in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp.789 - 798
Abstract: In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing  HKCFA 19 deviated from the foregoing attitude to remedial constructive trusts. It recognised “unconscionability” as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietary estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise from the adoption of such an approach in Hong Kong law.
Post a Comment