ABSTRACT
In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device due to the concern that it will bring uncertainty and ambiguity to property rights. The most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 (Cheung Lai Mui), however, departs from this attitude to remedial constructive trusts. Recognising ‘unconscionability’ as the grounds for awarding proprietary relief, this decision deviates from the principle of minimum equity to do justice as applied under the English law of proprietary estoppel. The broad discretion exercised by the CFA in Cheung Lai Mui more closely resembles the Australian approach to proprietary estoppel remedies. This article analyses the newly introduced remedial constructive trust approach and the problems arising from its adoption. It then proposes an analytical framework for the development of proprietary estoppel remedies after Cheung Lai Mui. This framework allows questions regarding what is the proper remedial approach and which factors should be considered in the awarding of constructive trust orders to be adequately addressed.
Jing, Hui, The Remedial Constructive Trust Approach in the Hong Kong Law of Proprietary Estoppel (August 1, 2022), (2023) Conveyancer and Property Lawyer 30-50.
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