Tracing and Associated Claims in Australian Law

Abstract

This article considers how the law of tracing and associated claims (that is, claims that rely sometimes or always upon tracing to establish an element of the claim) should be understood in Australia in light of the High Court�s jurisprudence, and questions the acceptance by Australian lower courts of the English model represented by Foskett v McKeown. It first discusses the four most relevant High Court authorities. Two modes of identifying trust property and four distinct ways in which an entitlement to property, leading to a proprietary remedy, can be claimed are identified. It then evaluates within the context of Australian law five propositions that underlie the English model. It argues that almost all of these propositions are inconsistent with Australia�s nascent law of tracing and associated claims and are not defensible on principled grounds. This clears the way for principled development of the Australian law.