Research Handbook on Remedies in Private Law
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Research Handbook on Remedies in Private Law

Edited by Roger Halson and David Campbell

This Research Handbook comprehensively and authoritatively reviews the contemporary challenges in research regarding remedies in private law. The Research Handbook on Remedies in Private Law focuses on the most important issues throughout contract, equity, restitution and tort law as they have arisen in the major common law jurisdictions, touching upon those of other jurisdictions where pertinent.
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Chapter 9: Equitable remedies for breach of trust

Duncan Sheehan

Abstract

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.

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