equity assignment complete version

8/19/2019 Equity Assignment Complete Version

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TA'LE O( CONTENT

N$M T)TLE *AGE N$M

1.0 ACKNOWLEDGEMENT 1

+.0 OE-)EW

.0 CONTENT

.1 E/*-E T-$T 2 3

.+

CONT)T$T)ON O( E/*-E T-$T 4 2 1+

. 'O$TEAD CAE 1 2 15

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COM*A-E AND CONT-AT 13 2 14

.0 CONCL$)ON 16 2 17

5.0 ')'L)OG-A*8Y +0 2 +1

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+.0 OE-)EW

67uity means fair and 8ust, moral and ethical. 67uity came into force before the

udicature 2ct of #*%) and applied by +ourt of +hancery. The e7uity and trusts law I

assignment 7uestion is mainly about the relationship between the doctrine of estoppels

especially proprietary estoppels and the express trust as well as recent development in

alaysia. Therefore, we divide the task e7ually with the relevant points.

First content of this assignment shall consist of information regarding express trust.

Thus, we defined the express trust and explained the re7uirements of satisfy the threecertainties of express trust. (econdly, we talked about constitution of trust. !asically, the

element of transfer of property which determines which is completely constituted trust or

incompletely constituted trust. Then, under the completely constituted trust, there are

perfect gift and imperfect gift elements. Then, we talked about the four main exception of

imperfect gift which are rule in (trong v !ird, proprietary estoppels, donatio mortis causa

and benevolent construction. owever, for the purpose of this assignment, we explained

about estoppels in detail which includes the types of estoppels and their functions and

role as well.

Thirdly, there will be discussion on !oustead case. The facts, issues and 8udgement

as well as ratio decendi of the case were explained thoroughly. In addition, we took the

chance to explain about the relationship between express trust and proprietary estoppels.

3ast but not least, we compare and contrast !oustead case with the cases before and after

!oustead case.

Thus, in conclusion, we had written down on what we had learned from this

assignment and the development in United 4ingdom and alaysia as well as the

suggestion to improve the development. 2ll these details and task was supported by all

the relevant cases and authorities.

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.1 E9:ress Trust

2 trust is a fiduciary relationship binding three parties that is the settlor, trustee, and

beneficiaries. It is an imposition of obligations, e7uitable in nature on the holder of the

property in favour of others for the purpose valid in law. 2 settlor will be the person

creating the trust, the trustee will be the person elected by the settlor to hold the property

on trust and the beneficiary will be the person that will benefit from the trust. There are

many types of trust that can be created and one of it is the express trust.

2n express trust is a trust that is declared by a settlor who intends to transfer his

property to the trustee so that the trustee can hold the property on trust for the

beneficiaries. Then it falls upon to the trustee to distribute the trust property to the

beneficiaries according to the terms that already have been set by the settlor in pursuant

of the trust. In certain 8urisdictions, an express trust can be established by way of oral

agreement. owever, an express trust is usually created by way of will where the testator

will specify in his will that he intends to leave the property to the trustee for him to hold

the trust property on trust for the beneficiaries. 6xpress trusts are usually created to

benefit beneficiaries who are too young to hold properties. ence, to protect their

interest, the settlor will create the trust so that the trustee can make full use of the trust to

benefit the beneficiary.

2s mentioned earlier, an express trust works in the way where the settlor will transfer

the trust property to the trustee and the trustee will then benefit the beneficiaries with the

trust property. ence, settlor will transfer the legal ownership to the trustee and the

beneficiaries will then have e7uitable ownership to the trust property. ence, if the trustee

breaches his fiduciary duty, the beneficiaries will be able to take action against the trustee

as the beneficiaries have e7uitable interest on the property. This can be proven in the case

of Youn; % Mur:h&1 where the court in this case held that a trustee who has committed a

# 9oung v urphy :#''5; #


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breach of trust might be sued by the beneficiary suffering lost due to the trustee>s breach

of duty.

In order to form a valid and enforceable express trust, there are three certainties that

must be fulfilled. Firstly, it is the certainty of intention where the settlor or testator must

specify his intention of creating the trust. ?n proper construction of words, if the settlor

has shown his or her intention to create the trust, then the certainty of intention is

fulfilled. ence, what is important to satisfy this certainty is the state of mind of the

settlor and it doesn>t need to be in technical terms to show the intention. !esides, it need

not be in writing too. It can be created by either orally or in writing and can be proven as

in the case of


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this case the court held that there is no trust created where the testamentary gift concerned

Bthe bulk of my estate> was held not sufficiently certain to satisfy for sub8ect matter. The

sub8ect matter of the trust must be ob8ectively determinable by a person or court so when

there is a dispute, the person or court will be able to determine which asset of the settlor

falls under the trust property5.

3astly, it will be the certainty of ob8ect where the ob8ect in the creation of trust will

be the beneficiary to the trust. The general rule is that a trust must be in favour of human

beneficiaries or charitable in law and the humans must be ascertainable. !esides, for the

purpose of future interest, they must be ascertainable within the perpetuities period.

Under the certainty of ob8ect, it then can be divided into two categories and they are fixed

trust and discretionary trust. 2 fixed trust is the one which the share of interest of the

beneficiaries are specifically mentioned in the trust instrument and a discretionary trust is

the one which the trustees hold the property for such members of a group of beneficiaries

since they will be in their absolute discretion determine. There are two tests to determine

the type of trust and the two tests are Bis or is not test> and class test. The Bis or is not test>

is applicable in determining whether there will be a fixed trust and the class test will be

used to determine if the trust falls under discretionary trust and in the case of M!*hai" %

Dou"ton4. In this case, the court held that the discretionary trust created for employees

and their relatives only re7uired the ability to determine whether someone was or was not

a part of the class. The failure to satisfy the certainty of ob8ect will then result in the

creation of resulting trust where the trust property will then go back to the settlor.

5=e "olay>s Will Trust :#'51; $ 2ll 6= 55&C eldD 2 gift directing the executors to allow

a beneficiary to receive Ea reasonable income from my other properties was held to be

certain enough because ob8ectively determinable by the court.% c/hail v Aoulton :#'%#; 2+ 0$0

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.+ CONT)T$T)ON O( AN E/*-E T-$T

In order to be a valid trust, it must comply with re7uisite formalities and the three

certainties as well as properly constituted. 2 constituted trust can be said when the

intended trust property had been transferred or vested to the trustee. In this sense, the

beneficiaries only had the e7uitable interest in the trusted property that the trustee held it

for their benefit on trust. If the trustee later did not transfer the property to the

beneficiary, they can sue them through the way of e7uity to compel the trustees to act on

the trust.

2 constituted trust can be say fully enforced is only when the gift is perfected. 2

gift is perfect only when the intended trust property had fully transferred or vested to the

trustee. Therefore, in order to constituted the trust only by the way to transfer the trust

property to the trustee and it will be binding on the side of the settlor that he cannot later

change his mind and revoke the trust.

2 trust is to be said incompletely constituted and no consideration when the gift is

imperfect. In this situation the trust will be considered as a void trust. In the case or

Mi"ro& % Lord, that stated the general rule that assisted in the case when the legal title of

the intended trust property is not properly transferred. The general rule stated under case

will be that the e7uity will not perfect an imperfect gift which also can be means that

e7uity will not assisted in the situation which the gift failed to transfer. There are few

exception that will be apply in the case of incompletely constituted trust.

The first exception will be that the offeror had done his part or all the re7uirement

in order to transferred the property or to make the gift perfect. This exception is been

listed down in the case of -e -ose6, it had held that, if the settlor had already done what

is re7uired and what in his capacity in order to transfer the gift and is not on his fault if

* =e =ose :#'1$; 6W+2 +iv 0

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the property is not transfer to the trustee it will be an acknowledgement by the court that

the transfer of the property will be considered to be complete. In the further explanation,

this can be considered as a completely constituted trust because the intention of the settlor

is to transfer the property to the trustee and this intention is maintained until his death but

the transferred had not been completed and is not due to his fault.

The next exception will be when the gifts is made in contemplation of death which

is comes from the words donations mortis cause. This rule will be apply when that gift

will be transfer only upon the death of the settlor, this is the meaning of a gift made in

contemplation of death. The gift will only transfer when the settlor die can also said ad

the gift will only be prefect if the settlor die.

The rule in tron; % 'ird7 will be the next exception. There are four conditions

that laid down in this rule in order to perfect the imperfect gift. First, the settlor or the

donor of the property must have intention to transfer a gift. (econdly, this intention must

be maintained until his death. Thirdly, a trustee must be appointed by the settlor. 3astly,

the gift>s sub8ect matter must be in capacity of enduring the death of the settlor.

The last exception will be the proprietary estoppel. The proprietary estoppel can be

said as rule to perfect an imperfect gift is when the trustee had acted to his detriment and

the promise had made to the trustee more than once. This rule had been developed in the

case of Wi""#ott % 'arber10, which in this case it held that the settlor must made a

mistake on his legal right on the property and the trustee had be misrepresentation by the

settlor on his mistaken belief in the legal of his. While in this situation the settlor also had

knowledge in the mistaken belief or misrepresentation of the trustee and the settlor had

failed to prevent the trustee to act to his detriment. In the case of Gi""et % 8o"t11, had

applied the proprietary estoppel to perfect the imperfect gift. In this case, the court held

that, the plaintiff had acted in his detriment by dropping out from his school and working

in the defendant farm for 0& years because the defendant>s many promises one of his

' (trong v !ird :#*%0; #*. 67 )# G 3=H

#& Willmott v !arber :#**&; #1 +h A '5 '5 G+hH## "illet v olt :$&&&; ) W3= *#1 G +2H

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promise will be transfer the farm to plaintiff once the defendant retirement that had make

to the plaintiff. Therefore, proprietary estoppels will come in as a e7uity to assist the

plaintiff.

6stoppel can be defines as a set of rules or doctrine that which set up and used by

the court to prevents someone from taking an action which he had the right to take. This

can be means like normally a person had the right to move their property out the country

but if a person had been estoppel by the court he will not able to do so. 2 person can be

estoppel when a party had reasonably rely on the other party promise and because of that

the party had faced damages or had in8ured. Then, that party can issue a estoppels from

the court toward the another part.

There are many types of estoppels and the estoppels can be divided in few

categories. The first category will be reliance based estoppels and also estoppels by

record. Then we have estoppels by deed and estoppel by silence. =elianceCbased

estoppels is a very common estoppels that normally involve that one party rely on another

party promise and performed the contract but later the another party fails or refuse to do

so. The in8ured or damages party can apply for estoppels from court against the other

party.

The promissory estoppel is one of the relianceCbased estoppel. This estoppels

allows a party who acted rely on another promise and suffered losses or damages to

recover his losses or the benefit that the promise made even there is no legal contract.

There are four elements that must fulfil to raise promissory estoppels. First the promisor

must made a promise significant enough to cause the promise to act on it. This can be

also said that the promise must be clear enough and must not be a ambiguous promise.

(econdly, the promise must be acted reliance on the promise made. This means that the

promisor must be intents that the promise will be relied upon and later the promise does

in fact rely upon it. Thirdly, there must be a preCexisting contractual relationship between

two parties. 3astly, this must not be ine7uitable for the promisor to go back to the

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position which to acted on their promise.#$

/romissory estoppels had been developed in the case of 8u;hes %. Metro:o"itan

-ai">a& Co .13 that 3ord +airns stated the conditions of the promissory estoppels.

/romissory estoppels had later reconstructed in the case of Centra" London *ro:ert&

trust Ltd % 8i;h Trees 8ouse Ltd by 3ord Aenning. In this case the claimants lend a

flat to defendants at $1&& pounds and later agree in reduction of rental during the World

War II. 2fter the world war II, the claimant wanted to demanded the return to the original

full rent payment. The court held that the claimant can go back to the full payment of

rental but he cannot demand the full rental when the world war II. This is because the

defendant acted upon the promise that the claimant will reduce the price therefore it will

be ine7uitable for the defendant to pay back the full rental.

The second estoppels will be the estoppels by representation. This term is coined by

(pencer !ower. (pencer !ower had defines estoppels by representation

“as where one person (‘the representor’) has made a representation of

fact to another person (‘the representee’) in words or by acts or conduct,

or (being under a duty to the representee to speak or act) by silence or

inaction, with the intention (actual or presumptive) and with the result of

inducing the representee on the faith of such representation to alter his

position to his detriment, the representor, in any litigation which may

afterwards take place between him and the representee, is estopped, as

against the representee, from making, or attempting to establish by

evidence, any averment substantially at variance with his former

representation, if the representee at the proper time, and in proper manner,

objects thereto.

2 statement or a conduct made by someone can be said as a representation. The

#$ 4at4adianC!aumeyer (tudycom, JJ GAoctrine of /romissory 6stoppelD Aefinition,

6xamples K 6lements, H LhttpDMMstudy.comMacademyMlessonMdoctrineCofCpromissoryC

estoppelCdefinitionCexamplesCelements.htmlN accessed $% 2U("U(T $#) ughes v. etropolitan =ailway +o. G#*%%H $ 2+ 0)' G3H

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element in estoppels will be that the representation must be in a clear and in a

unambiguous language. !eside by a statement or conduct, silent can also be a

representation if the person had a duty to speak or when duty of care arise on him he

silent on it. These estoppels had been adopted in the case of Te9as 'an= !ase1 that in

this case the court held that unconscionability can be a issue in the case of estoppels

representation. That for example silent when you have a duty to care will be on of it. In

the case of *i!=ard % ears15 that the elements for the estoppels by representation will be

that did not included unconscionable conduct by the party until the case or Texas bank

come into enforcement.#5

The next will be the proprietary estoppels. /roprietary estoppel was developed in

#*5$ in the case of Di"">&n % Li>e""&n. That in this case the son had ac7uired a house

from his father and he thinks so because he was given a written notice by his father that

he will be given this house. 3ater the house not given to the son even the son was

spended money and time to improve the property. #% While later in the case of Wi""#ott %

'arber16 that the court laid doen five elements in order to established /roprietary

estoppels successfully. First element will be that the claimant have make a mistake to his

legal rights. That this can be said as if a person wished to convey his property by later this

transfer was invalid for some reason. (econd element will be that the claimant had did

some act of reliance. Which also can be said that the claimant had did some act that rely

on the promise made by the defendant. Thirdly, the defendant must had knows that the

claimant had mistakenly belief in the promise between them. That the defendant had

knowledge in the claimant mistakenly belief. Fourthly, that the defendant must had

knowledge on the right of the claimant claimed was inconsistence with the exsistence

legal right that possessed by the defendant. 3astly, the defendant must had encouraged the

claimant on acting upon the acts of reliance.

For example, if a husband had promised to his wife that he will give a house to her. The

#0 Texas !ank :#'*$; @! *0 G +2H

#1 /ickard v (ears : #*)%; 5 2d K 6l 05'#5 Inbriefcouk, JJ GIntroduction to /roprietary 6stoppel, H LhttpDMMwww.inbrief.co.ukMlandC

lawMproprietaryCestoppel.htmN accessed $% 2U("U(T $

#% Aillwyn v 3iwellyn G#*5$H 0 Ae "FK 1#%#* Willmott v !arber G#**&H #1 +h A '5

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husband had the knowledge that his wife had already spent a lot of money in improving

the house. !ut later, after the husband die, the house did not transfer to her and now she

claiming for e7uitable owner toward the house. The court will found that the trustee will

be estopped by the proprietary estoppels from denying the wife to claim the house and

will ordered the trustee to convey the house to the wife. These are the estoppels that a

person can used to estopp another party to act upon the promise or to deny another party

from acting upon some act.

. 'O$TEAD CAE D)C$)ON

#$


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'oustead Treadin; dn 'hd % Arab2Ma"a&sian Mer!hant 'an= 'hd is an

important and landmark case for estoppels in alaysia.#' In this case, the appellant had

bought goods from +hemitrade (dn !hd G+hemitradeH. 3ater the respondent has entered

into an agreement with +hemitrade whereby the appellant has assigned the debts which

had owed by him to respondent. The debts is the money that are owned by the appellant

which has to be paid to +hemitrade. 2s an evidence for every sale and delivery of goods,

appellant has received copies of invoices from respondent which is issued by +hemitrade.

With that respondent has stamped the invoices with the endorsement that if got any

ob8ection must be made within #0 days of receipt. Auring the #0 days period when

appellant has received the invoices, he did not made any complain within the said period

nor challenge the respondent>s imposition of the endorsement. !ut after the payments on

the invoices have been made by appellant, he refused to make payment on $& invoices.

(ubse7uently the respondent denied to acknowledge the statement and argued that since

appellant did not make any ob8ection about the validity of the endorsement during that

period of time, it was entitled to assume that appellant had agreed and accepted it.

The appellant however refused to pay the $& invoices and appealed before the

Federal +ourt by raising the main issue that whether estoppels would apply to prohibit

the appellant from challenging the legitimacy of the invoices in 7uestion. $& With this, the

Federal +ourt applied estoppels and held that the factoring agreement that had been

entered between appellant and respondent was a valid agreement. It would be un8ust and

unconscionable to allow the appellant to challenge the validity of the document.

Furthermore, the court has used the reasonable man test by arguing that standing in the

respondent>s position any reasonable man would be assumed that the appellant had

agreed to the conditions during the #0 days period. This is because the appellant not only

remain silent of not doing any ob8ection but in fact he also made payment on some

#' !oustead Treading (dn !hd v 2rabCalaysian erchant !ank !hd :#''1; ) 3 ))#$& +heong may fong, +ontract 3aw In alaysia G#st edn, (weet K axwell 2sia $&H

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invoices. It is unreasonable and ine7uitable for appellant to 7uestion about the validity of

the endorsement after #0 days.

In this case, the Federal +ourt had clarified and restated two elements of the

doctrine of estoppels, the first is concerned about the effect which the representation or

encouragement had lead the mind of the people relying upon the estoppels. (econdly, it

would be whether the person should have acted to his detriment. "opal (ri =am +2 had

stated that it is sufficient to prove that a person>s conduct was so influenced by the

encouragement that it would be un8ust for the representor to claim upon his strict legal

privileges.

In this !oustead case, promissory estoppels has been successfully raised up as both

of the parties are in a contractual relationship and respondent had acted in reliance on the

promise that made by the appellant. In this situation, doctrine of promissory estoppels

seeks to prevent appellant from reneging on his agreement upon the imposition of the

endorsement. It is ine7uitable to allow appellant to go back on his promise and challenge

the validity of the invoices. "opal (ri =am +2 also further adduced that this doctrine is

said to act as a defense and not as a cause of action.

‘!he doctrine of estoppel is a fle"ible principle by which justice is done according

to the circumstances. #t is a doctrine of wide utility and has been resorted to in

varying fact patterns to achieve justice. !he ma"im $estoppel may be used as a

shield but not a sword$ does not limit the doctrine of estoppel to defendants alone.

%laintiffs too may have recourse to it. &stoppel may assist a plaintiff in enforcing

a cause of action by preventing a defendant from denying the e"istence of some

fact which would destroy the cause of action.’ '

Thus, the relationship between trust and estoppel is trust is the main element that

formed e7uity. Trust will be imposed on every individual that have entered into the

agreement voluntarily. In the case of ta!= % Do>den++ it supported that the foundation

$# !oustead Treading (dn !hd v 2rabCalaysian erchant !ank !hd :#''1; ) 3 ))#$$ (tack v Aowden :$&&%; U43 #%

#0


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of forming trust is that the both party must have a common intention towards it. The

element of detrimental reliance is also not to be forgotten in forming the constructive

trust. =egarding to this element, the claimant has to prove that he has made a material

sacrifice in the form of financial contribution in ac7uiring the beneficial entitlement.

While on the other hand, 3ord (cott has explained that a promise that made as a

part of an incomplete oral agreement which cannot give rise to proprietary estoppels. It

must be a clear and une7uivocal promise to form proprietary estoppels which had been

supported in the case of Thorner % Maor.$) In brief, proprietary estoppel can be viewed

as a remedy for unconscionability when the claimant did not get compensated on the

damages that he has suffered.

When taking both proprietary estoppels and trust into account, there are few

numbers of grounds that these two can correlate to each other. This has been supported in

the case of L"o&ds 'an= *"! % -osset+ which stated that these both will operate coincide

when the parties have reached mutual understanding and agreement that the property will

be shared beneficially and e7ually. While in the case of Ya9"e& % Gotts+5, 8udge also had

held that both of these will coincide with each other as both of these will provide relief

which are derived from e7uity>s intervention. any 8udges has supported and followed

on this view as the purpose of e7uity is to 7ualify the enforcement of the positive law to

ensure a more complete standard of 8ustice than the law itself would attain. $5

. De%e"o:#ent of Esto::e" in Ma"a&sia

2 good example case that clarifies the position of estoppel being used in cases

before the !oustead case, can be seen in the case of MAA 8o"din;s dn 'hd ? Anor %

$) Thorner v a8or :$&&'; U43 #*

$0 3loyds !ank /lc v =osset :#''&; U43 #0$1 9axley v "otts :$&&&; +h #5$

$5 Wan 2lan, 67uity and Trust in alaysia G$nd edn, (weet K axwell 2sia $&&1H #%

#1


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N; ie> Wah ? Ors+4. In this case the vendors were not allowed to go back on their

contract for the purchase of the shares in their company to the first plaintiff, whom was

the actual undisclosed principalO the actual contract entered between the second plaintiff

as an agent of the first plaintiff and the defendants. The court opined in this case that it

would be ine7uitable to let the vendor to go back on his word as it was established in the

case that the vendors remained silent and did nothing to show the contrary to their

disagreement to the purchase, furthermore, they had in fact waited for a long period

before insisting the purchasers should comply with the re7uirement of Foreign

Investment +ommission GFI+HO although the contract between the parties expressly stated

that the approval or disapproval of FI+ will not invalidate the contract. $* (upporting this

rationale the court 7uoted the o!iete )ta"o2'e";e % *a"# Oi"s+7 and Centra" London

*ro:ert& Trust Ltd % 8i;h Trees 8ouse Ltd )&, where 3ord Aenning established the

principle for the first time. Taking cue from this, it is reasonable to say that the courts

were not 7uite ready to impose a wider interpretation on the Aoctrine of 6stoppel before

the !oustead case.

ust over a decade after the decision in !oustead Trading, is 3ordship "opal (ri =am

+2 restated that it is incorrect to apply the maxim Bestoppel used as a shield but not a

sword> as preventive the accessibility of the doctrine to defendants alone in the case of

Teh *oh Wah % ere#ban e!urities dn 'hd1. In this particular case, the court

disallowed the plaintiff from using the doctrine, as she would have let a reasonable man

to believe she had given her husband to act carte blanche i.e. complete freedom to act as

one wishes or thinks best, on her behalf through her conduct. 2nd on the undisputed facts

of the circumstances, that seems to be case.

It is clear from the above cases, that the position as it stands now does give recourse to

plaintiffs to rely on the doctrine. !efore the !oustead case, as discussed earlier,

alaysian courts did not particularly depart from the traditional notion of the Aoctrine of

$%22 oldings (dn !hd K 2nor v -g (iew Wah K ?rs :#'*5; # 3 #%&$* Ibid, p #%5.

$' (ociete ItaloC!elge v /alm ?ils :#'*$; # 2ll 6= #'

)& +entral 3ondon /roperty Trust 3td v igh Trees ouse 3td :#'15; # 2ll 6= $15)# Teh /oh Wah v (eremban (ecurities (dn !hd :#''5; # 3 %

#5


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6stoppels. It must be mentioned that in 8on; Leon; Leasin; dn 'hd % Tan Ki#

Cheon;+, the issue whether the Aoctrine of 6stoppels can be invoked by plaintiffs were

also discussed, although it wasn>t the main issue in the case, the learned 8udge in this case

made a reference to the landmark decision of the igh +ourt of 2ustralia which made a

comment on the igh Trees case stating that, even in the traditional notion of the

estoppel, the doctrine may be invoked by a plaintiff, as long as it>s only a part of the

cause of action, not the cause of action itself.

.0 CONCL$)ON

2s a conclusion, the basis of this form of e7uitable intervention is to estop one

party from enforcing his rights at law in respect of land when to do so would be

)$ong 3eong 3easing (dn !hd v Tan 4im +heong :#''0; # 3 #%%

#%


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unconscionable in the circumstances. 2ccording to anbury and artin, this doctrine is

applicable where one party knowingly encourages another to act or ac7uiesces in the

other>s action, to his detriment in the belief that he has or will have some property rights

against the first party. +ases of proprietary estoppels have often involved improvements

to specific property in the mistaken belief that the improver has or will be given

ownership with the owner positively encouraging this detrimental reliance or by standing

by and ac7uiescing in it. !asically, proprietary estoppels re7uire the proof of a

representation or assurance made to the claimant and reliance on it by the claimant as

well as detriment to the claimant due to his reasonable reliance.

?n the other hand, when we compare to United 4ingdom, a similar development

can be seen to have developed in the case of Thorner % Maor and others, in this case

the defendant was allowed to retain the property of the plaintiff GdeceasedH against the

plaintiff>s representatives as it was established in the case that defendant has acted on the

promise that the said property will become his after plaintiff>s death, in fact he even made

a will to that effectO however he revoked the will by destroying it, and died intestate.

owever, these entire years defendant has been working on plaintiff>s land as he relied on

that promise, and therefore the court granted him the right to title of the property. The

court also made reference that proprietary estoppels can also be used as a swordO 3ord

Walker of "estingthorpe of the ouse of 3ords stated the difference between promissory

estoppels and proprietary estoppels, in that to raise promissory estoppels the parties must

have an existing legal relationship, usually created through a contract, but not necessarily

a connected to a property. owever for the invocation of proprietary estoppels it is

sufficient that the party raising the doctrine has a connection with a propertyO and as such

it can be used as sword and not merely as a shield.)0

?nce again we could observe that both in 6ngland and in alaysia, the doctrine has

been given a wider implication so as to not to restrict its application. =estricting the

application of the doctrine to a defence to a cause of action may give rise occasions

where it would be ine7uitable to plaintiffs so as to make it advantageous to defendants.

)) Thorner v a8or and others :$&&'; ) 2ll 6= '01)0 Ibid, at at '55.

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For an example, the tied hands of the plaintiffs unable to enforce their rights whom may

have acted on reliance of defendantJs actions. /erhaps, the time has come to widen the

application of the doctrine.

5.0 ')'L)OG-A*8Y

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WE' *AGE

I. 4at4adianC!aumeyer (tudycom, JJ GAoctrine of /romissory 6stoppelD Aefinition,

6xamples K 6lements, H LhttpDMMstudy.comMacademyMlessonMdoctrineCofC

promissoryCestoppelCdefinitionCexamplesCelements.htmlN accessed $% 2U("U(T

$

II. Inbriefcouk, JJ GIntroduction to /roprietary

6stoppel, H LhttpDMMwww.inbrief.co.ukMlandClawMproprietaryCestoppel.htmN accesse

d $% 2U("U(T $

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equity assignment complete version

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