Hussey v. Palmer [1972]1 WLR 1286, 1289. It is also termed “institutional constructive trust” by
1
Lord Brown-Wilkinson in Westdeutsche Landesbank Girozentrale v. Islington [1996] A.C. 669, 714-
715
"Constrictive Trusts" (1977) 28 N.Z.L.Q. 123.
2
(1726) 2 Ef.Cas. Abr. 741
3
[19691 2 All E.R. 385
4
1
THE NEW CONSTRUCTIVE TRUST AND PROPERTY RIGHTS OF DE
FACTO SPOUSE
Lord Denning in Eve v. Eve referred to “a constructive trust of a new model”,
which was defined as
“a trust imposed by law wherever justice and good conscience require it. It is a
liberal process, founded largely on principle of equity
It is an equitable remedy by
which the court can enable an aggrieved party to obtain restitution”.1
This new concept is so vague that it can be used by the courts to give a remedy
regardless of institutionalized principles. Certainly, its affinity with constructive
trust, which has been built on recognized rules and within well defined categories,
is relatively remote. The new concept appears to have as its guiding principle the
need to administer law in accordance with justice and good conscience, even if that
will involve discarding established precedent. The uncertainty in this area of the law
is not unexpected. For, as Maudsley observes:
It is possible to read into recent decisions a rule that in cases in which the plaintiff
ought to win, but has no legal doctrine or authority to support him, a constructive
trust in his favor will do the trick.2
It is possible to state that constructive trust will be imposed wherever the courts find
it unconscionable or inequitable for a party to assert title to a property to defeat the
claim of the other party. This provides not only a wide but a vague ground for the
court to award a proprietary remedy. It therefore turns out to be a remedy which
depends on the conscience or the personal notion of fairness or justice of a
particular judge.
Unlike the orthodox constructive trust it does not depend on the existence of
fiduciary relationship; and it does not fall into any of recognise