THE REMEDIAL CONSTRUCTIVE TRUST: A PRINCIPLED BASIS FOR PRIORITIES OVER CREDITORS

Abstract

The constructive trust is often used as a remedy in cases of unjust enrichment. Where it is employed, specific property owned or possessed by the defendant is impressed with a trust in favour of the constructive trust beneficiary, thereby removing that property from the defendant's estate. The remedy therefore has the effect of securing the plaintiffs claim. Despite this, courts have yet to establish a principled basis for deciding to award this priority in particular cases. In this article the author examines a number of principles that can be consulted to determine whether the remedial constructive trust should be employed in preference to a personal remedy in cases of unjust enrichment.