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

In a previous article published in 2018, the authors had attempted to highlight the issues that will present themselves when a constructive trust is imposed without clear guiding principles pursuant to recent judicial pronouncements on point. Whilst the doctrine of constructive trusts in Malaysia has been accepted as a ‘remedial device’, there has been little debate on the effects of such a constructive trust on the parties in the claim as well as other parties outside the claim. There is much debate in other commonwealth jurisdictions on these but the Malaysian Courts are yet to catch up with this debate. The primary contribution of this paper is to provide some clarity on the effects of the imposition of constructive trust as a remedial device in Malaysia, some of which could have far reaching implications. This article will attempt to identify and provide some guidance from other commonwealth countries for the Malaysian courts to use as a yardstick when deciding on the imposition of proprietary remedies pursuant to constructive trust.