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Duncan Sheehan

This chapter examines the current debates around equitable compensation for breach of trust and how that should be quantified. Two competing views exist: the traditional view is that equitable compensation involves a falsification of the account of the trust - essentially pretending the disbursements never happened - where causation is largely irrelevant. The second view is that the claimant should only recover losses caused counterfactually by the breach of trust. In some circumstances these can give quite different answers. The chapter examines the leading cases across both England and Australia and concludes that where the performance of the trust is essentially completed – even if defectively – unwinding the whole transaction goes against the expectations of the parties and gives the claimant more than he would otherwise get had the trust been performed properly. In such cases the claimant should only recover losses caused by the breach.