Proprietary Estoppel

Question 1

Analysis: Can the original representor revoke the estoppel license?

Answer 1

A license coupled with equity is irrevocable and binding on a third-party with notice. Generally, it cannot be forfeited even for the licensee’s subsequent bad conduct. However, Lord Denning’s dicta in William v Staite suggests that an estoppel license could be revoked if the licensee’s conduct was “bad in the extreme” and he made life “intolerable” for the owner. On the facts…

Question 2

Analysis: Is the estoppel license binding on the (third party)?

Answer 2

While a license coupled with equity is irrevocable and binding on a third-party with notice at common law (William v Staite), s 47(1)(c) states that any prospective purchaser will be unaffected by notice of any unregistered interest. Thus, unless the licensee had filed a caveat, the purchaser will not be bound by the estoppel license.

Question 3

Analysis: Can (representee) rely on proprietary estoppel (PE) to stop (representor) from insisting on his strict legal rights? (implied representation)

Answer 3

Given that the (implied representor) had said nothing while (representee) acted on the (3P’s representation / 3P contract) to his detriment, another issue is whether the (implied representor) will be estopped from denying the (3P’s representation / what was said in the contract with the 3P).

(FIRST, representation, reliance and detriment)

(Representation)

(Representor’s) silence may give rise to an implied representation when there were circumstances that made it the (representor’s) duty to speak up but the (representor) failed to do so (Hong Leong v UOB)
(This is satisfied on the facts because (implied representor) knew of (3P’s representation / 3P’s contract) yet took no steps to assert its true position. In the circumstances, (representor’s) silence was unequivocally a form of encouragement / endorsement of the (3P’s representation / 3P’s contract). This is supported by the fact that… )
(This is not satisfied on the facts because even though (implied representor) knew of (3P’s representation / 3P’s contract), (representor’s) silence in this situation was equivocal and cannot be seen as an unequivocal endorsement of the arrangement. This is because…. )
(Note: there may not always be a third-party)

Second, (Representor) must also be aware that (representee) was doing the thing the former is said to have acquiesced in (Hong Leong v UOB). This is satisfied / also not satisfied on the facts because…

Therefore, it can be said that (implied representor) had acquiesced in the (3P’s representation / arrangement in the contract) and will thus be deemed to have made an implied representation.

Finally, the implied representation should still relate to specific property and be sufficiently clear (Lissimore v Downing, Thorner v Major). On the facts…

(Detriment)

Secondly, there must be detriment. Detriment need not consist of an expenditure of money or some other quantifiable financial cost, as long as it is substantial (Gillet v Holt). A detriment is substantial if it would be unconscionable not to estop (representor) (Gillet v Holt).

On the facts, the detriment is… (on the facts) since it is the detriment that would flow if the (representor) is allowed to resile from his representation (Gillet v Holt).

(A reference can be made to Greasley v Cooke, where the court held that caregiving for an invalid family member was sufficient detriment).

(A reference can be made to Gillet v Holt, when the court found substantial detriment because the representee had given up formal schooling and his social life in devotion to working for the representor)

(A reference can be made to Lissimore v Downing, where the court did not find substantial detriment as the representee had only given up a job, and not a career)

(A reference can be made to Lissimore v Downing, where the court did not find substantial detriment as undertaking works on the property was an ordinary aspect of the romantic relationship the representee shared with the representor)

(A reference can be made to Coombes v Smith, where the court did not find substantial detriment as the representee’s pregnancy was seen as an ordinary part of the romantic relationship she had with the representor)

(A reference can be made to Coombes v Smith, where the court did not find the act of looking after her daughter as as a detriment as it was seen as an ordinary part of being the representor’s mistress and the daughter’s mother)

(A reference can be made to Coombes v Smith, where the court did not find the act of leaving her husband as a substantial detriment because the representee was already unhappy with her marriage)

(Reliance)

Finally, there must be reliance. Reliance must be an effective cause, and need not be the sole cause. It only needs to be shown that the representee’s conduct was “influenced” by the encouragement or representation (Hong Leong v UOB)

Since (representee) can likely establish the representation and the (representee’s) change of position ‘is capable of causal relation from it’, courts will likely adopt a presumption of reliance, and place the evidential burden on the representor to disprove the reliance (Greasley v Cooke, endorsed in Hong Leong v UOB). On the facts, it is likely / unlikely that (representor) can disprove the reliance…

(There is likely reliance as the plaintiff was acting against his own immediate interests)

(Given the large time-gap between the time of the representation and the reliance, the court will lean towards finding no reliance (UOB v Bank of China).)

(SECOND, protecting the inchoate equity)

Assuming that the 3 elements of PE are met, (representee) will have an inchoate equity.

FIrst, pending the court’s crystallisation of the equity, (representee) would want to obtain an injunction from court to protect his claim, and then lodge a caveat under s 115(3)(b) LTA to ensure that (representor) does not deal with the property adversely to his claim.

Second, even if (representee) is unable to obtain an injunction, she may want to file a caveat anyway. In light of Ho Soo Fong, a caveator will not be held liable for the s 128 statutory tort if she has an honest belief based on reasonable grounds that she has an interest in the property to support the entry of a caveat.

Third, academic Teo Keang Sood suggests that a mere inchoate equity would come under s 95(2) and the representee would be deemed to have an interest in land that is caveatable under s 115(1) LTA.

(THIRD, satisfying the inchoate equity)

The possible remedies here are for (1) the transfer of the property outright (2) a license to stay for life (3) for equitable compensation or (4) for (representee) to get the property but with a license for (representee) to stay for life (5) … (6) …
(However, considering the need to give both parties a clean break (Pascoe v Turner), the court will likely give… )

Assuming that (representee) wants an equitable compensation in damages, (representee) could elect for either expectation or reliance losses but cannot claim for both (Andy Low). To calculate the appropriate compensation, the court will likely apply the two-step method in Andy Low,

First, the court will calculate the full extent of (representee’s) equity by multiplying a suitable base rental by a suitable term of years. The rental sum should be based on… because… The term of years should be a reasonable term of years based on…. because…

Next, after the court has satisfied the full extent of (representee’s) equity, it will apply any discount to achieve proportionality between the remedy, the expectation and detriment.

The court will consider the detriment that was suffered…

The court will also consider the parties’ respective financial positions (Sledmore v Darby). On the facts…

The court will also consider countervailing benefits that arose as a direct result of the reliance on the representation (Sledmore v Darby, Andy Low)-

The court may also apply the element of acceleration and make appropriate deductions to account for the time-value of money if (representee) is getting the remedy earlier than when his expectation would have fallen due (Gillet v Holt).

(FOURTH, protecting the crystallised equity)

Assuming that (representee) is entitled to a license coupled with equity, Since it is not entirely clear if such licenses would fall under s 95(2) LTA today (TSY), I would recommend her to clarify with the court whether the license would be binding on the assigns of the licensor. If it is so, the licensee should rely on s 95(2), which deems her to have an interest in land, to file a caveat under s 115(1) LTA.

Otherwise, any potential 3rd-party purchasers will not be bound by her estoppel license, even if they had notice of it (s 47(1)(c) LTA).

Question 4

Analysis: Can (representee) rely on proprietary estoppel (PE) to stop (representor) from insisting on his strict legal rights? (express representation)

Answer 4

Given (representation), (representee) would want to rely on proprietary estoppel (PE) to stop (representor) from insisting on his strict legal rights.

(FIRST, representation, reliance and detriment)

To establish proprietary estoppel, there must be a representation, reliance and detriment, and these 3 factors must be analysed with unconscionability as the overarching theme (Hong Leong v UOB).

(Representation)

Firstly, there must be a valid representation.
(Even though the representation here was not directly made to (representee) but indirectly made through (intermediary), the court in Hong Leong v UOB has held that representations can be made through an intermediary)

To constitute a valid representation, the representation must relate to specific property or some part of the property that is objectively ascertainable (Lissimore v Downing).
(On the facts, even though the exact boundaries of the property were liable to fluctuate from time to time, the “property” as it stood at (a certain event) is likely to be seen as sufficiently definite property (Thorner v Major).

The representation must also be sufficiently clear in the context of the parties’ relationship (Thorner v Major). On the facts, (representation) was unambiguous and (representee) had reasonably understood the statement to be an assurance he could rely on. This is evident from…
(An reference can be made to Thorner v Major, where the representations made consistently over a long period of time was seen as sufficiently clear in the context of the parties’ long relationship. Similar here, in the context of the relationship between… )
(A reference can be made to Humphreys Estate, where it was clear to both parties that the informal agreement was only one ‘in principle’ and thus not something that could be strictly relied on until a formal contract was drawn)

Finally, the representation must also be a promise which one might reasonably expect to be relied upon by the person to whom it was made (Thorner v Major at [56])

(Detriment)

Secondly, there must be detriment. Detriment need not consist of an expenditure of money or some other quantifiable financial cost, as long as it is substantial (Gillet v Holt). A detriment is substantial if it would be unconscionable not to estop (representor) (Gillet v Holt).

On the facts, the detriment is… (on the facts) since it is the detriment that would flow if the (representor) is allowed to resile from his representation (Gillet v Holt).

(A reference can be made to Greasley v Cooke, where the court held that caregiving for an invalid family member was sufficient detriment).

(A reference can be made to Gillet v Holt, when the court found substantial detriment because the representee had given up formal schooling and his social life in devotion to working for the representor)

(A reference can be made to Lissimore v Downing, where the court did not find substantial detriment as the representee had only given up a job, and not a career)

(A reference can be made to Lissimore v Downing, where the court did not find substantial detriment as undertaking works on the property was an ordinary aspect of the romantic relationship the representee shared with the representor)

(A reference can be made to Coombes v Smith, where the court did not find substantial detriment as the representee’s pregnancy was seen as an ordinary part of the romantic relationship she had with the representor)

(A reference can be made to Coombes v Smith, where the court did not find the act of looking after her daughter as as a detriment as it was seen as an ordinary part of being the representor’s mistress and the daughter’s mother)

(A reference can be made to Coombes v Smith, where the court did not find the act of leaving her husband as a substantial detriment because the representee was already unhappy with her marriage)

(Reliance)

Finally, there must be reliance. Reliance must be an effective cause, and need not be the sole cause. It only needs to be shown that the representee’s conduct was “influenced” by the encouragement or representation (Hong Leong v UOB)

Since (representee) can likely establish the representation and the (representee’s) change of position ‘is capable of causal relation from it’, courts will likely adopt a presumption of reliance, and place the evidential burden on the representor to disprove the reliance (Greasley v Cooke, endorsed in Hong Leong v UOB). On the facts, it is likely / unlikely that (representor) can disprove the reliance…

(There is likely reliance as the plaintiff was acting against his own immediate interests)

(Given the large time-gap between the time of the representation and the reliance, the court will lean towards finding no reliance (UOB v Bank of China).)

(SECOND, protecting the inchoate equity)

Assuming that the 3 elements of PE are met, (representee) will have an inchoate equity.

FIrst, pending the court’s crystallisation of the equity, (representee) would want to obtain an injunction from court to protect his claim, and then lodge a caveat under s 115(3)(b) LTA to ensure that (representor) does not deal with the property adversely to his claim.

Second, even if (representee) is unable to obtain an injunction, she may want to file a caveat anyway. In light of Ho Soo Fong, a caveator will not be held liable for the s 128 statutory tort if she has an honest belief based on reasonable grounds that she has an interest in the property to support the entry of a caveat.

Third, academic Teo Keang Sood suggests that a mere inchoate equity would come under s 95(2) and the representee would be deemed to have an interest in land that is caveatable under s 115(1) LTA.

(THIRD, satisfying the inchoate equity)

The possible remedies here are for (1) the transfer of the property outright (2) a license to stay for life (3) for equitable compensation or (4) for (representee) to get the property but with a license for (representee) to stay for life (5) … (6) …
(However, considering the need to give both parties a clean break (Pascoe v Turner), the court will likely give… )

Assuming that (representee) wants an equitable compensation in damages, (representee) could elect for either expectation or reliance losses but cannot claim for both (Andy Low). To calculate the appropriate compensation, the court will likely apply the two-step method in Andy Low,

First, the court will calculate the full extent of (representee’s) equity by multiplying a suitable base rental by a suitable term of years. The rental sum should be based on… because… The term of years should be a reasonable term of years based on…. because…

Next, after the court has satisfied the full extent of (representee’s) equity, it will apply any discount to achieve proportionality between the remedy, the expectation and detriment.

The court will consider the detriment that was suffered…

The court will also consider the parties’ respective financial positions (Sledmore v Darby). On the facts…

The court will also consider countervailing benefits that arose as a direct result of the reliance on the representation (Sledmore v Darby, Andy Low)-

The court may also apply the element of acceleration and make appropriate deductions to account for the time-value of money if (representee) is getting the remedy earlier than when his expectation would have fallen due (Gillet v Holt).

(FOURTH, protecting the crystallised equity)

Assuming that (representee) is entitled to a license coupled with equity, Since it is not entirely clear if such licenses would fall under s 95(2) LTA today (TSY), I would recommend her to clarify with the court whether the license would be binding on the assigns of the licensor. If it is so, the licensee should rely on s 95(2), which deems her to have an interest in land, to file a caveat under s 115(1) LTA.

Otherwise, any potential 3rd-party purchasers will not be bound by her estoppel license, even if they had notice of it (s 47(1)(c) LTA).

Question 5

What are the 3 broad (but not entirely distinct) categories of cases involving proprietary estoppel?

Answer 5

1. Imperfect gift (Pascoe)
2. Common expectation case (Inwards v Baker)
3. Unilateral mistake case (Ramsden)

Question 6

What are the 3 types of representations found in cases involving proprietary estoppel?

Answer 6

Representations of existing facts (Pascoe)

Promises (Thorner)

Acquiescence (Hong Leong)

Question 7

What is an imperfect gift-type case?

Answer 7

In such a case, A makes a overt representation that B is entitled to some interest in A’s property.

While equity will normally not perfect a gift, it will do so if the requirements for PE are satisfied.

Cases include Pascoe v Turner and Greasley v Cooke

Question 8

What is a common expectation-type case?

Answer 8

Cases where A may not have explicitly said that he was giving B some interest in the property, but A and B have consistently dealt with each other in a way as to reasonably cause B to believe that A would give him some interest in the land.

Gray & Gray says that in such cases, the element of reliance becomes especially more important.

Cases include Gillet v Holt, Turner v Major

Question 9

Analysis for representation of existing facts / promise

Answer 9

1. The assurance must relate to some identifiable, specific property, or to some part of the representor’s property that is objectively ascertainable (Thorner)
2. The assurance must be sufficiently clear i.e The assurance must be unambiguous and must be intended to be taken seriously in its context. The test is objective (Thorner)
3. It was reasonable for the representee to expect that she could rely on the assurance (this overlaps with the second aspect)

Question 10

Analysis for implied representation (acquiescence)

Answer 10

1. Silence was maintained in circumstances when the party ought to have spoken (i.e a duty to speak) (Hong Leong)
2. The party sought to be estopped was aware that the innocent party was ‘doing the thing’ which the former is said to have acquiesced in (Hong Leong)
3. The assurance must relate to some identifiable, specific property, or to some part of the representor’s property that is objectively ascertainable (Thorner)
4. The assurance must be sufficiently clear i.e The assurance must be unambiguous and must be intended to be taken seriously in its context. The test is objective (Thorner)

Question 11

When is a representation sufficiently clear?

Answer 11

The assurance must be unambiguous and must be intended to be taken seriously in its context. The test is objective (Thorner)

(Thorner [56])

Question 12

Case law examples of a representation being sufficiently clear

Answer 12

In Thorner v Major, Peter would point out to David little things about the farm which would only be of relevance to someone who was to have a continuing long-term involvement with the farm.

Peter also gave David bonus notice of his life insurance policy and told him, “That’s for my death duties”.

David was known to be reticent and was not a man of words.

Taken together, the EWCA held that these assurances were sufficiently clear because the representations were meant to be taken seriously in the context of Peter’s and David’s relationship.

(Note: This does overlap with the ‘reasonable reliance’ aspect)

Question 13

What are case law examples of representations of existing fact?

Answer 13

The ex-lover said on several occasions that ‘the house is yours and everything in it’

Thus she thought the house and everything in it was already hers.
(Pascoe v Turner)

Kenneth and his sister assured Cooke (quasi-wife) that she could stay at the house as long as she wished without paying rent
(Greasley v Cooke)

Question 14

What are case law examples of promises?

Answer 14

In Thorner v Major, Peter would point out to David little things about the farm which would only be of relevance to someone who was to have a continuing long-term involvement with the farm.

Peter also gave David bonus notice of his life insurance policy and told him, “That’s for my death duties”.

David was known to be reticent and was not a man of words.

Taken together, the EWCA held that these assurances were sufficiently clear because the representations were meant to be taken seriously in the context of Peter’s and David’s relationship.

(Thorner v Major)

Question 15

When are revocable promises considered valid representations for the purpose of proprietary estoppel?

Answer 15

1. Where an (1) ‘agreement in principle’ for the sale of land is involved and (2) both parties knew that there was no binding agreement between them, it is unlikely that a claim in PE can arise. There are two basis for this:

First, the claim will fail on the lack of a valid representation, since neither party had made a representation that was objectively intended to be relied upon by the other party.

Second, the claim could be said to fail because it is not unconscionable for the other party to resile from an arrangement that both parties knew was not binding.

In such scenarios, the other party may have acted to his detriment in the mere ‘hope’ that an agreement would come true, but this is insufficient to give rise to an equity. (Humphrey Estates, Cobbe).

(Humphrey Estates)
There was evidence showing that HK government (representee) knew at all times that there was no binding contract between them and HKL because the documents exchanged between both parties consistently maintained that position.

Thus, the claim for PE failed because HKL had not created a representation that was objectively intended to be relied on by the HK government.

(Cobbe)
Mr. Cobbe as an experienced property developer knew that the oral “agreement in principle” for the sale of land was rescindable. Though the ‘subject to contract’ line in Humphrey Estates was missing here, the HL said it was not strictly required as both commercial parties should have known that there was no legally binding contract.

Again, claim for PE failed here because the defendant had not create any assurance that was objectively intended to be relied upon by Mr. Cobbe. On the contrary, Mr. Cobbe proceeded knowing full well of the risk that the other party would resile from the arrangement.

2. Where testamentary dispositions are concerned, the courts have more frequently given effect to a claim in PE.

This is because of the context in cases like Thorner v Major and Gillet v Holt, which both involved very long-term relationships between two parties. In those circumstances, they court found that the representor’s assurances were unambiguous and were meant to be taken seriously.

In those two cases, there were also exceptionally strong claims on the representor’s conscience which could not be disclaimed after many years of devotion and unpaid labour.

(Gillet v Holt)
Here, given the very long-term relationship between both parties (30 years), and the consistent representations that were made over a long period of time, the EWCA found that Holt’s representations (that Gillet would inherit the farming business) were meant to be taken seriously in the context.

Even though testamentary dispositions were inherently revocable, Gillet’s detrimental reliance had made Holt’s representations binding.

(Thorner)
Here again, given the long-term relationship between both parties (29 years) and the consistent representations that were made during that period of time that David would inherit Peter’s farm, the HL was satisfied that Peter’s representations were meant to be taken seriously in the context.

Question 16

Letchimy v Maha Devi

Answer 16

Proposition 1:
To make out a claim in proprietary estoppel, it is not necessary for the representor to have intended for the representations to be acted upon

Question 17

Lissimore v Downing

Answer 17

Proposition 1:
The representation, on an objective assessment, must relate to either a specific part of the representor’s property, or the whole it.

(On the facts)
Downing’s statements ‘I would take care of you’ did not relate to any property ([12], [15], [18]).

Proposition 2:
To prove detriment, there must be conduct which goes beyond what might normally be expected of the relationship between the parties

(On the facts)
Lissimore did not give up her job as a pharmacist’s assistant with great reluctance, because she didn’t enjoy it in the first place. There was also no sense in which she was giving up ‘a career’. Downing also did not press her from finding another job, he merely said it was not urgent.

Lissimore’s efforts in working on working on the Astbury Estate was simply part of the relationship she had with Downing. There was nothing unusual that suggested it was motivated by a specific assurance that Downing had made.

Proposition 3:
When the benefit to the representee hugely outweighs the detriment, the court will lean towards finding no reliance

Question 18

Gillet v Holt

Answer 18

Proposition 1: The doctrine of PE is not subdivided into 3 or 4 watertight compartments; The issues of reliance and detriment often overlap.

Proposition 2: The representation may be promises that are revocable (e.g. testamentary disposition). What makes them irrevocable and binding is the promisee’s detrimental reliance on them.
(Contrast with Humphreys Estate)

Proposition 3:
Detriment is not a narrow concept. It need not consist of an expenditure of money or other quantifiable financial detriment, as long as it is substantial enough

Proposition 4:
The exact ‘detriment’ from which the law seeks to give protection is that which would flow if the representor is allowed to resile

Proposition 5:
Whether a detriment is substantial is tested by whether it would be unconscionable not to estop him

Proposition 6:
There must be sufficient causal link between the assurance relied on, and the detriment asserted

Proposition 7:
The court may apply the element of acceleration (i.e get property earlier) but make appropriate discounts for the time value of money

(On the facts)
Maximum extent of equity: Tenancy of Limes, freehold of Beeches, freehold of White Farm, the farming business

Equity granted: freehold of Beeches and $100K to disentangle GIllet from having any remaining participation in the business

Proposition (obiter):
The court noted that the degree to which a promise must appear as irrevocable (to the promisee) should not be greatly exaggerated. After all, it is the promisee’s detrimental reliance on it that makes it irrevocable.
(p 229)

(On the facts)
Given the very long-term relationship between both parties (30 years), and the consistent representations that were made over a long period of time, the EWCA found that Holt’s representations (that Gillet would inherit the farming business) were meant to be taken seriously in the context of Holt’s and Gillet’s relationship

Even though testamentary dispositions were inherently revocable, Gillet’s detrimental reliance had made Holt’s representations binding.

Question 19

Willmott v Barber

Answer 19

(The five probanda)
1. Plaintiff must have made a mistake as to his legal rights.
2. Plaintiff must have expended some money or done some act on the faith of this mistaken belief.
3. Landowner must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff.
4. Landowner must know that the plaintiff is mistaken as to his rights.
5. Landowner must have encouraged the plaintiff in his expenditure of money or other acts either directly, or indirectly by abstaining from asserting his legal right.

Question 20

Humphreys Estate

Answer 20

Proposition 1:
When both parties know that an agreement between them is only one in principle (i.e revocable), a party who acts to his detriment on the mere hope that a formal agreement would come into effect will not be entitled to rely on PE

(On the facts)
The evidence showed that the HK government (representee) knew at all times the agreement was only one in principle, because the documents exchanged between both parties consistently maintained the position that neither party was bound by any agreement.

The Privy Council denied the claim for PE because HKL did not create any expectation that was objectively intended to be relied on by the HK government

Question 21

Cobbe v Yeoman’s Row

Answer 21

Proposition 1:
The phrase “subject to contract” is not strictly required; In commercial contracting, the right not to proceed with negotiations exists independently of the use of that phrase.

Proposition 2:
The expectation must relate to a certain interest in land. On the facts, Lord Scott opined that Cobbe’s expectation that ‘both parties would sit down and contract formally’ did not sufficiently relate to a certain interest in land ([20])

(On the facts)
Mr. Cobbe as an experienced property developer knew that the oral “agreement in principle” for the sale of land was rescindable. Though the ‘subject to contract’ line in Humphrey Estates was missing here, the HL said it was not strictly required as both commercial parties should have known that there was no legally binding contract.

The HL denied the claim for PE because the defendant had not create any assurance that was objectively intended to be relied upon by Mr. Cobbe. On the contrary, Mr. Cobbe proceeded knowing full well of the risk that the other party could resile from the arrangement.

Question 22

Thorner v Major

Answer 22

Proposition 1:
To give rise to PE, the proprietary interest must relate to identifiable property.

(On the facts)
Even though the precise extent of Peter’s farm would have fluctuated from time to time, “the farm as it existed at the representor’s death” related to sufficiently identifiable property ([62])

Proposition 2:
To give rise to PE, the representation must be sufficiently clear: The promise must be unambiguous and must be intended to be taken seriously in its context. The test is objective. ([56])

(On the facts)
In the context of Peter’s and David’s relationship, the court found, on an objective assessment, that Peter’s representations made in the course of their long relationship were meant to be taken seriously by David in the context of their relationship.

Proposition 3:
The court took the broad approach of analysing the ‘continuing pattern of conduct by the (representor for the remaining 15 years of his life’ instead of analysing each discrete element which, on its own, may be insignificant ([60])

Proposition 1 (obiter):
Lord Neuberger suggested that if a person relied on an assurance which could reasonably be understood as having more than one possible meaning, the ambiguity would not be a bar to PE, but he should be given relief on the basis of the interpretation least favourable to him ([86])

Proposition 2 (obiter):
Lord Neuberger agreed with Lord Scott that the claimant in Cobbe failed because it was uncertain if the claim related to an interest in land or to an entitlement to contract formally ([92])

Question 23

UOB v Bank of China`

Answer 23

Proposition 1:
Where there is a large time-gap between the time of the representation and the reliance, the court will lean towards finding no reliance

Question 24

Hong Leong Singapore

Answer 24

Proposition 1:
Reliance could be partial in the sense that reliance on one factor would not preclude reliance on some other factor. The real question was whether the conduct in question was ‘influenced’ by the representation.

Proposition 2:
Once representee proves the representation and a change of position which ‘is capable of causal relation from it’, reliance will be inferred

Evidential burden is then on representor to disprove the reliance as a matter of fact ([207- 209])

Note: Representee maintains the legal burden throughout, discharged through inference + evidential burden on representor

Question 25

Greasley v Cooke

Answer 25

Proposition 1:
Once the representor makes a representation calculated to influence the judgement of a reasonable man, it will be presumed that the representee was so influenced. The evidential burden then falls on the representor to prove that there was in fact no reliance (p. 1311D)

(Note: The court may also employ counter-factuals to support this inference)

(On the facts)
Cooke lived with her quasi-husband, Kenneth, and looked after his home and his invalid sister for a long time. She was told by Kenneth and Hedley (Kenneth’s other sister) that ‘they would do the right thing by her’. However, after Kenneth died, Hedley sought to evict Cooke.

The trial judge accepted that Hedley and Kenneth had represented that she would be able to remain in the house. However, he dismissed the PE claim on the basis that Cooke had not proved her act of taking care of the invalid sister was done in reliance of their assurance.

The EWCA overturned the ruling and held that since the representation was calculated to influence Cooke (to put her mind to rest), there is a presumption in fact that Cooke had so relied, and the evidential burden fell on Hedley to prove that Cooke did not in fact rely on his assurance. Since they Hedley could not do so, the claim should succeed.

Question 26

Taylors Fashions

Answer 26

Proposition 1:
Distinction between a course of conduct induced ‘on the faith of’ that belief and ‘in’ that belief.

(On the facts)
Court employed a counter-factual to support their inference on the facts; Given that the business still had another 18 years before any question of renewing option arose, it was ‘conceivable’ that they would still have done the work if they had not thought the option was valid

Question 27

Expectation-based approach in Andy Low

Answer 27

Proposition 1:
The court has discretion and flexibility as to how to satisfy the equity, and should be guided by the twin lodestars of (1) ensuring proportionality between the expectation, the detriment and the remedy and (2). doing the minimum required to satisfy the maximum extent of the equity

(Absolute maximum is the position the claimant would be in if the representation was carried out, even if detriment outweighs this expectation)

There are 2 stages to this:

1st stage: Calculate amount that would fulfil the claimant’s expectation

2nd stage: Consider whether this amount should be discounted to ensure proportionality, and to do the minimum to satisfy the maximum extent of equity

Proposition 2:
Countervailing benefits should only be taken into account when they were acquired as a direct result of the course of conduct through which the claimant satisfies the reliance element ([95])

(On the facts)
Andy was successful in raising an equity for his detrimental reliance on his deceased grandmother’s representation that Andy could stay in her 5-room HDB flat “for the rest of his life”. The issue was how to best fulfil his equity.

(First stage)
The court multiplied a base rental sum (assessed at $1.500 a month) by a multiplier reflecting the time period Andy expected to stay in the flat (10 years, until he became single and eligible to purchase his own HDB flat), to derive the cost of residing in the flat for that time period (A total of $180K).

With regards to the base rental sum, the court rejected the submission that only the rental rate for a 5-room HDB flat was appropriate, because Andy’s expectation was only to enjoy a license to occupy the flat, which did not preclude the grandmother’s estate from renting out other rooms besides the one Andy had occupied. Thus, $1000, which was roughly the cost of the 3-room rental flat Andy occupied after his eviction, was a more appropriate sum.

An additional $500 for the rental of furniture in the flats as Andy would be added to the flat rental (totalling $1,500) since Andy’s expectation was to live in a furnished flat.

With regards to the time period, the court rejected the submission of 14 years, which reflected the time it would take before Andy would have been able to move into a constructed BTO flat applied on the Single Singapore Citizen Scheme (SSCS) when he turned 35. The court said 10 years was more appropriate because it was wrong to assume that Andy would only buy a BTO flat (and not a resale flat) the moment he reached 35.

(Second stage)
It then applied a discount of $40,000 in line with making achieving proportionality between the expectation, the detriment, and the remedy. In doing so, it considered the following alleged detrimental acts:

The medical expenses of $80,000 as claimed to take care of his grandmother was exaggerated and the figure was closer to $18,000.

Andy did not have to take care of his grandmother all by himself - he actually had the help of a maid.

Andy’s fear of being infected with tuberculosis and sacrifice of his social life was a non-financial detriment that should, and thus would, be taken into account.

Andy’s ability to stay rent-free in the flat since he was a child was not a countervailing benefit, because it was not incurred as a direct result of his reliance. In other words, Andy was able to grow up in the flat rent-free regardless of whether he took care of his grandmother.

Question 28

The ‘falling not far short of contract’ expectation-based approach in Jennings

Answer 28

When the

1. Assurances and the claimant’s reliance have a consensual character “falling not far short of an enforceable contract” and;
2. The claimant’s expectation and detriment can be defined with reasonable clarity and;
3. The expectations are not “extravagant, or out of all proportion” to the detriment (e.g. $435K expectation to $200K detriment)

Then the court’s natural response is to fulfil the claimant’s expectations.

([45], [50])

Question 29

Example of when the expectation-based approach would be appropriate

Answer 29

A typical case would be an elderly benefactor who reaches a clear understanding with the
claimant (who may be a relative, a friend, or a remunerated companion or carer) that if the
claimant resides with and cares for the benefactor, the claimant will inherit the benefactor’s
house (or will have a home for life)

Question 30

The reliance-based approach advanced by Wilken & Ghaly

Answer 30

1. Consider only the detriment suffered by the claimant
2. Even if detriment is difficult to quantify, court should try to create a remedy proportionate to what the claimant has given up in reliance
3. Only if the detriment is intangible and uncertain (e.g. given by Wilken & Ghaly include ‘a lost education’ or ‘a lost career), should the courts consider the expectation

([24] and [26] Andy Low)

Question 31

When should the court apply the expectation based-approach vs reliance based approach?

Answer 31

Andy Low as obiter said it would be based on the claimant’s election; If the claimant had pleaded case on basis of expectation, then he cannot recover reliance loss.

If claimant has made a bad bargain (i.e reliance loss exceeds expectation loss), he cannot claim expectation loss.

([29] of Andy Low)

Question 32

What factors should the court also consider when satisfying the equity besides detriment and expectation?

Answer 32

The parties’ respective financial positions (Sledmore v Dalby)

Need for a clean break between parties (Pascoe v Turner)

The element of acceleration (Gillet v Holt)

Any countervailing benefits acquired as DIRECT RESULT of the very course of conduct through which the claimant satisfies the reliance element (Sledmore v Darby, Andy Low)

Question 33

Sledmore v Dalby

Answer 33

Proposition 1:
If one party has already enjoyed any countervailing benefits, any inchoate equity raised by PE may be exhausted or expired due to these countervailing advantages

(On the facts)
On the facts, the court found that any equity that was raised in the representee’s favour was exhausted because he had already enjoyed staying in the accommodation rent-free for over 18 years.

Question 34

Pascoe v Turner

Answer 34

Proposition 1:
In deciding how to satisfy the equity, the need to give a clean break between both parties will be considered.

(On the facts)
Pascoe left his mistress (Turner) occupation of the house in order to move in with a woman elsewhere. Pascoe told Turner that ‘the house was hers and everything in it’. On the faith of that assurance, Turner incurred substantial expenses in renovating the house. Pascoe later ordered her out.

EWCA held that Turner had an equity against Pascoe. They also decided to grant a transfer of the house in fee simple instead of a license for a lifetime because a mere license would not allow the licensee (representee) to indefinitely keep out the licensor (representor, ex-lover) from entering the house.

Question 35

What are the possible remedies to satisfy the equity?

Answer 35

Deny any claim to possession by the legal owner of the property.

Order the owner to convey the property to the plaintiff.

Declare that the plaintiff has some proprietary right in the property. Declare that the owner of the property holds it on a constructive trust, on particular terms giving the plaintiff some equitable interest in the property.

Order monetary equitable compensation.

Question 36

When is a representation sufficiently clear?

Answer 36

The promise must be unambiguous and must be intended to be taken seriously in its context. The test is objective

(Thorner [56])

Question 37

What is the difference between a constructive trust and a proprietary estoppel claim?

Answer 37

Where a constructive trust is claimed, the successful claimant will obtain an equitable interest in the property; whereas the successful claimant to a proprietary estoppel obtains such relief as the court in its discretion would direct.

Question 38

Re Sharpe

Answer 38

Proposition 1:
The equity is binding against a trustee-in-bankruptcy

Question 39

Inwards v Baker

Answer 39

Proposition 1:
An inchoate equity was binding on the owner’s personal representatives (trustees of his will)

Question 40

Analysis: Is the estoppel license binding on the (third party)?