Remedial Constructive Trusts. Essay

2262 words - 9 pages

"There is a great fear in our law that recognising a remedial constructive trust will give rise to an indiscriminate or unjustified variation of existing property rights." Graham Moffat: Trusts Law Text and Materials (1999) Discuss.A constructive trust is not the usual kind of trust encountered in Equity. It is a trust which is different from other trusts in that is imposed by a court of law and it cannot be created by an individual. It is considered to be a mean for the courts to reallocate property, which rightfully belongs to one party but is held by another. It is used in cases where a party uses a trust in order to benefit at the expense of another party. Edmund Davies L.J. in Carl Zeiss Stiftung v Herbert Smith & Co. described a constructive trust as "a trust which is imposed by equity to satisfy the demands of justice and good conscience without reference to any express or presumed intention of the parties."Constructive trusts in the United Kingdom Law differ from those of other jurisdictions such as those of the USA and Canada. United Kingdom courts will accept constructive trusts as a substantive institution and a remedy for a breach of expressed trusts or fiduciary duties. A different approach to constructive trusts is that of remedial constructive trusts, an approach that has been accepted in the USA, Canada, New Zealand and Australia. The remedial constructive trust functions as a remedy to the theory of unjust enrichment, but is yet to be accepted in the English legal system. An institutional constructive trust is one that is recognised by the court after a specific range of events have occurred. It is not up to the discretion of the court to impose this type of trust but merely to recognise that a beneficiary has a pre-existing proprietary interest in the trusted property. A remedial constructive trust on the other hand is a trust which is left at the discretion of the court and is imposed by the court. It is not a remedy that will arise in the existence of well defined situations that will enforce it like in the case of an institutional constructive trust. Another difference of the two types of trusts is that whereas an institutional constructive trust will begin as soon as the chain of events occur, the remedial constructive trust will occur when it is decided so by the court.The case of Re Goldcorp Exchange Ltd which came as an appeal from the New Zealand Court of Appeal was an attempt to introduce remedial constructive trusts in England. In this case the question was whether the plaintiff purchasers who had bought gold from an unseparated bulk could each be identified as owners of an individual part of that bulk of gold. Although the New Zealand Court of Appeal had decided that indeed the non-allocated purchasers could be traced to a specific part of the bulk, the Privy Council reversed that decision and treated it as a simple case of vendor - purchaser, thus treating the 1500 plaintiffs as unsecured creditors of Goldcorp...

Find Another Essay On Remedial Constructive Trusts.

Enlightenment Thought in New Zealand Schools

1594 words - 6 pages In this essay I will be looking at how the political and intellectual ideas of the enlightenment have shaped New Zealand Education. I will also be discussing the perennial tension of local control versus central control of education, and how this has been affected by the political and intellectual ideas of the enlightenment. The enlightenment was an intellectual movement, which beginnings of were marked by the Glorious Revolution in Britain

Psychological Egoism Theory Essay

2240 words - 9 pages The theory of psychological egoism is indeed plausible. The meaning of plausible in the context of this paper refers to the validity or the conceivability of the theory in question, to explain the nature and motivation of human behavior (Hinman, 2007). Human actions are motivated by the satisfaction obtained after completing a task that they are involved in. For example, Mother Teresa was satisfied by her benevolent actions and

How Celtic Folkore has Influenced My Family

1587 words - 6 pages Every family has a unique background that influences the way they live and interact with other people. My parents, who emigrated from Ireland to the States with my three brothers in 1989, brought over their own Celtic folklore and traditions that have helped shaped the way our family operates and lives. One aspect of folklore that has helped shape my family dynamic is the Celtic cross—both its background and what role it has played in our lives

Julia Margaret Cameron

1406 words - 6 pages At a time when women were looked upon as being homemakers, wives, mothers and such the late 1850's presented a change in pace for one woman in specific. Photography was discovered in 1826 and soon after the phenomenon of photography was being experimented with and in turn brought new and different ways of photo taking not only as documenting real time, but also conceptualizing a scene in which an image would be taken. Julia Margaret Cameron will

Evaluation of School Improvement

1403 words - 6 pages The evaluation process should be progressive to incorporate overall planning, implement changes, which contribute to success. In order to focus on school climate and norms, the evaluation design must include the students, instructions, and outcomes to improve communication and building-level concerns to be address in this response. School Climate and Social Norms The school principal, other staff leaders, and personnel set the tone and the

Case Study: The Benefits of Animal Testing

1757 words - 7 pages Nine year old Amy has already had a rough start in life. She was born with an abnormal heart that hinders her everyday activities. Amy is unable to keep up with kids her own age because she often tires out easily. As a consequence, she has very little friends and is often alone. Amy is forced to take different medications everyday just to survive. Amy’s life consists of medicine, doctors, and constant hospital visits. However, Amy is due for a

Myth and Magic: Realism in "One Hundred Years of Solitude"

1531 words - 6 pages “He enjoyed his grandmother's unique way of telling stories. No matter how fantastic or improbable her statements, she always delivered them as if they were the irrefutable truth” (Wikipedia, 2011). Experiences are particular instances of one personally encountering or undergoing something and in these moments of time life changes for the best or the worst and memories are formed. These recollections such as riding your first bicycle, going to

Adiponectin: a Novel Indicator of Malnutrition and Inflammation in Hemodialysis Patients

2384 words - 10 pages Objective Protein-Energy malnutrition (PEM) and inflammation are common and overlapping conditions in hemodialysis patients which are associated with increased risk of morbidity and mortality. Adiponectin is an adipocytokine which is exclusively produced by adipose tissue. Few studies in hemodialysis patients have demonstrated that serum levels of adiponectin were significantly higher in malnourished patients compared to well-nourished ones. The

The Congo Free State: A Legacy of Apathy, Exploitation and Brutality

2298 words - 9 pages Between 1885 and 1908, Belgium’s Leopold II ruled Congo, a region in central Africa, as his personal colony, exploiting the resources and inhabitants for his own gain. Leopold allowed and encouraged Europeans and other Westerners to enter Congo and set up companies whose primary purpose was to gather rubber, which was abundant but difficult to get to in the Congo, using the Congolese as the laborers for the Europeans. Rubber gathering in Congo

Selective Exposition in The Lottery, by Shirley Jackson

1073 words - 4 pages Usually when someone hears the word “lottery” the first thing that comes to mind is a large sum of cash that people compete against highly impractical odds to win. Shirley Jackson’s story The Lottery might imply a similar conception based on the title alone, but the story is filled with unknowns never revealing exactly when and where the story takes place, or why the lottery exists; even what the lottery is isn’t revealed until the very end. Yet

Lightning

1857 words - 7 pages INTRODUCTION I remember when I was a young child; I would always be scared whenever there was a severe storm outside that included thunder and lightning. This was especially true in the hours of darkness, when you could really see the lightning. As I grew older this so-called fear of lightning turned into a fascination for this weather phenomena. One of my most vivid memories of lightning as a young man was when I was flying to Florida, the

Similar Essays

Vulnerability And Fiduciary Obligations Essay

4607 words - 18 pages is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another..." (Per Mason J at 97) The undertaking theory cannot sustain itself amidst the recognition of cases where fiduciary relationships have been imposed despite the facts being inconsistent with any `representative' or voluntary element. For example, the established category of employer/employee is non-representative, and, constructive trusts

When The Bubble Burst Essay

1539 words - 6 pages By the time I arrived state side from my second tour in the Middle East the housing bubble had already burst. I noticed a drastic change in the way that many of my friends and family were living. Several of my friends that worked in real estate had sold their boats and seconds houses. My own stock portfolio had lost a third of its value. My sister and her husband had defaulted on their home mortgage leaving them scrambling for a place to live. I

Phase Diagram Essay

4456 words - 18 pages Introduction: Chemical equilibrium is a crucial topic in Chemistry. To represent and model equilibrium, the thermodynamic concept of Free energy is usually used. For a multi-component system the Gibbs free energy is a function of Pressure, Temperature and quantity (mass, moles) of each component. If one of these parameters is changed, a state change to a more energetically favorable state will occur. This state has the lowest free energy

Revolutionary Work Of Art Essay

1890 words - 8 pages Walter Benjamin emphasizes in his essay, “The Work of Art in the Age of its Technological Reproducibility” that technology used to make an artwork has changed the way it was received, and its “aura”. Aura represents the originality and authenticity of a work of art that has not been reproduced. The Sistine Chapel in the Vatican is an example of a work that has been and truly a beacon of art. It has brought a benefit and enlightenment to the art