Constructive Trusts in Malaysia: A Methodological Reappraisal

Asian Journal of Comparative Law (forthcoming 2025)

24 Pages Posted: 10 Jul 2024

See all articles by Hang Wu Tang

Hang Wu Tang

Singapore Management University - School of Law

Ying Khai Liew

University of Melbourne - Melbourne Law School

Date Written: March 01, 2024

Abstract

In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology for approaching constructive trusts is unhelpful and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided based on pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign its methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.

Keywords: constructive trusts, trusts, malaysia, unconscionability, comparative law

Suggested Citation

Tang, Hang Wu and Liew, Ying Khai, Constructive Trusts in Malaysia: A Methodological Reappraisal (March 01, 2024). Asian Journal of Comparative Law (forthcoming 2025), Available at SSRN: https://ssrn.com/abstract=4883664 or http://dx.doi.org/10.2139/ssrn.4883664

Hang Wu Tang

Singapore Management University - School of Law ( email )

55 Armenian Street
Singapore, 179943
Singapore

HOME PAGE: http://law.smu.edu.sg/directory/tang-hang-wu

Ying Khai Liew (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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