ABSTRACT
Equity is a means by which the courts can reach the fairest results on any set of facts. That requires the court to be able to impose its will regardless of the expressed wishes of the parties. Thus far we have concentrated on express trusts – which by definition are voluntarily created – and resulting trusts – which arise to fill gaps in the ownership of property. The constructive trust operates in a different way: it acts so that unconscionable dealings with property do not go uncompensated. The constructive trust operates against three principal contexts: to hold the unconscionable actions of fiduciaries to account; to restrict the manner in which property is dealt with in cases of unconscionable conduct by non-fiduciaries; and to make strangers to a trust liable to account to beneficiaries for any involvement in a breach of trust. The means by which these functions are achieved is one of two devices: either an institutional, proprietary constructive trust; or a remedial liability to account which is labelled as a constructive trust.
