Muschinski v Dodds and the Joint Endeavour Principle: the ephemeral distinction between institutional and remedial
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Author(s)
Weber, Dane
Griffith University Author(s)
Year published
2019
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The 1985 High Court case of Muschinski v Dodds provided relief by way of a constructive trust when a joint endeavour broke down without attributable blame in circumstances not contemplated by the parties. This has spurred extensive literature on remedial constructive trusts. Unfortunately, there has been a dearth of literature on the relevance of institutional constructive trusts in joint endeavours. In the 2005 Supreme Court of New South Wales case of Henderson v Miles [No 2], these same principles provided relief for a failed joint endeavour, but constructive trusts were not mentioned — yet the case is cited as an example ...
View more >The 1985 High Court case of Muschinski v Dodds provided relief by way of a constructive trust when a joint endeavour broke down without attributable blame in circumstances not contemplated by the parties. This has spurred extensive literature on remedial constructive trusts. Unfortunately, there has been a dearth of literature on the relevance of institutional constructive trusts in joint endeavours. In the 2005 Supreme Court of New South Wales case of Henderson v Miles [No 2], these same principles provided relief for a failed joint endeavour, but constructive trusts were not mentioned — yet the case is cited as an example of constructive trusts arising from windfalls. This article discusses the relevance of constructive trusts in joint endeavours and, through a case analysis, shows that the distinction between remedial and institutional constructive trusts is ephemeral: constructive trusts arise by operation of law in joint endeavours. They are no mere ‘remedial’ response.
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View more >The 1985 High Court case of Muschinski v Dodds provided relief by way of a constructive trust when a joint endeavour broke down without attributable blame in circumstances not contemplated by the parties. This has spurred extensive literature on remedial constructive trusts. Unfortunately, there has been a dearth of literature on the relevance of institutional constructive trusts in joint endeavours. In the 2005 Supreme Court of New South Wales case of Henderson v Miles [No 2], these same principles provided relief for a failed joint endeavour, but constructive trusts were not mentioned — yet the case is cited as an example of constructive trusts arising from windfalls. This article discusses the relevance of constructive trusts in joint endeavours and, through a case analysis, shows that the distinction between remedial and institutional constructive trusts is ephemeral: constructive trusts arise by operation of law in joint endeavours. They are no mere ‘remedial’ response.
View less >
Journal Title
Australian Property Law Journal
Volume
27
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Copyright Statement
© YEAR Lexis Nexis Australia. This is the author-manuscript version of this paper. Reproduced in accordance with the copyright policy of the publisher.Please refer to the journal's website for access to the definitive, published version.
Subject
Private law and civil obligations