Actions against a 3rd party

A personal remedy is preferable if the property has been dissipated.

A proprietary remedy is preferable if the trustee is bankrupt or the value has increased.

Equitable action against 3rd party in receipt of property in breach of

trust

Personal action to obtain compensation it is necessary to Proprietary action

impose a constructive trusteeship

Accessory Intermeddling Recipient liability Defendant is a Defendant is an

liability constructive innocent
A non-trustee who Unconscionability trustee volunteer
Dishonesty test: carries out an act test:
1. Must be characteristic of a 1. Trustee 1. Clean 1. Clean
positive act of trustee (trustee de transferred substitution substitution
assistance son tort) will be trust property 2. Mixed asset 2. Mixed asset
2. Dishonest = liable. to a stranger 3. Withdrawals 3. Withdrawals
conscious 2. Stranger from mixed from mixed
impropriety received trust bank bank
(Royal Brunei property for account (Re account
own benefit Hallett / Re (Claytons
Common law personal action 3. Stranger had Oatway) Case)
(restitution) requisite
1. Claimant must be legal owner (co- degree of
trustee) knowledge,
2. Strict liability no proof required making it

Defence:
1. Change of position (Lipkin Gorman v.