Constructive Trusts and Discretion in Australia: Taking Stock

Abstract

In Australia, it is often thought that the decision of whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This article argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful 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'-'r..