the defendants informed the claimant that they had decided to withdraw from the project. The claimant sought a declaration that a binding agreement had existed between parties and consequential relief but the difficulty was that “no exchange had ever taken place”.33 However, the claimant argued that the defendants were estopped from withdrawing from their implied promise to complete the said contract.34 The defendants countered this by saying that estoppel could not be used to create a cause of action and that there was no pre-existing legal relationship between the parties. The High Court held by a majority that promissory estoppel in appropriate circumstances, create a cause of action, acting as a sword as well as a shield. The High Court also rejected the argument that a pre-existing legal relationship between parties needs to be established before estoppel could be invoked. Both these findings by the majority has radically expanded the scope of promissory estoppel. It may be of interest to note that the English Court of Appeal in the earlier mentioned case of Baird Textiles Holdings Ltd v. Marks & Spencer plc considered Waltons v. Maher but did not apply the principles. Mance LJ observed that the English court could have reached the same decision as in Waltons v. Maher “but on a different reasoning” by referring to the “assumption of an existing fact or right rather than a promise”.35
‘HIDDEN BLADE’ APPROACH IN HONG KONG The Hong Kong Court of Final Appeal adopted an interesting “hidden blade” approach while purporting to apply the doctrine as a “shield” in the traditional sense, in the case of Luo Xing Juan v. Estate of Hui Shui See (herein referred to as “Luo Xing Juan”).36 On the facts, the Court of Final Appeal invited parties to submit on promissory estoppel and later dismissed the appeal on the basis of the doctrine.37 The court also found that “neither common intention constructive trust nor proprietary estoppel could work on the facts”.38 The judgment of Ribeiro PJ acknowledges the distinction between promissory and proprietary estoppel but also notes that the two share many common elements.39 Most
33
Ewan McKendrick, Contract Law (11th Edition, Palgrave Law Masters 2015), 99.
34 35
Ibid.
Baird Textiles Holdings Ltd v. Marks & Spencer plc [2002] 1 All ER 737 at [98]; Yeo Tiong Min, “The Future of Promissory Estoppel in Singapore Law” (2012) Yong Pung How Professorship of Law Lecture at [25].
36 1.
Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR
37
Yeo Tiong Min, “The Future of Promissory Estoppel in Singapore Law” (2012) Yong Pung How Professorship of Law Lecture at [34].
38 39
1 at [55].
Ibid. Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR
significantly, in observing the divergence between English and Australian law on the issue, he points out that the Hong Kong courts were “presently inclining towards the English approach”.40 The requirement for a pre-existing legal relationship to invoke promissory estoppel needed to involve “enforceable or exercisable rights, duties or powers” which would then allow equity to restrain the power of the promisor to act in a manner that is inconsistent with his promise to the promisee.41 This is the “hidden blade” that turns promissory estoppel into an independent cause of action.”42 Ribeiro PJ adopted the pattern of proprietary estoppel instead of promissory estoppel in the remedial analysis, protecting the claimant’s expectations while noting that the court will not grant relief beyond the minimum necessary in order to do justice.43 This is in line with the approach of Walker LJ in Jennings v. Rice.44 According to Professor Yeo Tiong Min (2012), the analysis in Luo Xing Juan “in terms of the restraint of power goes beyond the traditional bounds of promissory estoppel in restraining A’s legal right against B”. Yet, Professor Yeo Tiong Min (2012) in his lecture has noted that Luo Xing Juan “has been criticised” for reasons including the “awarding a very generous remedy compared to the quantum of detriment suffered”.45
PROMISSORY ESTOPPEL IN SINGAPORE While the leading authority on promissory estoppel of Lam Chi Kin David v. Deutsche Bank AG (herein referred to as “Lam Chi Kin”) made no reference to the English authority of Collier v. Wright, it was mentioned in passing by the same court in Gay Choon Ing v. Loh Sze Ti Terence Peter (herein referred to as “Gay Choon Ing”) where the Court of Appeal suggested timely reform for the doctrine of consideration.46 Professor Yeo Tiong Min (2012) has noted that there are similarities between the practical effects of Collier v. Wright and Lam Chi Kin “to the extent that it promotes the use of promissory estoppel as a substitute for consideration to enforce promises”.47 At the same time, Collier v. Wright may
40 41 42
Ibid., at [72].
43
Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR
44
Jennings v. Rice [2003] 1 P & CR 8 (CA), [2002] EWCA Civ
Ibid., at [50].
Yeo Tiong Min, “The Future of Promissory Estoppel in Singapore Law” (2012) Yong Pung How Professorship of Law Lecture at [37]. 1 at [75]. 159.
45
Yeo Tiong Min, “The Future of Promissory Estoppel in Singapore Law” (2012) Yong Pung How Professorship of Law Lecture at [40].
46
Lam Chi Kin David v. Deutsche Bank AG [2011] 1 SLR 800, [2010] SGCA 42; Collier v. P & M J Wright (Holdings) Ltd [2008] 1 WLR 643, [2007] EWCA Civ 1329; Gay Choon Ing v. Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332, [2009] SGCA 3.
47
Yeo Tiong Min, “The Future of Promissory Estoppel in
97