The Api-Api Constructive Trust Test: Coming Out of the Murky Into Dangerous Waters?

Abstract

In Malaysia, the doctrine of constructive trusts has always been accepted as a doctrine firmly grounded on principles of Equity and Trusts in England and Wales. A constructive trust must be imposed based on clear principles as opposed to being imposed on an arbitrary basis. Recently in July 2017, the Federal Court in Perbadanan Kemajuan Pertanian Selangor v JW Properties Sdn Bhd (2017) MLJU 1107 has laid down a somewhat "three pronged test" for the workings of constructive trust. This decision seems to now suggest that the Malaysian position is that constructive trusts are to be imposed as a "remedial device" on the basis of "unjust enrichment" i.e. as a remedial constructive trust. Whilst this may be argued as one of the clearer pronouncements of the apex court in Malaysia on the point of constructive trusts, the question that needs to be addressed is, has the apex court provided clarity or caused further trepidation amongst those who could be possibly affected by the application of the law pronounced in this case. The papers primary contribution is the finding that whilst the decision provides a relief from the past plethora of uncertainty as seen in the list of cases discussed, the elements laid down also seem to lack force and clarity of basis which may cause some far reaching implications. Contribution/ Originality: The papers primary contribution is the finding that whilst the decision provides a relief from the past plethora of uncertainty as seen in the list of cases discussed, the elements laid down also seem to lack force and clarity of basis which may cause some far reaching implications.

Perceived Risk on Online Store Image Towards Purchase Intention

“…Taking this into consideration, delivery risk in this study is defined as the probability for consumers to concern about the result of the delivery process (Zhang et al, 2012). Consumers feel important towards after-sale services to include warranty, guarantee, malfunction product returning and more even in traditional stores and online stores (Zhang et al, 2012;Singh, Hussein & Dahlan 2018). Therefore, after-sale risk in this study is defined as the probability for consumer's concern toward risk issues after they received the product (Zhang et al, 2012).…”

Proprietary Remedies for Constructive Trusts: A ’Commonwealth Yardstick’ for Malaysian Courts

“…Authorities suggest that in this category of constructive trusts, a trust comes into play -at the discretion of the judge, who has the liberty to consider whether or not to create new property rights on a case-bycase basis‖ (Liew, 2016) as a -judicial remedy‖ (Westdeutsche Landesbank Girozentrale and Islington London Borough Council, 1996) and the imposition of a -trust by way of a remedy‖ (Ultraframe (UK) Ltd and Fielding, 2005). It has been submitted that, therefore, if there is no fiduciary obligation present in the circumstances, the courts will need to use the constructive trust as a ‗remedy' in the form of a remedial constructive trust (Iqbal-Singh et al, 2018).…”

“…It has the effect of taking the title to the property from one person whose title unjustly enriches him, and transferring it to another who has been unjustly deprived of it‖ Tay et al (2009). It has been submitted that these elements laid down in the Api-Api Case, seem to lack -…clarity as to the parameters of the elements laid down‖ (Iqbal-Singh et al, 2018). If remedial constructive trusts are to be imposed based on discretion, then it is submitted that decisions could be arrived at using different parameters for a proprietary remedy which results from a constructive trust.…”

“…It is a well-known fact that a constructive trust when imposed will give rise to a claim which is proprietary in nature which will then have far reaching implications for third parties (Liew, 2016). There is further trepidation of such implications in circumstances where are there are no clear guiding principles given by the courts as seen in the judicial pronouncements above (Iqbal-Singh et al, 2018). This article will attempt to provide some elucidations on…”