University of Hong Kong
Department of Law
JD Equity & Trusts 2022 – 2023
JDOC 2001 and 2002
May 2023 Examination
Examiner’s Report
Students’ performance were generally satisfactory.
Question 1
Some students attempted to offer concepts such as fairness or unconsionability as the
single normative idea that underlined equity, although little details of the same were
discussed. Some students thought topics such as resulting / constructive trust were
related to equity’s aim to “get as close as possible to specific performance”, while
better students were able to focus their answer on compensatory damages.
Question 2
This is the most popular of the three essay questions. Many students are able to
engage with the first quote by Lord Hoffmann by pointing out some of the differences
between the mentioned common law actions on the one hand and dishonest assistance
/ knowing receipt on the other, while better students attempted to justify the
differences by reference to the nature of these actions. Students’ performance were
more varied with respect to the quote from Lord Millett’s judgment in Twinsectra.
Some students surprisingly thought that the higher standards of equity somewhat
justified the higher threshold for liability for dishonest assistance as compared to the
common law action for inducing the breach of contract.
Question 3
Many students correctly identified the starting point that Bristol v Mothew defined
fiduciary duties as the duty of loyalty. Weaker students focused on the operation of
no-conflict rule and no-profit rule, while better students were able to point to duties
excluded by the Mothew definition and consider if these other duties should
nevertheless be considered as fiduciary duties. Students were generally less
confident with the second part of the quote as to whether fiduciary duties were default
duties imposed by equity or, as Edelman contended, that fiduciary duties were express
or implied duties undertaken by the fiduciary.
Question 4
This problem-question is more popular with students. Many students were eager to
deal with the factual aspects of the question in relation to the possible solicitation of
employees and diversion of business opportunities, albeit often with brief explanation
of the legal principles and varying degrees of analysis of the given facts. Despite the
lack of reference to any specific trust terms in the question, many students thought the
trustee was in breach of the terms of the trust with respect to the improper storage of
paintings; some students also treated this as a Type 1 case of equitable compensation.
Question 5
Many students correctly identified the need to establish a proprietary base for the
secret commission in order to trace the same into the bank accounts, although some
analysis of the relevant legal principles were brief. Many students did not identify
the issue of backward tracing with respect to the first account and failed to distinguish
the position between the two bottles of whisky. Some students mistakenly treated
the purchase of FTZ shares as a Type 3 case for the purpose of equitable
compensation.
Question 6
Some students did not consider the position of the purchasers with respect to the
payments they made and hence the mixing of these payments in the account. Some
students ignored the fact that X was bankrupt and discussed personal remedies against
him at some length without considering the possibility of proprietary remedies.
Ken Lee
May 2023
