Category Archives: Equity and Trusts

‘Medieval Theories of Conscience’

“The question of what role the human mind plays in moral behaviour – or the study of moral psychology – has been a fruitful area of research in medieval philosophy since at least the early to mid-1990s. Since then scholars have done much to illuminate medieval contributions to such perennial topics as the freedom of […]

Bennett and Hofri-Winogradow, ‘The Use of Trusts to Subvert the Law: An Analysis and Critique’

ABSTRACT This article closes a gap in the theory of trust law by supplying a normative account of the use of trusts to avoid and subvert legal norms outside trust law. While the use of trusts to subvert other law has been a major function thereof since the Middle Ages, theorists of trust law have […]

‘PA’s Revised Uniform Fiduciary Access to Digital Assets Act Takes Effect on January 19, 2021’

“Pennsylvania’s Revised Uniform Fiduciary Access to Digital Assets Act will become effective on January 19, 2021. The Act ‘provides the authority for certain categories of fiduciaries to access a deceased individual’s digital assets or electronic communications, and creates a framework for disclosure of an individual’s digital assets and electronic communications’. The Act will not apply […]

Ying Khai Liew, ‘Limitation Periods and Constructive Trusts in Malaysia’

ABSTRACT Malaysia, as a former British colony, has inherited much of its trusts law from the English. One notoriously difficult area of law is constructive trusts. Precisely when and why constructive trusts arise are fundamental but imperfectly understood matters. This is unfortunate, because the lack of understanding might, in practice, be critically relevant for the […]

Ying Khai Liew, ‘Proprietary Estoppel Remedies in Hong Kong: Lessons from Singapore, England, and Australia’

ABSTRACT This paper addresses the remedial approach which ought to be taken in relation to proprietary estoppel, an important matter which Hong Kong courts have yet to address explicitly. Drawing from the divergent experiences of England, Australia, and Singapore, it makes two central points. First, the provision of expectation relief, as opposed to compensation for […]

Ying Khai Liew, ‘Constructive Trusts and Discretion in Australia: Taking Stock’

ABSTRACT In Australia, it is often thought that the decision whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This paper argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful further to distinguish between cases where judges take into account […]

Liew and Harding, ‘Asia-Pacific Trusts Law: Theory and Practice in Context (introductory chapter)’

ABSTRACT We organised the inaugural meeting of the ‘Asia-Pacific Trusts Law’ project in December 2019 at the Melbourne Law School, University of Melbourne. The symposium brought together lawyers and academics from the 17 jurisdictions of the Asia-Pacific region with the highest nominal GDP according to the International Monetary Fund. The jurisdictions are (from highest GDP […]

Ying Khai Liew, ‘Justifying Anglo-American Trusts Law’

ABSTRACT Is the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this paper suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively […]

Ying Khai Liew ‘“Unconscionability” and the Case Against Lumping: Three Case Studies’

ABSTRACT This paper argues that unconscionability provides no good basis for arguments in favour of lumping equitable doctrines in English law. It explores three areas of equity where unconscionability has most strongly divided lumpers and splitters: undue influence and unconscionable bargains; proprietary estoppel and constructive trusts; and the ‘rule in Re Rose’ and the decision […]

‘Court of Appeal: Expert was not under “fiduciary duty” to client’

“The Court of Appeal has overturned the first decision in England and Wales to hold that an expert witness owed a fiduciary duty to their client. Lord Justice Coulson did not rule out the possibility that a fiduciary relationship might exist but said there was no need to find one here because the expert witness […]