Choice of Law Rules in Australia for Resulting and Constructive Trusts

Abstract

It is both surprising and troubling that Australia’s choice of law rules for resulting and constructive trusts are fundamentally unsettled. A key reason for this unsatisfactory state of affairs is that the choice of law discussion has not proceeded on the basis of a holistic understanding of domestic law. Rejecting the suggestion that the lex fori ought always to apply to equitable claims, this article takes the view that the development of choice of law rules is closely informed by a proper understanding of domestic law. It proposes a structured understanding of domestic law by drawing on the different ways in which resulting and constructive trusts are informed by the plaintiff’s and defendant’s pre-trial rights and duties. The article then demonstrates how this understanding can lead to a systematic development of the choice of law rules that apply to resulting and constructive trusts.