The Honourable William Gummow AC on the True Character of a ‘Quistclose’ Trust

The Honourable William Gummow AC was, for many years, one of Australia’s leading jurists.  He is a former member of the High Court of Australia.  Born 9 October 1942, he has long been a significant contributor – as a barrister, a judge and text book writer – to Australian jurisprudence, in particular in the sphere of equity.  Following his retirement from the High Court on 8 October 2012 he was appointed to the Court of Final Appeal of Hong Kong as a non-permanent judge.  The non-permanent judges of that court presently include The Honourable Patrick Keane AC and the Honourable James Allsop AC.  It was in Mr Gummow’s capacity as a non-permanent judge of the said Hong Kong court that he wrote one of the lead judgments in China Life Trustees Limited v China Energy Reserve and Chemicals Group Overseas Company Limited & Ors [2024] HKCFA 15 (14 June 2024) concerning the Quistclose Trust jurisprudence. Separate substantive judgments were written by Mr Justice Gummow NPJ and Mr Justice Ribeiro PJ.  The other members of the court – Chief Justice Cheung, Mr Justice Fok PJ and Mr Justice Lam PJ – agreed with Mr Justice Ribeiro and Mr Justice Gummow.  For convenience and brevity, only, Justice Gummow’s judgment is set out below:

Mr Justice Gummow NPJ:

99. These appeals present the first occasion for the Court of Final Appeal to consider that variety of trust associated with the speech of Lord Wilberforce (with whom the other Law Lords agreed) in Barclays Bank Ltd v Quistclose Investments Ltd [83] . The term “Quistclose trust” is used to identify that trust.

100. What is a “Quistclose trust”? In general terms, the expression describes the situation where X pays money (or transfers other personal property) to Y and as a matter of intention, objectively discerned, the money is to be applied solely for a specific purpose; if that purpose fails Y is subject to an undertaking, express or as a matter of inference, to return the money to X. The essential issue is whether, on the evidence, X and Y intended that the money should be applied by Y only for a specific purpose and, if that fails, returned by Y to X.

101. The appeals to this Court should be allowed but there are several steps to reach that outcome. First, the dispute concerns personal not real property and no question arises of the operation of the Land Registration Ordinance [84] considered by the Privy Council in Chu Yam On v Li Tam Toi Hing [85] .

102. Secondly, the issues concerning Quistclose trusts arise here somewhat indirectly. If certain funds were subject to the garnishee order sought by the respondent, China Life, they could not be used for other purposes pursuant to a Quistclose trust. But, as the appellants contend, if the funds were beneficially owned by a third party, under a Quistclose trust, the garnishee order could not reach them.

103. Thirdly, a difficulty in considering the “Quistclose trust” is found in the very ambiguity involved in the use of the title of a case to identify a legal institution. Edelman J recently observed [86] : “It can be a sign of lack of clarity of principle when a legal principle or rule comes to be known by reference to the case in which it was first set out rather than by reference to any point of principle.”

104. In Chapter 6 of his book “The Laws of Restitution”, published in 2023, Professor Stevens [87] refers to the use of labels to disguise the lack of understanding of new doctrine. He instances the use of “the name of the case that is said to have originated it” and refers to “the rule in Rylands v Fletcher ”. For a modern example Professor Stevens cites the “ Woolwich Principle” in the law of unjust enrichment affecting repayments by the Revenue, derived from Woolwich Equitable Building Society v I.R.C. [88] . He might have added the “Quistclose trust”. [89]

105. Fourthly, as late as 1996 Lord Browne-Wilkinson observed: [90]

“wise judges have often warned against the wholesale importation into commercial law of equitable principles [given] the certainty and speed which are essential requirements for the orderly conduct of business affairs”.

106. That caution has appeared in decisions subsequent to Quistclose itself. For example, in Twinsectra Ltd v Yardley Lord Millett stressed that payments are routinely made in advance for particular goods and services but they do not constitute trust moneys in the recipient’s hands. [91] In First City Monument Bank Plc v Zumax Nigeria Ltd Lewison LJ warned that to hold there was a trust where moneys were credited to the bank account of another would “paralyse the business of banking”. [92]

The Quistclose Case

107. Mr John Bloom was the entrepreneur behind Rolls Razor Ltd (“RR”). [93] It obtained a loan from one of Bloom’s companies, Quistclose Investments, on express terms that the money would “only” and “exclusively” be used by RR to pay a dividend. The money was paid into a special account with Barclays Bank, with which RR had a large overdraft. RR went into voluntary liquidation before the dividend had been paid. Quistclose Investments then sued RR and the Bank and successfully claimed that the money had been held by RR on trust to pay the dividend and, the trust having failed, there was in operation a secondary trust for the benefit of Quistclose Investments. Lord Wilberforce declared that a “necessary consequence” of a “process simply of interpretation” was that there was a “primary trust” and a secondary trust “if the primary trust fails” [94] .

108. Had the primary trust been performed and the dividend paid before the liquidation of RR the liability of that payment to attack as a preference would have turned on the applicable preference provisions in the relevant legislation. [95]

109. In Quistclose , Lord Wilberforce declared that there was “surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies” and in giving effect to “practical arrangements” by “the flexible interplay of law and equity”. [96] Subsequently Mason and Deane JJ observed that there is “no dichotomy” between contract and trust, the latter providing “one of the most important means of protecting parties in a contractual relationship and of vindicating contractual rights.” [97]

110. In discussing In re Rogers , [98] Lord Wilberforce noted that “if the primary purpose cannot be carried out, the question arises if a secondary purpose (i.e., repayment to the lender) has been agreed, expressly or by implication ”, holding that “if it has, the remedies of equity may be invoked to give effect to it”. His Lordship saw “no reason why the flexible interplay of law and equity cannot let in these practical arrangements, and other variations if desired”, commenting that “it would be to the discredit of both systems if they could not.” [99] In the present appeals, where there was no express undertaking as to repayment, the possibility of inferring the requisite intention to restrict use of the funds bears on the issues between the present parties.

Three Possible Meanings

111. There are at least three possible meanings of the term “Quistclose trust”. The first is that it identifies a new species of trust. This in their written submissions the present parties correctly deny.

112. In Legal Services Board v Gillespie-Jones Bell, Gageler and Keane JJ said: [100]

“The terminology of a ‘ Quistclose trust’ is helpful as a reminder that legal and equitable remedies may co-exist. The terminology is not helpful if taken to suggest the possibility apart from statute of a non-express trust for non-charitable purposes.”

Their Honours cited the statement in Re Australian Elizabethan Theatre Trust that to speak of a Quistclose trust as if it were more “than an example of the particular operation of principle upon the facts as found is to set [one] off on a false path.” [101] They also referred to passages to the same effect by Lord Millett in the 2002 decision in Twinsectra . [102] Then in 2004 Lord Millett wrote that a Quistclose trust may be any one of the categories of trust, “depending on the facts of the particular case and the boundaries between these various forms of trust …” [103] Further, in Raulfs v Fishy Bite Pty Ltd Campbell JA said: [104]

“ Quistclose recognises that sometimes there can be a trust whose terms are that the trust property is to be paid to particular people, and if it is not paid to those people, it is to be held for someone else. That is a matter arising from analysis of the facts of the particular case in accordance with well established principles for identifying when there is a trust, not because there is any separate legal institution known as a ‘ Quistclose trust’.”

113. One now turns to the second and third use of the term Quistclose trust. The second sees this as an instance of co-existence and interaction of legal and equitable institutions, in Quistclose those of contract of loan and express trust. The third was recently expressed as follows by Lady Arden in Prickly Bay Waterside Ltd v British American Insurance Company Ltd [105] . This is that “the term Quistclose trust may commonly be used whenever a person provides assets to another for the purpose of paying debts under arrangements which create a trust …” [106]

114. While the judgment of Lord Wilberforce was primarily directed to the second use referred to above, the co-existence and interaction of legal and equitable institutions, that interaction also involved a trust of the kind identified by Lady Arden.

115. Counsel for Quistclose Investments successfully submitted that the whole of the case against it was based on a “false premise … that a trust and a loan cannot co-exist.” [107] As noted above at [109] Lord Wilberforce said there was no difficulty in recognising “practical arrangements” involving the “flexible interplay of law and equity.” [108] He added that the Court should give effect to “the intention to create a secondary trust for the benefit of the lender, to arise if the primary trust, to pay the dividend, could not be carried out”. [109]

116. Thus there was no new species of trust here, the significance of the decision being a striking illustration of the interaction between an express trust and a contract of loan. No such interaction is in dispute in the present appeal. What is in dispute is the existence here of a trust of the kind identified in Prickly Bay .

Lord Wilberforce and Lord Millett

117. In Twinsectra Lord Millett said: [110]

“I do not think that subtle distinctions should be made between ‘true’ Quistclose trusts and trusts which are merely analogous to them. It depends on how widely or narrowly you choose to define the Quistclose trust. There is clearly a wide range of situations in which the parties enter into a commercial arrangement which permits one party to have a limited use of the other’s money for a stated purpose, is not free to apply it for any other purpose, and must return it if for any reason the purpose cannot be carried out. … All such arrangements should if possible be susceptible to the same analysis.”

However, in an article published in 1985 [111] Mr Peter Millett QC had argued that the beneficial interest remained throughout in the lender. Later, in Twinsectra [112] Lord Millett declared that the Quistclose trust was “an entirely orthodox example of the kind of default trust known as a resulting trust” where the “lender pays the money to the borrower by way of loan, but he does not part with the entire beneficial interest” and the money is “held on a resulting trust for the lender from the outset” subject to “the borrower’s power or duty to apply the money in accordance with the lender’s instructions”; if that “purpose fails, the money is returnable to the lender… because the resulting trust in his favour is no longer subject to any power … of the borrower to make use of the money.”

118. This emphasis upon a resulting trust is not the characterisation given by Lord Wilberforce to the facts before the House of Lords in Quistclose . The “primary trust” and “secondary trust” which his Lordship held to have existed were express rather than resulting trusts. As French CJ has noted, the term “trust” is used at a level of abstraction to distinguish express trusts from resulting or constructive trusts. [113] However, confusion may arise if the facts in a case do not involve the explicit use of the term “express trust”. This seems to have been the approach of the Court of Appeal in the present case in denying the existence of a Quistclose trust. But as explained at [110] and [145] that is not how the issue of intention to create an express trust is resolved.

119. In Twinsectra [114] Lord Millett said that there were “formidable difficulties” in the analysis by Lord Wilberforce in Quistclose . “What if the primary trust is not for identifiable persons, but … to carry out an abstract purpose?”  In the present case the “identifiable persons” were, as appears below at [130]-[132], the holders of a particular series of bonds which had matured. Lord Millett also referred to difficulties in the location of the beneficial interest. The answer Lord Wilberforce may have given is that if A transfers assets to B to hold as trustee for C and D, the “beneficial interest” follows the terms on which B becomes trustee.

Prickly Bay

120. It may be a fine question of construction to determine whether this is a resulting or express trust and it has been said that the categorisation may “rarely be significant.” [115] Indeed, in 2015 Lord Millett responded as follows to a student enquiry respecting his analysis in Twinsectra : “Terminology is the great trap in equity – there is often no single agreed meaning even of the commonest terms” (e.g. constructive trust)”, and he added that neither description of a Quistclose trust, as an express or a resulting trust, was “wrong”. [116]

121. Nevertheless, any apparent contradiction involved was resolved by the Privy Council in Prickly Bay . After considering various authorities, Lady Arden declared: [117]

“In the opinion of the Board, it follows from Lord Millett’s injunction that subtle distinctions should not be drawn between different species of trusts for the payment of creditors that the term Quistclose trust may commonly be used whenever a person provides assets to another for the purpose of paying debts under arrangements which create a trust (see per Lord Millett [in Twinsectra ] at paras 68 and 69). A Quistclose trust can take many forms. It may be express as to what is to happen on failure of the specified purpose, or express only as to that purpose, or it may simply be a resulting trust arising by operation of law: such is the flexibility of equity. That flexibility makes an important and beneficial contribution to the legal system of the jurisdiction in question because it enables equity to respond to the need for different sorts of transactions, and also because in that way it contributes to the development of society and to the growth of its economy.”

122. Her Ladyship went on to note that the development of Quistclose trust “has not been linear” and continued: [118]

“As explained, in Quistclose , Lord Wilberforce considered that there was a primary trust for the benefit of those who were to be paid and a secondary trust once the purpose failed or was exhausted in favour of the provider. But there followed an intense debate among scholars about the implications of this form of trust: for instance, it prevented the provider from enforcing the terms of the trust until the resulting trust arose. The debate was one of the beneficial ‘reflexive’ kind described by Professor Stapleton in which scholars identified ‘weaknesses, tensions, and anomalies in judicial reasoning, terminology, and doctrinal outcomes’ (J Stapleton, Three Essays on Torts (2021), p 18). It is now generally accepted that unless, or to the extent that there is no express trust as to what is to happen on failure of the specified purpose, there is a resulting trust for the provider throughout the period of the trust as explained by Lord Millett in Twinsectra. This avoids some of the difficulties identified by scholars and ensures that there is at all times a person who is in the position to enforce the trust.” (emphasis supplied)

123. Do the salient facts in the present litigation show a Quistclose trust in the sense described above?

The Facts

124. China Energy Reserve and Chemicals Group Company Limited (“the Parent”) is listed in Hong Kong. It heads a group of companies known as the China Energy Reserve and Chemicals Group (“the Group”), which develops natural gas, oil and related chemical products marketed throughout China.

125. Between 2015 and 2018 each of eight members of the Group, which are incorporated in the British Virgin Islands and may be identified as special purpose finance vehicles (“SPV”), issued a series of bonds to finance the operations of the Group. The SPVs had no other material operations or assets. Default on one series of bonds would trigger cross-defaults on the other series issued by the SPVs. The Parent guaranteed each bond issue.

126. The benefit of the covenants by the SPVs that the SPVs would pay principal and interest to bond holders was held on trust for the bond holders by Bank of Communications Trustee Ltd, (“the Trustee”), an Interested Party in the present litigation.

127. Another Group member, China Energy Reserve and Chemicals Trading Co Ltd (“Trading”) operated as “treasury subsidiary” of the Group. The funds raised from the issue by the SPVs of the bonds were transferred to a bank account of Trading which distributed them for operation of the business of the Group. When interest payments were due on a series of bonds Trading would remit to the designated bank the funds to make the payments.

128. This litigation stems from the issue of bond series by two of the SPVs, which may be identified as SPV1 and SPV2.

129. On 27 April 2015 SPV1 (China Energy Reserve and Chemicals Group Overseas Co Ltd), the first appellant, issued a series of bonds to mature in 2022 and denominated in HKD (“the 2022 Bonds”). The respondent, China Life Trustees Ltd (“China Life”) holds all the 2022 Bonds. SPV1 opened an account (“the Account”) with Bank of Communications (Hong Kong) Ltd (“the Bank”) as payment agent for the 2022 Bonds. A point of significance for this appeal is that the Account included a US$ sub-account for which SPV1 would have no use.

130. Then on 11 May 2015, SPV2 (China Energy Reserve and Chemicals Groups Overseas Capital Co Ltd) issued a series of bonds denominated in US$ which were to mature on 11 May 2018 (“the 2018 Bonds”). This series would be the first series to mature. The investors in the 2018 Bonds included the second appellant, the Ad Hoc Committee, comprising CMB Wing Lung Bank Ltd and The Export-Import Bank of China.

131. SPV2 did not open a bank account. Rather, “for convenience” it designated the Account, which included the US$ sub-account, for transactions relating to the 2018 Bonds. The US$ sub-account was a segregated account not used for the purposes of SPV1; SPV2 was authorised as a joint signatory to give instructions relating to the sub-account.

132. Thus, the Bank was paying agent for the 2018 Bonds issued by SPV2 as well as for the 2022 Bonds issued by SPV1. Up to May 2018 the half yearly interest payments on both bonds series were paid from the Account.

133. However, on 11 May 2018, the 2018 Bonds matured, the first series to do so, but the Group did not have the funds to pay the due principal and interest.

134. On 16 May 2018 the Trustee, with respect to the 2018 Bonds, published a notice to bondholders in which it referred to the default and indicated that the issuer expected to make full payment of principal and any outstanding interest “on or around” 25 May 2018.

135. Between 17-22 May 2018 there was correspondence between Dr He Xuanlai of China Life Franklin Asset Management Co Ltd, the investment manager of China Life, and Mr Norman Lin of the Group. The Group responded with a plan forthwith to apply US$350 million for repayment of the 2018 Bonds and so arrest the adverse impact on the market confidence in the Group.

136. This was partly implemented as follows. On 8 May 2018 the eighth and last series of Bonds had been issued by China Energy Reserve and Chemicals Group Capital Ltd. The Offering Circular stated that the bond proceeds of US$150 million would be used for the “general corporate purposes” of the Group. The proceeds were paid into the bank account of Trading and “booked” as a loan to Trading.

137. From its bank account Trading remitted to the Account a total of US$120 million. This was booked in the account ledger of SPV1 as a specific entry indicating it did not form part of the general assets of SPV1. But there was still outstanding US$230 million to arrive at the total of US$350 million needed to repay the 2018 Bonds. The Group was unable to procure the transfer of that US$230 million.

138. Thus the Group’s plan failed. On 25 May the Parent and SPV2 declared default in the 2018 Bonds and cross defaults on the other bonds ensued.

139. The US$120 million with interest earned on it (“the Funds”) stayed in the Account with the Bank. On 9 March 2021, the Trustee obtained a garnishee order nisi in respect of the Funds, being the balances in the Account representing the US$120 million plus US$3 million being interest accrued thereon. SPV1 applied to set aside the garnishee order. China Life was substituted as plaintiff in place of the Trustee. If the Funds were impressed with a Quistclose trust in favour of Trading they could not be garnisheed by China Life. However, on 10 August 2023, the Court of Appeal made the garnishee order absolute. In this Court China Life, the respondent, would have that order upheld, while the appellants would have it set aside.

The Issues

140. The essential dispute the subject of this appeal is whether (a) as the respondent China Life contends, the Funds belong to SPV1, in whose name the Account stands, or (b) as the appellants contend, the Funds are held on trust for and belong to Trading which had remitted the US$120 million to the Account. If the latter, the Funds would be available to the Parent for restructuring of the Group. If the former, China Life, the holder of the 2022 Bonds, would benefit exclusively.

141. At first instance it was held that the Funds belonged to SPV1 and there was no trust. The Court of Appeal dismissed the appeal [119] .

142. On 27 October 2023 the Court of Appeal granted leave to appeal to this Court and certified two questions (a) and (b) as being of great general or public importance.

143. Question (a) raised “the proper approach to assessing the issue of intention giving rise to a Quistclose trust”; in particular, (i) “whether the important intention is an intention for the transferor to retain some control of and/or beneficial interest in the assets qua transferor” or (ii) “an intention for the transferee not to have free disposal and/or the whole beneficial interest in the assets.”

144. The Court of Appeal appears to have required evidence of a positive statement in the nature of (i) above, which it did not find and it thus denied the existence of a trust.

145. However, the general proposition as to the intention to create an express trust asks whether there is language or conduct showing a sufficiently clear intention to create the trust. No formal or technical words are required and the conclusion may be drawn as an inference from the nature of the transaction and the available evidence as to the whole of the circumstances including (importantly for the present appeal) commercial necessity. [120] This reflects the principle that the presence of the intention is assessed objectively rather than subjectively. [121]

146. In Twinsectra Lord Millett referred to “the intention of the parties collected from the terms of the arrangement and the circumstances of the case.” [122] In Prickly Bay the Privy Council, with reference to Lord Millett’s judgment in Twinsectra [123] , indicated that the intention of the parties need not be “mutual” in the sense of being “shared or reciprocated”, it being sufficient “if one party imposed it on the other who acquiesced in it”. [124] This reference to the sufficiency of “imposition” has been criticised. [125]

147. The essence of a Quistclose trust involves the restricted purpose for which the money may be applied. However, as was emphasised in Re Australian Elizabethan Theatre Trust “[the] use of the expression ‘purpose’ should not be read as heralding a new era for the non-charitable purpose trust”. [126] The relevant purpose was the product of the payer’s intention, acquiesced in by the payee in accepting payment, and not an incident of some unknown type of trust.

148. In answering Question (a), the court examines the evidence asking whether it establishes that A paid money to B, with the intention accepted or acquiesced in by B, that it was to be applied only for a specific purpose. If so, it follows as a matter of logic that the money was not intended to form part of B’s general assets or to be at B’s free disposal. The authorities elucidate the legal effect or consequences of a finding that such an arrangement exists: the recipient comes under a fiduciary duty to adhere to the restriction and equity will restrain him or her from applying the money for some other purpose. And to the extent that the specific purpose fails, the recipient holds the money on trust to return it to the payer. It follows that the money is never beneficially owned by the recipient and, on an insolvency, does not form part of the bankrupt estate and so is recoverable by the payer.

149. Question (b) certified by the Court of Appeal fixed upon the significance of “an intra-group transfer”; does the fact or potential of common control being exercised over both transferor and transferee as members of the Group indicate an absence of “any intention for the transferee not to have free disposal and the whole beneficial interest in the assets.”  The second question may be adjusted by asking whether the potential for common control militates against a finding on the evidence that there is to be attributed to Trading an intention that the transferee hold the funds on trust.

150. This reflects the view expressed in [69] of the Court of Appeal judgment that:

“Any desired control could be effected through the corporate chain of command. Since the Group was in full control of [SPV1], there was no need to preserve control through the retention by Trading of beneficial interest in the money as against [SPV1]… To speak of Trading placing ‘trust and confidence’ in [SPV1] to ensure that the money was applied for the purpose for which it was transferred, thereby occasioning the intervention of equity, seems to me to be unreal.”

151. However, the appellants stress that this case is far from a typical intra-group transaction. SPV1 had not used the USD sub-account; rather it had been used by SPV2 which had designated to the Bank the sub-account for transactions relating to the 2018 Bonds. There was a sense of urgency as the 2018 Bonds matured on 11 May 2018 but the Group did not have the funds to pay the due principal and interest.

152. The plan of the Group to meet the crisis involved Trading transferring a total of US$120 million, but the plan failed and on 25 May SPV2 and the Parent declared default.

153. To hold that the Funds in the Account, US$120 million plus interest, were beneficially owned by China Life and liable to the garnishee, would be contrary to the nature of the transaction between Trading and SPV2 and the available evidence as to the whole of the circumstances. The trust having failed the Funds reverted to Trading.

154. It is because of that state of affairs that the appeals to this Court should be allowed and the garnishee order dated 10 August 2023 should be discharged. Within 14 days of the date of this judgment the parties may lodge written submissions as to costs; these will be dealt with by the Court on the papers.

[emphasis added]

[83] [1970] AC 567.

[84] ss 2 and 3, Cap 128.

[85] (1956) 40 HKLR 250.

[86] Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 at [120].

[87] Professor of English Private Law at the University of Oxford.

[88] [1993] AC 70.

[89] Robert Stevens, The Laws of Restitution (Oxford University Press, 2023) at 98.

[90] Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 at 704.

[91] [2002] 2 AC 164 at [73].

[92] [2019] EWCA Civ 294 at [81].

[93] Roberts Stevens, “Rolls Razor Ltd” in William Swadling (ed), The Quistclose Trust: Critical Essays (Hart Publishing, 2004) at 1-7

[94] [1970] AC 567 at 580.

[95] Jamie A Glister “The nature of Quistclose trusts: classification and reconciliation” (2004) 63(3) Cambridge Law Journal 632, at fn 15; Robert Stevens, “Insolvency” in William Swadling (ed), The Quistclose Trust: Critical Essays (Hart Publishing, 2004) at 157-165. In Hong Kong, Companies (Winding Up and Miscellaneous Provisions) Ordinance, s.266, Cap. 32.

[96] [1970] AC 567 at 581-582.

[97] Gosper v Sawyer (1985) 160 CLR 548 at 568-569.

[98] In re Rogers, Ex parte Holland and Hannen (1891) 8 Morr 243, cited in Quistclose at 581 (italics supplied).

[99] [1970] AC 567 at 582.

[100] (2013) 249 CLR 493 at [112].

[101] (1991) 30 FCR 491 at 503.

[102] [2002] 2 AC 164 at [80]-[81], [100].

[103] Foreword to the collection of essays referred to above in footnote 93.

[104] [2012] NSWCA 135 at [51].

[105] [2022] UKPC 8, [2022]1 WLR 2087, [2022] 2 All ER (Comm) 189.

[106] [2022] UKPC 8 at [32].

[107] [1970] AC 567 at 573.

[108] [1970] AC 567 at 581-582.

[109] [1970] AC 567 at 582.

[110] [2002] 2 AC 164 at [99].

[111] Peter J Millett, “The Quistclose Trust: Who Can Enforce It?” (1985) 101 Law Quarterly Review 269.

[112] [2002] 2 AC 164 at [100].

[113] Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 at [5].

[114] [2002] 2 AC 164 at [79].

[115] John McGhee QC and Steven Elliott QC (eds), Snell’s Equity (34 th Ed, Sweet & Maxwell, 2020), §25-036, contributed by Professor David Fox.

[116] The Hon William Gummow, “Lord Millett in Hong Kong” (2021) 51 Hong Kong Law Journal 845 at 852.

[117] [2022] UKPC 8 at [32].

[118] [2022] UKPC 8 at [33].

[119] [2023] HKCA 966 .

[120] Swain v The Law Society [1983] 1 AC 598 at 621-622, per Lord Brightman; Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 618-619 per Mason CJ, Dawson J; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 121, per Mason CJ, Wilson J.

[121] John McGhee QC and Steven Elliott QC (eds), Snell’s Equity (34 th Ed, Sweet and Maxwell, 2020), §22-013, contributed by Professor David Fox.

[122] [2002] 2 AC 164 at [69].

[123] [2002] 2 AC 164 at [76].

[124] [2022] UKPC 8 at [31].

[125] Ada Leung and Samuel Leung, “Whither Quistclose trusts? A non-linear development of the doctrine” (2023) 29(2) Trusts & Trustees 158 at 166-167.

[126] (1991) 30 FCR 491 at 502.