The Quistclose Doctrine: Resurrection of the Primary Trust?

Abstract

It is not uncommon for trusts cases decided in Commonwealth jurisdictions to affect the general development of the law of trusts. While as a matter of comparative law the jurisprudence of Malaysian courts has seldom received much attention, the recent decision in PECD Berhad (In Liquidation) v AmTrustee Berhad served as an occasion for the highest court in Malaysia to consider the Quistclose doctrine. Unusually, this case followed and applied the primary-secondary trust analysis of Lord Wilberforce in Barclays Bank Ltd v Quistclose Investments Ltd as the proper legal basis of the Quistclose trust in Malaysia. A careful inspection, however, reveals that the Federal Court’s decision reflects a ..