Trust and theft

doi:10.1017/CBO9780511779213.012

10 - Trust and theft

Published online by Cambridge University Press: 10 November 2010

Robert Chambers

Edited by

Elise Bant and

Matthew Harding

Show author details

Elise Bant: Affiliation:
University of Melbourne
Matthew Harding: Affiliation:
University of Melbourne

Book contents

Get access

Summary

This chapter concerns the trust as a response to theft. For anyone hoping to recover misappropriated assets or their traceable proceeds, this is an important practical issue. For a trust lawyer, it also involves fascinating questions about the division between law and equity, the nature of equitable interests, and the reasons why trusts arise. It is an issue wherever there is a law of trusts, but of particular interest in Australia thanks to the High Court's judgment in Black v S Freedman & Co Ltd. An employee stole money from his employer and paid it to his wife, and the court held that the traceable proceeds of the stolen money were held in trust for the employer. While this might have been regarded as a trust arising in response to a breach of fiduciary duty, O'Connor J did not rely on this, but said, ‘[w]here money has been stolen, it is trust money in the hands of the thief, and he cannot divest it of that character’.

This trust has been the subject of a recent debate in the Journal of Equity between Susan Barkehall Thomas and John Tarrant. Barkehall Thomas argued that a trust is not possible so long as the victim retains legal title to the stolen assets, but if that title is lost, then the traceable proceeds can be held in trust.

Information

Type: Chapter
Information: Exploring Private Law , pp. 223 - 246

DOI: https://doi.org/10.1017/CBO9780511779213.012 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

References

Thomas, S Barkehall, ‘Thieves as Trustees: The Enduring Legacy of Black v S Freedman & Co Ltd’ (2009) 3 J Eq52Google Scholar

Tarrant, J, ‘Property Rights to Stolen Money’ (2005) 32 UWALR234Google Scholar

Tarrant, J, ‘The Theft Principle in Private Law’ (2006) 80 ALJ531Google Scholar

Tarrant, J, ‘Thieves as Trustees: In Defence of the Theft Principle’ (2009) 3 J Eq170Google Scholar

Penner, J, ‘Value, Property, and Unjust Enrichment: Trusts of Traceable Proceeds’ in Chambers, R, Mitchell, C, and Penner, J (eds), The Philosophical Foundations of the Law of Unjust Enrichment (Oxford University Press, Oxford 2009) ch 11Google Scholar

Fox, D, ‘Bona Fide Purchase and the Currency of Money’ (1996) 55 CLJ547CrossRef Google Scholar

Fox, D, Property Rights in Money (Oxford University Press, Oxford 2008) ch 8Google Scholar

Stevens, R, Torts and Rights (Oxford University Press, Oxford 2007) 63–6CrossRef Google Scholar

Bridge, M, Personal Property Law (3rd edn Oxford University Press, Oxford 2002) 13Google Scholar

Elias, G, Explaining Constructive Trusts (Clarendon Press, Oxford 1990)Google Scholar

Chambers, R, ‘Constructive Trusts in Canada’ (1999) 37 Alberta L Rev173Google Scholar

Burrows, A, The Law of Restitution (2nd edn Butterworths, London 2002) 15Google Scholar

Edelman, J and Bant, E, Unjust Enrichment in Australia (Oxford University Press, Oxford 2006) 123, 129Google Scholar

Birks, P, Unjust Enrichment (2nd edn Oxford University Press, Oxford 2005) 78–82CrossRef Google Scholar

McInnes, M, ‘Interceptive Subtraction, Unjust Enrichment and Wrongs: A Reply to Professor Birks’ (2003) 62 CLJ697CrossRef Google Scholar

Cooke, E, Land Law (Oxford University Press, Oxford 2006) 207–8Google Scholar

Edelman, J, Gain-Based Damages (Hart Publishing, Oxford 2002) 67–8Google Scholar

Goode, R, ‘Property and Unjust Enrichment’ in Burrows, A (ed), Essays on the Law of Restitution (Oxford University Press, Oxford 1991) 215Google Scholar

Millett, P, ‘Bribes and Secret Commissions’ [1993] RLR 7 reprinted in Birks, P (ed), The Frontiers of Liability (Vol 1) (Oxford University Press, Oxford 1994) 51Google Scholar

Swadling, W, ‘Explaining Resulting Trusts’ (2008) 124 LQR72Google Scholar

Häcker, B, ‘Proprietary Restitution After Impaired Consent Transfers: A Generalised Power Model’ (2009) 68 CLJ324CrossRef Google Scholar

Chambers, R, Resulting Trusts (Clarendon Press, Oxford 1997) 201–12CrossRef Google Scholar

Accessibility standard: Unknown

Accessibility compliance for the PDF of this book is currently unknown and may be updated in the future.