In an unusual step, the Appeal Committee of the Court of Final Appeal has, of its own motion, granted leave to appeal on the following question of law in 

Anz Commodity Trading Pty Ltd v Excellence Raise Overseas Ltd & Ors

‘Where two innocent parties enter into a contract induced by the fraudsters’ fraudulent misrepresentations, under which one party pays money to the other, and that money is then transferred to the fraudsters pursuant to purported back-to-back contracts forming part of the fraudulent scheme and ultimately ends up with volunteers unconnected to the fraud, does the law – whether of deceit, property, unjust enrichment, or otherwise – recognise or impose a constructive trust in favour of the original payer over the money at any stage of its passage – including its ultimate receipt by the volunteers – such that it must be returned to the original payer? If so, who (if anyone) are the constructive trustees? If a constructive trust arises, is it institutional or remedial? Is rescission of the contract between the original payer and the counterparty for fraud necessary for the return of the money and/or for the recognition or imposition of a constructive trust? If rescission is required, does the timing of rescission affect whether the money can be recovered or a constructive trust recognised or imposed?’

In granting leave, Cheung CJ noted that the trial judge had imposed constructive trusts in the context of fraudulent misrepresentation, but that there were ‘

several possible ways of understanding the legal bases

’ on which those trusts were declared, and the judgments below were not entirely free of ambiguity. The Chief Justice therefore considered that the declarations of trust raised questions of great general or public importance.

Leave was also granted on two further issues raised by the Applicants: (1) whether rescission for fraud requires notifying the counterparty or whether a clear indication to third parties suffices, and (2) whether, in back‑to‑back commodity contracts involving innocent head‑contract parties, the 

 exception applies so the head contract may be treated as an instrument of fraud without rescission.

The appeal will be heard on 2 September 2026.

 (who did not appear below), Kenny Lin and Jason Kung acted for the Applicants.

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Court of Final Appeal grants leave on own motion to consider question on constructive trusts, rescission and proprietary restitution

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