ABSTRACT
The ‘joint endeavour constructive trust’ doctrine, propounded for the first time by the High Court in Muschinski v Dodds (1985) 160 CLR 583), is firmly part of modern Australian law. Yet, its precise requirements and remedial approach are poorly understood and inconsistently applied. The primary contributing factor is the prevailing understanding that ‘unconscionability’ is a requirement for the doctrine to apply, and that the remedial approach aims to ‘avoid unconscionability’. But ‘unconscionability’ has not been precisely explained, which has led to the erroneous view that the doctrine is discretion-based instead of rule-based. This paper argues, first, that unconscionability, either per se or implying the need for wrongdoing, is not a prerequisite for the doctrine to apply: the doctrine is triggered by ascertainable and pre-determined real-word events. Secondly, it argues that the remedial aim of ‘avoiding unconscionability’ finds expression in a structured remedial approach: courts do not exercise open-ended remedial discretion. This deconstruction allows us to appreciate that the rationale of the doctrine lies in its autonomy-enhancing function. It also allows us to resolve prevailing uncertainties concerning the interplay between the ‘joint endeavour constructive trust’ and ‘common intention constructive trust’ doctrines.
Liew, Ying Khai, The ‘Joint Endeavour Constructive Trust’ Doctrine in Australia: Deconstructing Unconscionability (May 4, 2021). Adelaide Law Review (2021 forthcoming).
First posted 2021-05-06 10:10:17
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