1.

0 ACKNOWLEDGEMENT
In completing this assignment, we had to take the assist and guidance of some admired
persons, who be worthy of our utmost appreciation. The end of this assignment grants us
much gratification. We would like to show our appreciation Mrs. Yusnita binti Mohd
Yusof, the subject coordinator of Multimedia University for giving us an excellent
parameter for assignment all the way through consultations.
Furthermore, we also thank the University of Multimedia for its consent and permission
to use the facilities such as computers, law books and discussion room in the law library.
Many people, especially our parents and classmates as well as team members itself who
have made precious comments and recommendations on this assignment which gave us
an encouragement and stimulation to make it better. Finally, we would also like to expand
our deepest thanks to all those who have directly and indirectly assisted us in completing
this assignment.

The authors
Buvaneswary Gunusegran 1122702290
Sukhvinder Singh 1122700138
Chu Jie Ning 1122700171
Tee Hui Peng 1122700450
A.Lalith Kumar 1122700886

TABLE OF CONTENT

NUM

TITLE

PAGE NUM

1.0

ACKNOWLEDGEMENT

2.0

OVERVIEW

3.0

CONTENT

3.1
3.2
3.3
3.4

EXPRESS TRUST
CONSTITUTION OF EXPRESS TRUST
BOUSTEAD CASE
COMPARE AND CONTRAST

4-6
7 - 12
13 - 15
16 - 17

4.0

CONCLUSION

18 - 19

5.0

BIBLIOGRAPHY

20 - 21

2.0 OVERVIEW
Equity means fair and just, moral and ethical. Equity came into force before the
Judicature Act of 1873 and applied by Court of Chancery. The equity and trusts law I
assignment question is mainly about the relationship between the doctrine of estoppels
especially proprietary estoppels and the express trust as well as recent development in
Malaysia. Therefore, we divide the task equally 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 requirements of satisfy the three
certainties of express trust. Secondly, we talked about constitution of trust. Basically, 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 Strong v Bird, proprietary estoppels, donatio mortis causa
and benevolent construction. However, 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 Boustead case. The facts, issues and judgement
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.
Last but not least, we compare and contrast Boustead case with the cases before and after
Boustead case.
Thus, in conclusion, we had written down on what we had learned from this
assignment and the development in United Kingdom and Malaysia as well as the
suggestion to improve the development. All these details and task was supported by all
the relevant cases and authorities.
3

3.1 Express Trust

A trust is a fiduciary relationship binding three parties that is the settlor, trustee, and
beneficiaries. It is an imposition of obligations, equitable in nature on the holder of the
property in favour of others for the purpose valid in law. A 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.
An 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 jurisdictions, an express trust can be established by way of oral
agreement. However, 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. Express trusts are usually created to
benefit beneficiaries who are too young to hold properties. Hence, 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.
As 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. Hence, settlor will transfer the legal ownership to the trustee and the
beneficiaries will then have equitable ownership to the trust property. Hence, if the trustee
breaches his fiduciary duty, the beneficiaries will be able to take action against the trustee
as the beneficiaries have equitable interest on the property. This can be proven in the case
of Young v Murphy1 where the court in this case held that a trustee who has committed a
1 Young v Murphy [1996] 1 VR 279
4

breach of trust might be sued by the beneficiary suffering lost due to the trustees 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. On proper construction of words, if the settlor
has shown his or her intention to create the trust, then the certainty of intention is
fulfilled. Hence, what is important to satisfy this certainty is the state of mind of the
settlor and it doesnt need to be in technical terms to show the intention. Besides, 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 Quah Eng Hock v Ang Hooi Kiam2 where in this case, the court came to
the judgment that words creating a trust need not be in writing but the intention creating it
must be clear and unequivocal. However, in Sabah and Sarawak, oral declaration of
intention to create trust involving immovable property is not sufficient and it must be
done in writing. In the case of Lee Pek Choo v Ang Guan Yan 3 where in this case the
court held that alleged oral trust is not valid in Sarawak when it comes to land dealing. In
addition, the use of precatory expression of hope and desire is not sufficient in showing
the existence of intention in creating an express trust. The failure to satisfy the certainty
of intention in a creation of trust will then turn the trust into outright gift. In the case of
Re Adams and Kensington Vestry4, the court after considering all the words used by the
settlor has held that there is no existence of trust as the settlor has failed to fulfill the
certainty of intention and the wife is then entitled to all of the property of the settlor as an
outright gift.
The next certainty is then the certainty of subject matter and the subject matter in a
trust will be the trust property. The trust property in a trust must be specified with
reasonable certainty so that the trustee will know which property he is holding for the
interest of the beneficiary. This can be seen in the case of Palmer v Simmonds5 where in
2 Quah Eng Hock v Ang Hooi Kiam [2000] 5 CLJ 126
3 Lee PekChoo v Ang Guan Yan [1975] 2 MLJ 146
4 Re Adams and Kensington Vestry [1884] 27 Ch D 394
5 Palmer v Simmonds [1854] 2 Drew 221
5

this case the court held that there is no trust created where the testamentary gift concerned
the bulk of my estate was held not sufficiently certain to satisfy for subject matter. The
subject matter of the trust must be objectively 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 property6.
Lastly, it will be the certainty of object where the object 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. Besides, for the
purpose of future interest, they must be ascertainable within the perpetuities period.
Under the certainty of object, it then can be divided into two categories and they are fixed
trust and discretionary trust. A 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 is or is not test and class test. The is 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 McPhail v
Doulton7. In this case, the court held that the discretionary trust created for employees
and their relatives only required the ability to determine whether someone was or was not
a part of the class. The failure to satisfy the certainty of object will then result in the
creation of resulting trust where the trust property will then go back to the settlor.

6Re Golays Will Trust [1965] 2 All ER 660- Held: A gift directing the executors to allow
a beneficiary to receive a reasonable income from my other properties was held to be
certain enough because objectively determinable by the court.
7 McPhail v Doulton [1971] AC 424
6

3.2 CONSTITUTION OF AN EXPRESS TRUST

In order to be a valid trust, it must comply with requisite formalities and the three
certainties as well as properly constituted. A 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 equitable 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 equity to compel the trustees to act on
the trust.
A constituted trust can be say fully enforced is only when the gift is perfected. A
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.
A 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
Milroy v 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 equity will not perfect an imperfect gift which also can be means that
equity 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 requirement
in order to transferred the property or to make the gift perfect. This exception is been
listed down in the case of Re Rose8, it had held that, if the settlor had already done what
is required and what in his capacity in order to transfer the gift and is not on his fault if
8 Re Rose [1952] EWCA Civ 4
7

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 Strong v Bird9 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. Secondly, this intention must
be maintained until his death. Thirdly, a trustee must be appointed by the settlor. Lastly,
the gifts subject 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 Willmott v Barber10, 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 Gillet v Holt11, 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 40 years because the defendants many promises one of his
9 Strong v Bird [1874] 18. Eq 31 ( LR)
10 Willmott v Barber [1880] 15 Ch D 96 96 (Ch)
11 Gillet v Holt [2000] 3 WLR 815 ( CA)
8

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 equity to assist the
plaintiff.
Estoppel 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. A 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 injured. 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
categorizes. The first category will be reliance based estoppels and also estoppels by
record. Then we have estoppels by deed and estoppel by silence. Reliance-based
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 injured or damages party can apply for estoppels from court against the other
party.
The promissory estoppel is one of the reliance-based 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.
Secondly, 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 pre-existing contractual relationship between
two parties. Lastly, this must not be inequitable for the promisor to go back to the

position which to acted on their promise.12

Promissory estoppels had been developed in the case of Hughes v. Metropolitan
Railway Co.13 that Lord Cairns stated the conditions of the promissory estoppels.
Promissory estoppels had later reconstructed in the case of Central London Property
trust Ltd v High Trees House Ltd by Lord Denning. In this case the claimants lend a
flat to defendants at 2500 pounds and later agree in reduction of rental during the World
War II. After 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 inequitable for the defendant to pay back the full rental.
The second estoppels will be the estoppels by representation. This term is coined by
Spencer Bower. Spencer Bower 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.
A statement or a conduct made by someone can be said as a representation. The
12 KatKadian-Baumeyer Studycom, '' (Doctrine of Promissory Estoppel: Definition,
Examples & Elements, ) <http://study.com/academy/lesson/doctrine-of-promissoryestoppel-definition-examples-elements.html> accessed 27 AUSGUST 2015
13 Hughes v. Metropolitan Railway Co. (1877) 2 AC 439 (HL)
10

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

unambiguous language. Beside 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 Texas Bank case14 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 Pickard v Sears15 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.16
The next will be the proprietary estoppels. Proprietary estoppel was developed in
1862 in the case of Dillwyn v Liwellyn. That in this case the son had acquired 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. Later the house not given to the son even the son was
spended money and time to improve the property. 17 While later in the case of Willmott v
Barber18 that the court laid doen five elements in order to established Proprietary
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. Second 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. Lastly, 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
14 Texas Bank [1982] QB 84 ( CA)
15 Pickard v Sears [ 1837] 6 Ad & El 469
16 Inbriefcouk, '' (Introduction to Proprietary Estoppel, ) <http://www.inbrief.co.uk/landlaw/proprietary-estoppel.htm> accessed 27 AUSGUST 2015
17 Dillwyn v Liwellyn (1862) 4 De GF&J 517
18 Willmott v Barber (1880) 15 Ch D 96
11

husband had the knowledge that his wife had already spent a lot of money in improving
the house. But later, after the husband die, the house did not transfer to her and now she
claiming for equitable 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.

3.3 BOUSTEAD CASE DISCUSSION

12

Boustead Treading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd is an

important and landmark case for estoppels in Malaysia. 19 In this case, the appellant had
bought goods from Chemitrade Sdn Bhd (Chemitrade). Later the respondent has entered
into an agreement with Chemitrade 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 Chemitrade. As an evidence for every sale and delivery of goods,
appellant has received copies of invoices from respondent which is issued by Chemitrade.
With that respondent has stamped the invoices with the endorsement that if got any
objection must be made within 14 days of receipt. During the 14 days period when
appellant has received the invoices, he did not made any complain within the said period
nor challenge the respondents imposition of the endorsement. But after the payments on
the invoices have been made by appellant, he refused to make payment on 20 invoices.
Subsequently the respondent denied to acknowledge the statement and argued that since
appellant did not make any objection 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 20 invoices and appealed before the
Federal Court by raising the main issue that whether estoppels would apply to prohibit
the appellant from challenging the legitimacy of the invoices in question. 20 With this, the
Federal Court applied estoppels and held that the factoring agreement that had been
entered between appellant and respondent was a valid agreement. It would be unjust 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
respondents position any reasonable man would be assumed that the appellant had
agreed to the conditions during the 14 days period. This is because the appellant not only
remain silent of not doing any objection but in fact he also made payment on some
19 Boustead Treading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331
20 Cheong may fong, Contract Law In Malaysia (1st edn, Sweet & Maxwell Asia 2010)
97

13

invoices. It is unreasonable and inequitable for appellant to question about the validity of
the endorsement after 14 days.
In this case, the Federal Court 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. Secondly, it
would be whether the person should have acted to his detriment. Gopal Sri Ram JCA had
stated that it is sufficient to prove that a persons conduct was so influenced by the
encouragement that it would be unjust for the representor to claim upon his strict legal
privileges.
In this Boustead 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 inequitable to allow appellant to go back on his promise and challenge
the validity of the invoices. Gopal Sri Ram JCA also further adduced that this doctrine is
said to act as a defense and not as a cause of action.
The doctrine of estoppel is a flexible principle by which justice is done according
to the circumstances. It is a doctrine of wide utility and has been resorted to in
varying fact patterns to achieve justice. The maxim 'estoppel may be used as a
shield but not a sword' does not limit the doctrine of estoppel to defendants alone.
Plaintiffs too may have recourse to it. Estoppel may assist a plaintiff in enforcing
a cause of action by preventing a defendant from denying the existence of some
fact which would destroy the cause of action.21
Thus, the relationship between trust and estoppel is trust is the main element that
formed equity. Trust will be imposed on every individual that have entered into the
agreement voluntarily. In the case of Stack v Dowden22 it supported that the foundation
21 Boustead Treading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331
22 Stack v Dowden [2007] UKHL 17
14

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. Regarding to this element, the claimant has to prove that he has made a material
sacrifice in the form of financial contribution in acquiring the beneficial entitlement.
While on the other hand, Lord Scott 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 unequivocal promise to form proprietary estoppels which had been
supported in the case of Thorner v Major.23 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 Lloyds Bank Plc v Rosset24 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 equally. While in the case of Yaxley v Gotts25, judge also had
held that both of these will coincide with each other as both of these will provide relief
which are derived from equitys intervention. Many judges has supported and followed
on this view as the purpose of equity is to qualify the enforcement of the positive law to
ensure a more complete standard of justice than the law itself would attain.26

3.4 Development of Estoppel in Malaysia

A good example case that clarifies the position of estoppel being used in cases
before the Boustead case, can be seen in the case of MAA Holdings Sdn Bhd & Anor v
23 Thorner v Major [2009] UKHL 18
24 Lloyds Bank Plc v Rosset [1990] UKHL 14
25 Yaxley v Gotts [2000] Ch 162
26 Wan Azlan, Equity and Trust in Malaysia (2nd edn, Sweet & Maxwell Asia 2005) 17

15

Ng Siew Wah & Ors27. 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 principal; 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 inequitable 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 requirement of Foreign
Investment Commission (FIC); although the contract between the parties expressly stated
that the approval or disapproval of FIC will not invalidate the contract. 28 Supporting this
rationale the court quoted the Societe Italo-Belge v Palm Oils29 and Central London
Property Trust Ltd v High Trees House Ltd 30, where Lord Denning J established the
principle for the first time. Taking cue from this, it is reasonable to say that the courts
were not quite ready to impose a wider interpretation on the Doctrine of Estoppel before
the Boustead case.
Just over a decade after the decision in Boustead Trading, His Lordship Gopal Sri Ram
JCA restated that it is incorrect to apply the maxim estoppel used as a shield but not a
sword as preventive the accessibility of the doctrine to defendants alone in the case of
Teh Poh Wah v Seremban Securities Sdn Bhd31. 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. And 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. Before the Boustead case, as discussed earlier,
Malaysian courts did not particularly depart from the traditional notion of the Doctrine of
27MAA Holdings Sdn Bhd & Anor v Ng Siew Wah & Ors [1986] 1 MLJ 170
28 Ibid, p 176.
29 Societe Italo-Belge v Palm Oils [1982] 1 All ER 19
30 Central London Property Trust Ltd v High Trees House Ltd [1956] 1 All ER 256
31 Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701
16

Estoppels. It must be mentioned that in Hong Leong Leasing Sdn Bhd v Tan Kim
Cheong32, the issue whether the Doctrine of Estoppels can be invoked by plaintiffs were
also discussed, although it wasnt the main issue in the case, the learned judge in this case
made a reference to the landmark decision of the High Court of Australia which made a
comment on the High Trees case stating that, even in the traditional notion of the
estoppel, the doctrine may be invoked by a plaintiff, as long as its only a part of the
cause of action, not the cause of action itself.

4.0 CONCLUSION
As a conclusion, the basis of this form of equitable intervention is to estop one
party from enforcing his rights at law in respect of land when to do so would be
32Hong Leong Leasing Sdn Bhd v Tan Kim Cheong [1994] 1 MLJ 177
17

unconscionable in the circumstances. According to Hanbury and Martin, this doctrine is

applicable where one party knowingly encourages another to act or acquiesces in the
others action, to his detriment in the belief that he has or will have some property rights
against the first party. Cases 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 acquiescing in it. Basically, proprietary estoppels require 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.
On the other hand, when we compare to United Kingdom, a similar development
can be seen to have developed in the case of Thorner v Major and others33, in this case
the defendant was allowed to retain the property of the plaintiff (deceased) against the
plaintiffs representatives as it was established in the case that defendant has acted on the
promise that the said property will become his after plaintiffs death, in fact he even made
a will to that effect; however he revoked the will by destroying it, and died intestate.
However, these entire years defendant has been working on plaintiffs 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 sword; Lord
Walker of Gestingthorpe of the House of Lords 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. However for the invocation of proprietary estoppels it is
sufficient that the party raising the doctrine has a connection with a property; and as such
it can be used as sword and not merely as a shield.34
Once again we could observe that both in England and in Malaysia, the doctrine has
been given a wider implication so as to not to restrict its application. Restricting the
application of the doctrine to a defence to a cause of action may give rise occasions
where it would be inequitable to plaintiffs so as to make it advantageous to defendants.
33 Thorner v Major and others [2009] 3 All ER 945
34 Ibid, at at 966.
18

For an example, the tied hands of the plaintiffs unable to enforce their rights whom may
have acted on reliance of defendant's actions. Perhaps, the time has come to widen the
application of the doctrine.

5.0 BIBLIOGRAPHY
CASES
I.

Young v Murphy [1996] 1 VR 279

19

II.

Quah Eng Hock v Ang Hooi Kiam [2000] 5 CLJ 126

III.

Lee PekChoo v Ang Guan Yan [1975] 2 MLJ 146

IV.

Re Adams and Kensington Vestry [1884] 27 Ch D 394

V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.

Palmer v Simmonds [1854] 2 Drew 221

Re Golays Will Trust [1965] 2 All ER 660
McPhail v Doulton [1971] AC 424
Re Rose [1952] EWCA Civ 4
Strong v Bird [1874] 18 Eq 31 ( LR)
Willmott v Barber [1880] 15 Ch D 96 96 (Ch)
Gillet v Holt [2000] 3 WLR 815 ( CA)
Hughes v. Metropolitan Railway Co. (1877) 2 AC 439 (HL)

XIII.

Texas Bank [1982] QB 84 ( CA)

XIV.

Pickard v Sears [ 1837] 6 Ad & El 469

XV.
XVI.
XVII.

Dillwyn v Liwellyn (1862) 4 De GF&J 517

Willmott v Barber (1880) 15 Ch D 96
Boustead Treading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ
331

XVIII.
XIX.
XX.
XXI.
XXII.

Stack v Dowden [2007] UKHL 17

Lloyds Bank Plc v Rosset [1990] UKHL 14
Yaxley v Gotts [2000] Ch 162
MAA Holdings Sdn Bhd & Anor v Ng Siew Wah & Ors [1986] 1 MLJ 170
Societe Italo-Belge v Palm Oils [1982] 1 All ER 19

XXIII.

Central London Property Trust Ltd v High Trees House Ltd [1956] 1 All ER 256

XXIV.

Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701

XXV.
XXVI.

Hong Leong Leasing Sdn Bhd v Tan Kim Cheong [1994] 1 MLJ 177
Thorner v Major and others [2009] 3 All ER 945

BOOK
I.

Cheong May Fong, Contract Law In Malaysia (1st edn, Sweet & Maxwell Asia
2010) 97

II.

Wan Azlan, Equity and Trust in Malaysia (2nd edn, Sweet & Maxwell Asia 2005)
20

17
WEB PAGE
I.

KatKadian-Baumeyer Studycom, '' (Doctrine of Promissory Estoppel: Definition,

Examples & Elements, ) <http://study.com/academy/lesson/doctrine-ofpromissory-estoppel-definition-examples-elements.html> accessed 27 AUSGUST
2015

II.

Inbriefcouk, '' (Introduction to Proprietary

Estoppel, ) <http://www.inbrief.co.uk/land-law/proprietary-estoppel.htm> accesse
d 27 AUSGUST 2015

21