive trust, since the order would have effectively created a proprietary right, thereby defeating valid in personam claims. A fortiori, his Honour reached this decision in spite of his broad reading of the discretionary  basis of a constructive trust. Importantly, his Honour’s reasons clarified the necessity of continued tension between law and equity and legal and equitable property in a system not absolutely merged to produce just results[72]. 

SQUARING LAW AND EQUITY: THE DISCRETIONARY NATURE OF ‘PROPRIETARY’ OUTCOMES THROUGH THE REMEDIAL CONSTRUCTIVE TRUST

In synthesis, it is necessary to place the constructive trust in its equitable context. In the process, lawyers will achieve a balanced vision of the interaction between equitable estates and interests in relation to their common law counterparts[73]. Given the complex interaction between proprietary rights and equitable property rights, this has ongoing significance for discerning the basis as well as individual outcomes of a remedial constructive trust[74]. In truth, however, only legal proprietary rights manifest the exercise of a ‘pure’, in rem power over chattels or land[75]. Equity, nevertheless, may intervene in personam to relieve a defendant’s conscience through the enforcement of pre-existing equitable property rights.

The problem of bankruptcy demonstrates, therefore, that Australian courts may have drastically extended the notion of unconscionability to defeat unsecured creditors. It is noteworthy, therefore, that English judges have insistently rejected the ‘new model’ remedial trust as adopted in Australia[76]. In Re Polly Peck (No 2), Nourse LJ criticised the remedial constructive trust ‘an order of the court granting, by way of remedy, a proprietary right to someone who, beforehand, had no proprietary right’[77]. While the tentative merger of common law and equity in one Supreme Court of Judicature has established that equity may act in personam to create equitable property rights, the basis of this jurisdiction is often unexplained or unclear [78]. [79] To avoid inherent circularity, it is necessary to acknowledge the crucial differences between the “behaviour” of equitable and legal proprietary rights in respect to imposition of a remedial constructive trust. This will produce more consistent, just decisions[80].

CONCLUSION

Although the doctrine of the remedial constructive trust purports to protect beneficial interests in property, it is unclear that a remedial constructive trust need necessarily attach to any pre-existing right in rem such as the common intention constructive trust. English authority indicates that it is often difficult to elucidate the basis of the remedial constructive trust in any proprietary right at all, though, as an equitable device, the remedial constructive trust may operate to divest a legal owner of their title[81].

According to the High Court, the remedial constructive trust may confer proprietary rights, binding third-parties through the broad notion of unconscionability. Indeed, it may be impossible to enforce precisely broad notions of unconscionabilty without reference to the parties’ common intention to confer a beneficial interest or equitable right in rem. This emerges from the uncertain reasons in Giumelli and Muschinski.    

Upsetting the ordinary legal separation between rights in rem and in personam, therefore, the theoretical fuzziness or indistinction underlying the remedial constructive trust may have serious practical consequences[82]. Later Australian authority indicates that unsecured creditors may unfairly be deprived of access to a defendant-creditor’s assets during administration whenever a remedial constructive trust serves to create a beneficial interest in property at the date of judgment.

Due to the hybrid nature of equitable property rights, Australian judges ought to recognise the ultimate remedial, in personam origins of equitable property rights. Since equitable property rights are ultimately ‘sourced’ in personal obligation and conscience, they are not available as of right to defeat legal rights in rem or in personam. In order to make the dynamic between law and equity more benign, the Australian courts ought to reconsider their departure from the ‘old style’ constructive trust and seek a contextual balance between rights in rem and in personam.

This is evident in the case of bankruptcy. As Gummow J held in Stephenson Nominees, imposition of a remedial constructive trust ought not to effect a transfer of bare legal title or create a beneficial interest in property where the equitable device would prejudice third-parties with valid in personam claims against a legal proprietor for debt. While the interrelation between law and equity is fluid, lawyers – for the sake of laypersons - must continue to separate their law from their equity.   

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---

[1] Muschinski v Dodds (1985) 160 CLR 583.

[2] Rasmussen v Rasmussen [1995] 1 VR 613, Coldrey J. 

[3] Gissing v Gissing [1971] AC 886, Lord Diplock, Viscount Dilhorne; Pettitt v Pettitt [1970] AC 777; See further, Burns v Burns [1984] 1 All ER 244, [1984] Ch 317; Grant v Edwards [1986] 2 All ER 426; Chapman v Chapman [1954] AC 429, Lord Simonds LC.

[4]

[5] Maitland

[6] Allen v Snyder [1977] 2 NSWLR 685 at 690-1, Glass JA, at 698, Samuels JA; Hohol v Hohol (1980) 6 Fam LR 49, O’Bryan J; Parij v Parij 20 Equity [1997] SASC 6463, Cox, Millhouse and Debell JJ.

[7] Stephenson Nominees Pty Ltd v Official Receiver (1987) 76 ALR 485, Gummow J.

[8] (1987) 76 ALR 485.

[9] G E Dal Pont, ‘Timing, insolvency and the constructive trust’ (2004) 24 Australian Bar Review 262; D M Paciocco, ‘The Remedial Constructive Trust: A Principled Basis for Priorities Over Creditors’ (1989) 68 Can Bar Rev 315.

[10] Giumelli v Giumelli (1999) 196 CLR 101, Gleeson CJ, McHugh, Gummow and Callinan JJ; Baumgartner v Baumgartner (1987) 164 CLR 137, Toohey J; El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 at 733-734, Millett J; Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1989] 3 All ER 14 at 57, [1990] 1 QB 391 at 479; Westdeutsche Landesbank Girozentrale v Islington London BC [1996] 2 All ER 961 at 997, Lord Brown-Wilkinson; Re Goldcorp Exchange Ltd (in receivership) [1994] 2 All ER.  

[11] Above n 7.

[12] Willliam Blackstone, Commentaries: Commentaries On The Laws of England (1765) Bk 1, Vol 1, Ch 1; Bk 2, Vol 1, Ch 1.

[13]  B Edgeworth, C J and M A Stone, Sackville and Neave, Property Law: Cases and Materials (7^th edition), LexisNexis Butterworth, 2004; Susan Barkehall Thomas and Vicky Vann, Equity: Lexis Nexis Study Guide, LexisNexis Butterworth, 2007; A M Honore, “Ownership” in A G Guest (ed), Oxford Essays in Jurisprudence, Oxford University Press, 1961.  

[14] Yanner v Eaton 201 CLR 351; R Chambers, An Introduction to Property Law in Australia, Law Book Co, 2005; “An Introduction to Property Law in Australia” by Robert Chambers (Sydney: LBC Information Services, 2001) pages i–xliv, 1–524 (2002) MULR 10.   

[15] Wily v St George Partnership Banking Ltd [1999] FCA 33, Finkelstein J, Sackville J.

[16] Ibid; National Provincial Bank v Ainsworth 1965] AC 1175, Lord Wilberforce; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, Brennan J; Norman v FCT (1963) 109 CLR 9, Windeyer J. 

[17] Re Ellenborough Park [1956] Ch 131; Mason v Clarke [1955] AC 778; Mills v Stockman (1966) 116 CLR 61.

[18] Bob Jane T-Marts v The Baptist Union of Victoria (Supreme Court of Victoria, Warren J, 15 September 1999, Unreported).

[19] P Parkinson, Principles of Equity, Law Book Co, Ch 1, 1996; See generally, R P Meagher, D Heydon and M Leeming, Equity: Doctrines and Remedies, (4^th ed), Butterworths, 2002.  

[20] King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54.

[21] [1916] 2 AC 54.

[22] (1999) 196 CLR 101.

[23] Muschinski v Dodds (1985) 160 CLR 583, Brennan J, Gibbs CJ, Deane J.

[24] [1999] FCA 33.

[25] Above n 13. 

[26] Ibid.

[27] [1999] FCA 33; Cf LAC Minerals Ltd v International Corona Resources Ltd (‘LAC Minerals) (1989) 61 DLR (4th) 14 at 50, La Forest J.

[28] Cf Don Chalmers, Introduction to Trusts, the Law Book Co, 1988, 142-71.    

[29] Above n 19; See further, Susan Barkehall Thomas and Vicky Vann, Equity: Lexis Nexis Study Guide, Butterworths, 2007, 3-20.

[30] Keech v Sanford [1558-1774] All ER Rep 230; Chan v Zacharia (1984) 154 CLR 178; Boardman v Phipps [1967] 2 AC 46; Keith Henry & Co Pty Ltd v Stuart Walker & Co Pty Ltd (1958) 100 CLR 342; Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373, Gibbs CJ.

[31] Daly v Sydney Stock Exchange (1986) 160 CLR 371; Bannister v Bannister [1948] 2 All E.R. 133; Rasmanis v Jurewitsch [1970] 70 SRNSW 407; Black v S Freedman & Co (1910) 12 CLR 105, O’Connor J.

[32] Rochefoucauld v Boustead [1897] 1 Ch. 196.

[33] Birmingham v Renfrew (1937) 57 CLR 666, Dixon J; Dufour v Pereira 1769) Dick 419.

 

[34] Re Lind [1915] 2 Ch 345; Chang v Registrar of Titles (1976) 137 CLR 177, Mason J; Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359; Lloyds Bank plc v Rosset [1991] 1 AC 107; Oughtred v IRC (1960) AC 206, Lord Radcliffe.     

[35] Bahr v Nicolay (No 2) (1988) 164 CLR 604.

[36] (1985) 160 CLR 583, Deane J.

[37] Calverley v Green (1984) 155 CLR 242 at 246, Gibbs CJ, 263, Mason and

Brennan JJ; Hepworth v Hepworth (1963) 110 CLR 309, Windeyer J.

[38] Above n 29.

[39] Eves v Eves [1975] 3 All ER 768?; See also Hussey v Palmer [1972] 1 WLR 1338, Lord Denning MR; Cooke v Head [1972] 2 All ER 38, Lord Denning MR. 

[40] Eves v Eves [1975] 3 All ER 768 at 770, Lord Denning MR; See also Hussey v Palmer [1972] 1 WLR 1338, Lord Denning MR; Cooke v Head [1972] 2 All ER 38, Lord Denning MR. 

[41] Above n 14.

[42] Baumgartner v Baumgartner (1987) 164 CLR 137.

[43] Gissing v Gissing [1971] AC 886.

[44] [1971] AC 886, Lord Diplock, Viscount Dilhorne; Pettitt v Pettitt [1970] AC 777; See further, Burns v Burns [1984] 1 All ER 244, [1984] Ch 317; Grant v Edwards [1986] 2 All ER 426; Chapman v Chapman [1954] AC 429, Lord Simonds LC.

[45] [1995] VR 1 613; Cf Clout v Markwell [2001] QSC 91 (unreported, 4 April 2001) at 20, Atkinson J; Parianos v Meluish (Trustee) (2003) FLC 93-130 at 78 - 217, Jacobson JA.

[46] (1985) 160 CLR 583, Deane J.

[47] (1985) 160 CLR 583.

[48] (1985) 160 CLR 583, Gibbs CJ.

[49] (1985) 160 CLR 583 at 8-9, Gibbs CJ.

[50] (1985) 160 CLR 583 at 8-10, Gibbs CJ.

[51] (1985) 160 CLR 583, Deane J.

[52] (1985) 160 CLR 583 at 7, Deane J.

[53] (1985) 160 CLR 583 at 7, Deane J.

[54] (1985) 160 CLR 583 at 7-8, Deane J.

[55] (1985) 160 CLR 583 at 8, Deane J.

[56] Giummeli?

[57] Calverley v Green (1984) 155 CLR 242 at 246, Gibbs CJ, 263, Mason and

Brennan JJ; Hepworth v Hepworth (1963) 110 CLR 309, Windeyer J.

[58] Giummeli ?

[59] Re Lind [1915] 2 Ch 345; Chang v Registrar of Titles (1976) 137 CLR 177, Mason J; Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359; Lloyds Bank plc v Rosset [1991] 1 AC 107; Oughtred v IRC (1960) AC 206, Lord Radcliffe; see, eg, Rathwell v Rathwell (1978) 83 DLR (3d) 289; Pettkus v Becker (1980) 117 DLR (3d) 257; LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14; Korkontzilas v Soulos (1997) 146 DLR (4th) 214.

[60] National Provincial Bank v Ainsworth 1965] AC 1175, Lord Wilberforce; R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, Brennan J; Norman v FCT (1963) 109 CLR 9, Windeyer J. 

[61] Property Law Act 1958 (Vic), s 53(2).

[62] Halsbury's Laws of England (4th ed), vol 9, par 658.

[63] Baumgartner v Baumgartner (1987) 164 CLR 137; Allen v Snyder [1977] 2 NSWLR 685 at 690-1, Glass JA, at 698, Samuels JA; Hohol v Hohol (1980) 6 Fam LR 49, O’Bryan J; Parij v Parij 20 Equity [1997] SASC 6463, Cox, Millhouse and Debell JJ; Rasmussen v Rasmussen [1995] VR 1, Coldrey J; See also, Ogilvie v Ryan [1976] 2 NSWLR 504, Holland J.      

[64] Rasmussen; see, eg, Rathwell v Rathwell (1978) 83 DLR (3d) 289; Pettkus v Becker (1980) 117 DLR (3d) 257; LAC Minerals Ltd v International Corona Resources Ltd (1989) 61 DLR (4th) 14; Korkontzilas v Soulos (1997) 146 DLR (4th) 214.

[65] Giumelli v Giumelli 1999) 196 CLR 101, Gleeson CJ, McHugh, Gummow and Callinan JJ; Cf Baumgartner v Baumgartner (1987) 164 CLR 137, Toohey J.

[67] Stephenson Nominees Pty Ltd v Official Receiver (1987) 76 ALR 485, Gummow J; Lister & Co v Stubbs (1890) 45 Ch D 1; Attorney-General for Hong Kong v Reid [1994] 1 AC 324; G E Dal Pont, ‘Timing, insolvency and the constructive trust’ (2004) 24 Australian Bar Review 262; T Allen. ‘Bribes and Constructive Trusts: AG of Hong Kong v Reid’ (1995) (1) Modern Law Review 87.

[68] D M Paciocco, ‘The Remedial Constructive Trust: A Principled Basis for Priorities Over

Creditors’ (1989) 68 Can Bar Rev 315; Cf Insolvency Act 1986 (UK), Re Paramount Airways Ltd [1993] Ch 223 at 230, Nicholls V-C.  

[69] (1987) 76 ALR 485 at 71, Gummow J; Cf (1987) 164 CLR 137, Toohey J.

[70] (1987) 76 ALR 485 at 71, Gummow J.

[71] (1987) 76 ALR 485 at 62, Gummow J; Contra (1985) 160 CLR 583 at 71, Deane J. 

[72] Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298, Heydon JA; Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1979] 3 All ER 1025 at 1033, Goulding J.

[73] Cf Walsh v Lonsdale (1882) 20 ChD 9, Sir George Jessel MR; Barry v Heider (1914) 19 CLR 197; J & H Just (Holdings ) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546; Heid v Reliance Finance  Corporation Pty Ltd (1983) 154 CLR 326. 

[74] Chalmers, Introduction to Trusts, the Law; Howard K Insell (Ed), LBC Nutshell: Trusts 1991; Denis Ong, Trust Law in Australia, 1999; D M Maclean, Trusts and Powers, the Law Book Company Ltd, 1989; G E Dal Pont and D R C Chalmers, Equity and Trusts in Australia, 3rd ed, Lawbook Co, 2004; Snell’s Principles of Equity 1982; W Scott, Law of Trusts, 4th ed, Little, Brown & Co, 1989, §462.4.

[75]  F W Maitland, The Forms of Action at Common Law, 1909; William Blackstone: Commentaries On The Laws of England,: Bk 2, Vol I, Ch 1. 

[76] Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1989] 3 All ER 14 at 57, [1990] 1 QB 391 at 479; Westdeutsche Landesbank Girozentrale v Islington London BC [1996] 2 All ER 961 at 997, Lord Brown-Wilkinson; Re Polly Peck; Re Goldcorp Exchange Ltd (in receivership) [1994] 2 All ER 806 at 826-827, Lord Mustill; El Ajou v Dollar Land Holdings plc [1993] 3 All ER 717 at 733-734, Millett J; Snell’s Principles of Equity (28th edn, 1982), 193; Goff and Jones, The Law of Restitution (3rd edn, 1986), 78.

[77] Re Polly Peck International plc (in administration) (No 2) [1998] 3 All ER 812, Nourse LJ.  

[78] Judicature Act 1823 (UK), s 23; Imperial Acts Application Act, s 15; Supreme Court Act 1958 (Vic), s 56; Rasmussen v Rasmussen [1995] 1 VR 613, Coldrey J. 

[79] See generally, ‘Equity’s Chameleon — Unmasking the Constructive Trust’ (1997) 16 Aust Bar Rev 46; D M Paciocco; J Dodds, ‘The New Constructive Trust: An analysis of its Nature and Scope’ (1988) 16 MULR 482; “Constructive Trusts” in Finn, Essays in Equity 1985; Sir Anthony Mason, ‘Declarations, Injunctions and Constructive Trusts’ (1980) 11 Univ QLJ 121 at 129.

 

[80] Ibid.

[81] Cf LAC Minerals (1989) 61 DLR (4th) 14 at 50, La Forest J; Murdoch v Murdoch (1973) 41 DLR (3d) 367, Laskin J; Rathwell v Rathwell (1978) 83 DLR (3d) 289; Pettkus v Becker (1980) 117 DLR (3d) 257; Korkontzilas v Soulos (1997) 146 DLR (4th) 214; Sorochan v Sorochan (1986) 29 DLR (4th) 213.

[82] G E Dal Pont, ‘Timing, Insolvency and the Constructive Trust’ (2004) 24 Australian Bar Review 262;

T Allen, ‘Bribes and Constructive Trusts: AG of Hong Kong v Reid’ (1995) 1 Modern Law Review 87.