Topic: Quistclose trusts

Presenter: Dr Emily Hudson

There is much literature considering the better characterisation of the Quistclose trust, named after the famous decision of the House of Lords in Quistclose Investments v Rolls Razor [1970] AC 567. Such trusts have been held to arise where assets (usually money) are leant for a specific purpose, and exist until such time as the money is used for that purpose. If performance becomes impossible or is not carried out, the money returns to the lender. However, questions as to the better characterisation of the Quistclose trust rest on the prior conclusion that a trust can and should arise. Whilst this will undoubtedly be informed by doctrinal matters, this paper focuses on broader economic and normative questions about whether it is desirable to recognise a trust in such situations, and – if so – whether the Quistclose trust, as a functional security interest, ought to be the subject of regulation, for instance under the Personal Property Securities Act 2009 (Cth).

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