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Intention and Quistclose trusts in the Hong Kong Court of Final Appeal: a disguised departure from the orthodoxy?
Published online by Cambridge University Press: 12 February 2025
Extract
The irony behind a simple definition of ‘[t]rusts for the transfer of money or other property for a specified purpose’1 is that, in continuing to name them after Barclays Bank v Quistclose Investments,2 the doctrine seems to be as elusive as ever.3 In China Life Trustees v China Energy Reserve and Chemicals Group Overseas Company,4 the task of throwing light on the Quistclose trust fell to the Hong Kong Court of Final Appeal (HKCFA) for the first time.
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- Current Developments: Case Comment
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- © The Author(s), 2025. Published by Cambridge University Press on behalf of The Society of Legal Scholars
Footnotes
†
Our thanks to Christopher Sargeant, Jonathan Chu and the anonymous reviewer for their feedback. When this case was heard and decided in 2024, this author was a Judicial Assistant of the Hong Kong Court of Final Appeal. All views expressed (and any errors) herein are those of the authors only, and should not be taken to represent those of the Hong Kong Court of Final Appeal or its Judges.
References
1 Prickly Bay Waterside v British American Insurance Company [2022] UKPC 8, [2022] 1 WLR 2087, at [1].
2 [1970] AC 567 (HL).
3 China Life Trustees v China Energy Reserve and Chemicals Group Overseas Company [2024] HKCFA 15, (2024) 27 HKCFAR 359, at [103]–[104] (Gummow NPJ).
4 Ibid.
5 Prickly Bay, above n 1, at [29].
6 [2002] UKHL 12, [2002] 2 AC 164.
7 China Life, above n 3, at [19].
8 Ibid, at [103]–[104].
9 Ibid, at [111], [113].
10 Ibid, at [116].
11 Ibid, at [100].
12 Ibid, at [148].
13 Ibid.
14 Ibid, at [153].
15 Ibid, at [20], [64].
16 Ibid, at [1]–[10].
17 Ibid, at [20]–[21], [57].
18 Ibid, at [21].
19 Ibid, at [12].
20 Ibid, at [91].
21 Ibid, at [14].
22 Ibid, at [65]–[66].
23 Ibid.
24 Ibid, at [69].
25 Hudson, E ‘A normative approach to the Quistclose trust’ (2017) 80(5) Modern Law Review 775 at 779, 781–783CrossRefGoogle Scholar.
26 Twinsectra, above n 6, at [92], [100].
27 Prickly Bay, above n 1, at [31].
28 Twinsectra, above n 6, at [92]; Twinsectra v Yardley [1999] EWCA Civ 1290, [1999] Lloyd’s Rep Bank 438 at [81] (Potter LJ); Lord Millett ‘The Quistclose trust – a reply’ (2011) 17 Trusts & Trustees 7 at 12–13.
29 China Life, above n 3, at [19].
30 Ibid, at [54] (Ribeiro PJ).
32 Hudson, above n 25, at 783.
33 China Life, above n 3, at [64]–[66].
34 Twinsectra, above n 6, at [73].
35 Ibid, at [100]; Millett, Lord ‘Foreword’ in Swadling, W (ed) The Quistclose Trust: Critical Essays (Oxford: Hart Publishing, 2004)Google Scholar.
36 Ibid, at [73]–[74].
37 J Penner ‘Lord Millett’s analysis’ in Swadling, above n 35, p 54.
38 Conditionality is the ‘essential feature’: R Chambers ‘Restrictions on the use of money’ in Swadling, above n 35, p 77.
39 China Life, above n 3, at [45].
40 Ibid, at [21], [57].
41 Ibid, at [8].
42 Ibid, at [3].
43 China Life Trustees v China Energy Reserve and Chemicals Group Overseas Company [2023] HKCA 966.
44 China Life, above n 3, at [144]–[145].
45 Ibid, at [147] (emphasis added).
46 Ibid, at [118].
47 Ibid, at [148] (emphasis added).
48 (1991) 102 ALR 681.
49 China Life, above n 3, at [8] (Cheung CJ), [20], [34] (Ribeiro PJ), [143]–[148] (Gummow NPJ).
50 Ibid, at [143]–[148].
52 China Life, above n 3, at [54].
53 Ibid, at [7].
54 Hudson, above n 25, at 783.
55 See eg Hudson, above n 25; Worthington, S Equity (Clarendon Law Series) (Oxford: Oxford University Press, 2nd edn, 2006) p 256 Google Scholar.