ABSTRACT
This article critiques Australian equity’s drift towards ‘non-proprietary’ constructive trusts and contrasts it with English law’s institutional model in FHR European Ventures. Using Giumelli v Giumelli, Grimaldi and Bofinger as focal points, it argues that recasting accounting obligations as truncated trusts collapses the distinction between proprietary relief and equitable debt. It proposes a framework confining proprietary constructive trusts to specific assets or diverted opportunities, with personal accounting for dissipated gains or non‑fiduciary breaches, thereby avoiding hybrid anomalies exemplified by Warman International v Dwyer. The article calls for High Court clarification to realign fiduciary remedies with equity’s prophylactic objectives.
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Thao Le and Mark Bowler-Smith, Problematic Distinction(s) Between Proprietary and Non-Proprietary Constructive Trusts, Trusts & Trustees. Published: 27 December 2025.
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