Author: Mike Lennard
Published: 29 November 2022
Pages: 20

Introduction

This paper will put constructive trusts in context, explain the differences between institutional constructive trusts and the still somewhat controversial remedial constructive trusts, and cover the related process of tracing whereby assets to which a trust attaches are identified.

The structure of this paper will be:

• A reminder/summary of the features of constructive trusts vis-à-vis other trust categories;
• More detailed description of institutional constructive trusts, remedial constructive trusts and tracing;
• Coverage of the current state of New Zealand law in relation to remedial constructive trusts;
• Some comment on the United Kingdom view of remedial constructive trusts;
• An overview of tracing as a process;
• The development of backward tracing: Federal Republic of Brazil v Durant International Corporation (Privy Council);
• Some recent New Zealand decisions on institutional constructive trusts and backward tracing.

Content outline

• Categorisation and context
• Institutional constructive trust
• Remedial constructive trusts
• Tracing