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What Are the Duties of Constructive Trustees?

Author

Daniel Reynolds

There is little discussion in either case law or academic commentary on the duties of constructive trustees. Largely, this is because both streams of discourse are primarily concerned with the circumstances in which constructive trusts are imposed, and the appropriateness of the label of ‘trust’ in such cases. Those questions are of fundamental importance, however the focus on them has led to the result that there is little clarity as to what being a constructive trustee involves at a practical level. This article seeks to answer that question in respect of each of the categories of constructive trust that are generally recognised in Australian law. It does so by examining the rationale of each of the duties of express trustees, and considering their applicability to each category of constructive trust in light of those rationales.

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