Australian court's approach to the constructive trust?

Haha nah I'm not at Macquarie, nice to know we're not the only ones suffering through it though! If you're still looking, my understanding is that it varies somewhat by category of CT. The HCA isn't rushing to make a sweeping statement on it, so the lower courts are applying a slightly scattered series of related statements.

The position for something like a common intention constructive trust, for example, is that prima facie it's still institutional. But because of those numerous pronouncements from the HCA that you shouldn't impose a CT if another remedy can do justice – considering also things like practicality, proportionality, and third party interests – it's effectively remedial in nature.

The recent position of various state courts seems to be that the date of the beginning of a CT is more or less discretionary, which also means that the CT itself is more remedial in nature. You get decisions like Boumelhem on this basis, although some of the articles I've read were fairly critical of that judgment.

/r/auslaw Thread Parent