What is a Remedial Constructive Trust?

Presented by Professor William Swadling (University of Oxford) and chaired by Professor Andrew Robertson at Melbourne Law School on Thursday 30 July 2026.

Orthodoxy has it that constructive trusts come in two flavours: institutional and remedial. This lecture tried to pin down the difference between these two categories, something which is not helped by the labels themselves. Though we might think we know what is a remedy, it is difficult to conceive of a trust in such terms. Equally, the word ‘institution’ is not something we normally associate with trusts or indeed with the law in general. What is needed, therefore, is an investigation as to how constructive trusts work, and, in particular, which ones deemed ‘institutional’ and which ‘remedial’. There seem to be at least five views as to the latter term: that all constructive trusts are remedial; that all constructive trusts are genuine trusts; that remedial constructive trusts are orders to pay money in equity; that remedial constructive trusts are ‘Paragon Finance Type 2’ constructive trusts; and, finally, that remedial constructive trusts are genuine trusts arising through an exercise of judicial discretions. Consideration will be given to the differing views of English and Australian courts in this matter.

^{Photo by Floriane Vita on Unsplash}