James is a solicitor who runs a small practice in Cessnock, NSW. James is married to Sarah, who is a senior manager at a local business in Cessnock that manufactures mining equipment.

James is a solicitor who runs a small practice in Cessnock, NSW. James is married to Sarah, who is a senior manager at a local business in Cessnock that manufactures mining equipment. Last year, Andrew, who is the manager of the local branch of the BNZ Bank in Cessnock, retained James to arrange a mortgage over a property in Sydney which one of BNZ’s customers – George – was buying for $2.5m. George had arranged with BNZ to borrow $2m of the purchase price from BNZ, secured by a mortgage over the property, and he had a further $500,000 in savings. BNZ advanced the $2m to James, and Andrew asked him to arrange the mortgage. George was also a client of James, and so George asked James to act for him in the mortgage transaction. James agreed to do that and so George transferred his savings to James so they could be used when the purchase transaction took place. James held the funds he received from BNZ and George in separate client accounts. James thought it was helpful to BNZ and George for him to act for both of them in the transaction, as it would save on costs, and so he did not inform either BNZ or George that he was acting for the other in the transaction. While dealing with Vicki, the vendor of the property, on behalf of George, James became aware that Vicki wanted a quick sale and was prepared to accept a sale price of only $2m. Seeing an opportunity to make a profit for himself, James transferred George’s deposit to Vicki, along with $1.5m of the BNZ funds, to fund the purchase, and he deposited the remainder of the BNZ funds into the personal bank account that he held at CommBank. In the rush to arrange this, James forgot to arrange the mortgage for BNZ. The account at CommBank into which James deposited the remainder of the BNZ funds was held jointly by James and Sarah, each of whom had authority to use the CommBank account individually. James did not mention the deposit to Sarah. The account had been in overdraft, with a debt of $10,000 owing, so Sarah was surprised to see a large positive balance when she next looked at the account on her banking app. Sarah knew that James’s legal practice was not thriving. However, knowing that James had been in trouble for taking client funds in the past, Sarah decided not to ask any questions.

I wish I could be kindly advised whether the relationship (upon the house and the money) among James/George/Andrew were considering trust or not. If there are trusts, are they express/ resulting (presumed or quistclose)/ constructive trusts? Were the remaining money also constructive trust caused by breach of fiduciary duty? Thanks a lot. 

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