Recent Development in Malaysia and Its Comparison With England

From Bousteads case, it can be taken as a clear indication that the doctrine of
promissory estoppel is recognized in Malaysia. By enacting this doctrine into the
Malaysian law, it is beneficial because the implementation can be regarded as a
fruitful and advantages for the development of Malaysian legal system. The wordings
by Gopal Sri Ram JCA in Boustead shows that this doctrine is flexible and Malaysian
Courts have a very wide power in applying this doctrine, which counter the
limitations set out under the traditional approaches in High Trees1 and Hughes2 cases.
Malaysia being common law country, the development of this doctrine can be said as
a continuous phase. This is because since this doctrine itself is of a flexible in a way,
whereby the judgment differs in accordance with the conscience of the judge. This
can be seen in the very recent Court of Appeal judgment in Derek Victor Cawton &
Anor v Fatimah Mohd Hashim.3 The appellants in the current case who were nonMalays contended that they were foreigners and thus uninformed and unaware of the
status of the disputed land as Malay Reservation land, as well prohibitions under the
Malay Reservation Enactment.
In this case, Abdul Wahab Patail JCA limits application of the words the time has
come in Bousteads case by which it does not mean the courts have wide
jurisdictions to legislate or make law in contrast to statutory law. The equitable
doctrine of estoppel was limited to obtaining justice that is permitted by the law.
Equity is thus cannot be the barrier that stands in the administration of objective of
statutory law. From the said case, the judge ruled that the doctrine of promissory
estoppel cannot be applied at will as it would to anarchy. Therefore, it is apparent that
the interpretation of the words in Boustead in this case has restricted the wide utility
of the doctrine of promissory estoppel, especially in regards to will.
The attempt by the Court in Boustead, to mark this doctrine as an open doctrine may
cause conflict with the fundamental principles of equity, in regards to, such as equity
follows the law, he who seeks equity must come with clean hands, equity acts in
1 Central London Property Trust Ltd v High Tress House Ltd [1947] KB 130
2 Hughes v Metropolitan Railway Co. [1877] 2 AC 439
3 [2015] 5 CLJ 788

personam and more. This position has departed from the traditional view in both High
Trees and Hughes case whereby only parties in existing contractual relationship can
invoke this doctrine. Following case in Tang Heng Hua v. Tanah Manis Realty Sdn
Bhd,4 the defendant who being occupier of the registered properties as tenant had
used the property to carry out businesses. The tenancy agreement between the
defendant and the plaintiff had come to an end whereby the respondent continued to
occupy the property on the ground that there was an oral agreement.
The judges adopted the maxim he who seeks equity must come with clean hands.
Since the material facts show that the defendant had come to court with tainted hands,
the plaintiff is thus failed to apply this equitable doctrine. It is clear that the principle
means the party who seeks for justice must come in good faith and not malice. In the
present of express terms, for a waiver to operate, there must be a presence of
knowledge or obligation in order to render as a representation. Based on this case, it is
clear that the doctrine of promissory estoppel is still applied widely by which justice
is done varies in accordance with the circumstances of the case.
A clear cut to its modern application is transparent is the recent Court of Appeal Case
in Amar Singh Sundar Singh & Ors v. Jivanjit Kaur Sohan Singh. 5 In the present
case, the respondent, being the registered owner had inherited a piece of land from her
late husband, the appellants brother. The appellant contended that the said property
belonged to him and his sons as his mother told him so. There was no existence of
contractual agreement but merely a family arrangement. The respondent claimed that
the land is held under a legal title and subjected to the beneficial and equitable
interests not only of himself but also of his sons.
The Court has made reference to English cases in ascertaining the doctrine of
promissory estoppel. As unconscionability is being the main reason in permitting
this doctrine instead of detrimental element, like the old days in High Trees and
Hughes, therefore it shows that the doctrine is now unclear and the thin membrane
that surrounds its restrictions appears more ambiguous and unclear. However, His
Lordship in Boustead too emphasized that the ultimate focus in litigating this doctrine
is the attainment of fair and justice itself. One cannot be deprived from justice due to
4 [2011] 10 CLJ 750
5 [2010] 7 CLJ 285

the perimeters and subsequently, the element of detrimental reliance is no longer form
part of the doctrine as it would constitute inequity due to its strict usage.
In comparison with other common countries however, namely in England, it can be
said that the application of this doctrine is more strict in a sense that the judges are
more interested in certainty and security of commercial transactions compared to the
elements of good faith, justice and fairness. The most significant departure would be
the detrimental reliance element. The modern approach extended to omission as well.
It seems like the English courts are unwilling to depart from the extreme condition
that requires detrimental reliance. Therefore, it shows that the Malaysian courts are
more inclined to moderate view in taking into considerations of the elements of good
faith, justice and fairness, which are the fundamental principles of equity itself.
In a nutshell, the continuous evolution of this doctrine has progressed through many
developments, which mainly affects the limitations set out in the landmark cases of
High Tress and Hughes cases. Gopal Sri Ram JCA in Boustead plainly indicates that
the Malaysian Courts are ready to extend the application of promissory estoppel to a
non-contractual parties, it thus illustrates that the courts are more determined to
employ this doctrine outside its traditional approach, to any kind of legal
relationship.6

References:
Wan Izatul Asma Wan Talaat, 'The Threats To The Limitations Outlining The Present
Parameters Of Promissory Estoppel: A Comparative Study' [2012] 3(6) 159
Wan Izatul Asma Wan Talaat, 'The Boustead Case: A Departure From The Traditional
Parameters Of The Equitable Doctrine Of Promissory Estoppel' [2003] 3 CLJ i

6 Wan Izatul Asma Wan Talaat, 'The Threats To The Limitations Outlining The
Present Parameters Of Promissory Estoppel: A Comparative Study' [2012] 3(6) 159