All ER 961 at 971–2:•It is a mistake to suppose that every situation in which a constructive trust arises the legal owner is necessarily subject to all the fiduciary obligations and disabilities of an express trustee.
Differences with express and resulting trusts•The second major difference is that constructive trusts are not always subject to the requirement of certainty of subject matter •Giumelli v Giumelli(1999) 196 CLR 101 at 112 Gleeson CJ, McHugh, Gummow and Callinan JJ, found that some constructive trusts create or recognise no proprietary interest but rather impose a personal liability to account for losses sustained by constructive beneficiaries. In that situation there is no identifiable trust property
When do constructive trusts arise?•institution/remedy dichotomy •The institutional approach is that it limits constructive trusts to defined sets of circumstances and, by doing so, limits the judge’s discretion in deciding when and how to adjust a person’s beneficial entitlements.
When do constructive trusts arise?•During the 1970s the United Kingdom’s Court of Appeal, led by Lord Denning MR, adopted a free-ranging remedial basis for constructive trusts and came to the view that a constructive trust is ‘imposed by law whenever justice and good conscience require it’: Hussey v Palmer  3 All ER 744 at 747
When do constructive trusts arise?•Later English decisions rejected the new model of constructive trust: Lloyds Bank v Rosset 1 AC 107;  1 All ER 1111. It never took a foothold in Australia where it was criticised as a form of ‘palm tree justice’: Bryson v Bryant(1992) 29 NSWLR 188 at 196, per Kirby P.
When do constructive trusts arise?•Deane J - Under the law of this country — as, I venture to think, under the present law of England … proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion …, subjective views about which party ‘ought to win’ … and ‘the formless void of individual moral opinion’ … Long before Lord Seldon’s anachronism identifying the Chancellor’s foot as the measure of Chancery relief, undefined notions of ‘justice’ and what was ‘fair’ had given way in the law of equity to the rule of ordered principle which is of the essence of any coherent system of rational law. The mere fact that it would be unjust or unfair in a situation of discord for the owner of a legal estate to assert his ownership against another provides, of itself, no mandate for a judicial declaration that the ownership in whole or in part lies, in equity, in that other …
Constructive trusts to enforce agreements concerning property •Incomplete contract for the sale of property - Lysaght v Edwards- equitable conversion •3 quals – specific performance, unconditional, identified property
Constructive trusts to enforce agreements concerning property •Incomplete gifts – Corin v Patton•Fraudulent transactions - Avondale Printers and Stationers Limited v Haggie  2 NZLR 124 ; White City Tennis Club Ltd v John Alexander’s Clubs Pty Ltd  NSWCA 114•Secret trusts
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