THE 'JOINT ENDEAVOUR CONSTRUCTIVE TRUST' DOCTRINE IN AUSTRALIA: DECONSTRUCTING UNCONSCIONABILITY

The 'joint endeavour constructive trust' doctrine, propounded for the first time by the High Court in Muschinski v Dodds, is firmly part of modern Australian law. Yet, its precise requirements and remedial approach are poorly understood and inconsistently applied. The primary contributing factor is the prevailing understanding that unconscionability must be established for the doctrine to apply, and that the remedial approach aims to avoid unconscionability. But unconscionability has not been precisely explained, which has led to the erroneous view that the joint endeavour constructive trust doctrine is discretion-based instead of rule-based. This article argues, first, that unconscionability, either per se or as implying the need for wrongdoing, is not a prerequisite for the application of the doctrine, and that the doctrine is triggered by ascertainable and predetermined real world events. Second, this article argues that the remedial aim of avoiding unconscionability finds expression in a structured remedial approach: courts do not exercise open-ended remedial discretion. This deconstruction allows us to appreciate that the rationale of the doctrine lies in its autonomy-enhancing function, and also allows us to resolve prevailing uncertainties concerning the interplay between the joint endeavour constructive trust doctrine and the common intention constructive trust doctrine.