In December 2024 the Final Court of Appeal gave judgment in Hui Chun Ping v Hui Kau Mo (FACV No. 6 of 2024) where the question was considered whether secret profits obtained in breach of fiduciary duty give rise to a constructive trust that constitutes a “true trust” for the purposes of the Limitation Ordinance. Coincidentally the UK Supreme Court has just heard the appeal from the decision of the English Court of Appeal in Hotel Portfolio II UK Ltd (in liquidation) and another v Ruhan and another [2023] Bus LR 160 where one of the issues considered was whether equitable compensation is available against a dishonest assister in respect of a breach of trust involving secret profits, and where, before the Court of Appeal, it was common ground that such profits were held under a “true trust”. This talk will look at the CFA decision and the decision of the English Court of Appeal in Hotel Portfolio II (and if judgment is given, the decision of the UK Supreme Court). It will also provide an overview of the law on constructive trust, referring to such leading cases as Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555, In re Montagu’s Settlement Trusts [1987] 1 Ch. 264, Grupo Torras SA v Al-Sabah [1999] CLC 1469, Ultraframe (UK) Ltd v Fielding [2005] EWHC 1638 and Barlow Clowes International Ltd (in liquidation) v Eurotrust International Ltd [2006] 1 WLR 1476.
Additionally, references will be made to cases such as Williams v Central Bank of Nigeria [2014] AC 1189, Gwembe Valley Development Co Ltd v Koshy [2004] 1 BCLC 131, First Subsea Ltd (formerly BSW. Ltd) v Balltec Ltd [2018] Ch 25, Novoship Finance plc v Mikhaylyuk [2015] QB 499 and Group Seven Ltd and another v Nasir and others [2020] Ch 129. The talk will end with a brief consideration of the decision of the UK Supreme Court in Byers v Saudi National Bank [2024] AC 1191.
(The present presentation will not address common intention constructive trust.)
