Ying Khai Liew, ‘The Secondary-Rights Approach to the “Common Intention Constructive Trust”’

Abstract:
Unlike ‘primary rights’ constructive trust doctrines, the CICT affords courts a wide discretion in determining the appropriate remedy in a particular case. This paper suggests that the CICT can take a step towards conceptual and analytical coherence if approached as a device for courts to award remedies that give effect to A’s secondary rights. When B breaches his primary duty to ensure A does not suffer harm from the unreliability of his induced assumptions, and when this causes A to suffer detrimental reliance, A obtains an unliquidated secondary right to be compensated for any harm, and a judge has discretion to determine the appropriate content of the remedy to compensate A for harm suffered. Since this approach is highly similar to proprietary estoppel, assimilating the CICT within proprietary estoppel can further benefit our understanding and practice of resolving disputes in the family homes context.

Liew, Ying Khai, The Secondary-Rights Approach to the ‘Common Intention Constructive Trust’ (2015). The Conveyancer and Property Lawyer, Forthcoming.

First posted 2015-01-12 07:15:18

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