WHO SEEK FOR EQUITY MUST DO THE EQUITY: EQUITABLE ESTOPPEL

The maxim who seek for equity must do the equity arises in promissory estoppel
where a promisor by his declaration or negligence conduct caused another person to
believe a thing to be true should not be allowed to deny the facts he alleged to exist. 1 This
maxim refers to the promisor’s future conduct. It means that the doctrine prevents someone
from denying the truth of statement where the party who made such promise has to carry out
his promise. Traditionally, there are several requirements of promissory estoppel, which are
promisor must give clear & unambiguous promise or assurance, promisor intended to affect
the legal relations between parties, promisee must have acted on that promise made by the
promisor and promisee acts upon the promise altering his position to his detriment.2 It can be
referred in the case of Central London Property Trust Ltd v High Trees House
Ltd [1947]3 where during The World War II due to difficulty in finding tenant, the landlord and
lessor agree that the amount to be paid is half of the full payment. But after war, the flats
became occupied tenants, thus the landlord claim for full amount of rental including at the
time of war. The court held that the landlord estopped from claiming full amount during the
war.

The doctrine also can be referred in the case of Al Rajhi Banking & Investment
Corp (M) Bhd v Hapsah Food Industries Sdn Bhd & Ors [2012]. 4 The defendant was
trying to bring a case on a promissory estoppel and doctrine of forbearance, specifically it
was apparently represented to Hapsah that if Hapsah could obtain the notices of
assignments, the plaintiff would not insist on its strict legal rights and gold the facilities in
abeyance. The court held that, Hapsah had fail to perform his part of obligation in the
contract to comply with the requirement set out by the plaintiff. This is due to the
misrepresentation. Court could not find any sympathy for Defendant since Defendant had
never intended to honour the agreement with plaintiff. In the said case, the judges saw no
point of denying the equitable right of the plaintiff who raised the defence of promissory
estoppel as a cause of action to which the right may be lost to him if ever the defendant plea
in court.

The other example of local jurisdiction regarding the doctrine can be illustrated in SS
Saw v Siew Heen Yuen & Ors [2009].5 The defendants are the occupier of a plaintiff’s land
who had living on the land even before the land was transferred to the plaintiff. The

1
Zuraidah Ali et al: Equity & Equitable Remedies in Malaysia Chapter 5
2
Enacting Promissory Estoppel into the Malaysian Law: Towards More Certainty in Litigation. Journal of Politics
and Law; Vol. 5, No. 2; 2012
3
[1947] KB 130
4
[2012] 1 MLJ 115
5
[2009] 2 MLJ 214
defendants paid plaintiff ground tenant of RM 45.90 a month. The rates and assessment in
respect of the premises to DBKL were paid by the defendants. The plaintiff had issued
multiple notices to the defendants to vacate the said land. When they fail to, plaintiff
commenced proceeding to apply for an order of vacant possession and for the defendant to
pay plaintiff double the amount of original rent until they vacant the premises. Among the
issue were whether occupant acquired tenancy coupled with equity or equitable estoppel. In
answering the question, court stated that tenancy with equity or equitable estoppel thus only
arises if there is evidence that the plaintiff had required any of the defendants or allowed
them to expend money on the said lands under an expectation created or encouraged by
him that they would be able to remain there. If this is the case, landowner is barred from
taking action contrary to the expectation. Consequently, if tenancy coupled with equity is
established, landowner must first satisfy that equity before he can recover the land. Court
held that there were no such representation by plaintiff. The payment of rates and
assessment were only just an incident of the occupation of the premises imposed by and
payable to the local authority. The notices of to vacate the premises means that the consent
has been withdrawn. Court further stated that it was unjust and inequitable for these
defendants to be paid any compensation. They had been enjoying the land for a very long
time for a very small amount of rent. If there was any equity, it should be in favour of the
plaintiff. Based on the case, it clearly shows that when the court adopted the maxim of
“those who comes to equity must do the equity”, the party who seeks for justice from the
court must have perform his own obligation and be prepared to act fairly to other party if the
court obliged him to do so.

Nevertheless, the case of promissory estoppel can be solved only with the adoption
of the maxims of equity. This is because, as an equitable doctrine, promissory estoppels
cannot be interpreted freely by the Malaysian courts. This rendered difficulty to the
Malaysian judges since the rules of equity make the doctrine becomes more rigid and create
a certain restrictive barrier during the judgments. 6 In addition, Section 3(1) of the Civil Law
Act 19567 provides that the principles of equity can only be applied when there is a lacunae
in the Malaysian Law and it is suitable with the local circumstances. Besides, section 64 of
Contract Act 19508 provides the almost similar principle in nature as promissory estoppel
and the only difference is that section 64 statutorily provides for an actual contractual
agreement, and not only by the promise. Both the general provision of Section 3(1) of the

6
Enacting Promissory Estoppel into the Malaysian Law: Towards More Certainty in Litigation. Journal of Politics
and Law; Vol. 5, No. 2; 2012
7
Section 3(1) of the Civil Law Act 1956
8
Section 64 of Contracts Act 1950
Civil Law Act 1956 and Section 64 of the Contracts Act 1950 had led to the creation of
restrictions towards the reception of Estoppels in Malaysia.

The points to take into account is when the maxim been adopted, the doctrine of
promissory estoppel can be exercised widely. Thus, the judges themselves may decide their
judgments with conscience according to the circumstances of each cases. However, it can
be seen that the promissory estoppels would help in the exercised of the Section 64 of
Contracts Act 1950. By applying the maxim of “who seek to equity must do the equity” in the
doctrine of estoppel, a promisee, who has suffered from acting upon a promise, may seek
justice from the court rather than wait until a claim is filed against him.
REFERENCES

Contract Act 1950: International Law Book Service: (2006)

Civil Law Act 1956: Percetakan Nasional Malaysia Bhd (2006)

Talaat, W. I. (2011). The Continuing Evolution of Promissory Estoppel: From Rigidity to Flexibility.
Journal of Politics and Law, 20-26.
SLIDE ESTOPPEL

DEFINITION OF DOCTRINE

The maxim who seek for equity must do the equity arises in promissory estoppel where a
promisor by his declaration or negligence conduct caused another person to believe a
thing to be true should not be allowed to deny the facts he alleged to exist.

ESSENTIAL OF DOCTRINE

This maxim refers to the promisor’s future conduct. It means that the doctrine prevents
someone from denying the truth of statement where the party who made such promise
has to carry out his promise.

DOCTRINE’S REQUIREMENT

 promisor must give clear & unambiguous promise or assurance,

 promisor intended to affect the legal relations between parties,
 promisee must have acted on that promise made by the promisor
 promisee acts upon the promise, altering his position to his detriment

CASE

Central London Property Trust Ltd v High Trees House Ltd [1947]

Al Rajhi Banking & Investment Corp (M) Bhd v Hapsah Food Industries Sdn Bhd & Ors
[2012]

SS Saw v Siew Heen Yuen & Ors [2009]

RESTRICTIONS TOWARDS THE RECEPTION OF ESTOPPEL IN MALAYSIA.

Section 3(1) of Civil Act 1956

Section 64 of Contract Act 1950