Resulting or common intention constructive trust

In Lui Kam Lau v Lui Hon Yiu ([1992] HKEC 8) title to property was in the name of N. She had paid about half of the price and D had paid the other half. He had not intended his contributions to be a gift. N and D had gone through a form of marriage ceremony but were not legally married. N died and the question of beneficial entitlements had to be resolved. The court’s analysis was principally that of resulting trust and it held that D was entitled to 50% of the beneficial ownership on the basis of his contributions. The judge started his analysis by saying that this was a resulting trust case rather than a constructive trust case. Nevertheless, he referred to the Gissing v Gissing line of authorities to the effect that mortgage contributions could be evidence from which to infer a common intention constructive trust. It is possible to argue that the court was simply pointing to the strong similarities between the two types of trust in this context. Unfortunately, the line is blurred where the judge says:

‘The key to the resolution of disputes such as the present one is therefore to identify the common intention of the parties by reference to the evidence.’

The latter part of the analysis seems to be principally that of constructive trust despite the fact that the court had decided that this was a resulting trust case.

Michael Lower


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