Archive for the ‘Uncategorized’ Category

No presumption of advancement between siblings

September 16, 2018

In Lee Yee Yan Eva v Lee Tak Gate Richard ([2018] HKCFI 1137) a flat was bought in the joint names of a sister and brother (E and R). E provided the entire purchase price. R refused to comply with E’s request to transfer the legal title into her sole name.

Peter Ng J. saw this as a classic purchase price resulting trust. He referred to Lord Browne-Wilkinson’s statement of the law:

‘Under existing law a resulting trust arises in two sets of circumstances: (A) where A … pays (wholly or in part) for the purchase of property which is vested … in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the … property is held on trust for A (if he is the sole provider of the money) … It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer.’ (Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 708A-B).

It all depended on E’s subjective intention ([38]) and, as to this, the evidence supported E’s case; there was no suggestion that she intended R to be an equitable co-owner.

Peter Ng J. also pointed out that there was no authority for the idea of a presumption of advancement between siblings ([27]).

R was ordered to convey the property to E.

Michael Lower

 

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Waiver, mandatory injunctions and building schemes

August 18, 2018

Introduction

A building scheme (such as the scheme embodied in a Deed of Mutual Covenant) creates a local law for the estate it governs. The scheme may require owners of property within the scheme to obtain the consent of a common landlord (in a scheme established for leasehold properties) or of some other body (such as a Management Committee) before making alterations or additions to the property. This arrangement envisages the formal submission of plans as the start of a process leading to consent or refusal to give consent. Carrying work out without the requisite consent is a breach of covenant and can lead to an action for a declaration, damages and the grant of an injunction.

What if an owner makes alterations to property without obtaining the formal consent required but either: (a) the person or body with the capacity to give the consent knew of the work and failed to object to it; or (b) the person or body with the capacity to give consent has repeatedly failed to enforce the restriction with regard to alterations made to other properties within the scheme? Would it be inequitable either to allow the enforcement of the covenant or, if it is enforceable, to grant an injunction requiring the property to be reinstated?

These questions were considered by the Privy Council in Singh v Rainbow Court Townhouses Ltd ([2018] UKPC 19), on appeal from the Court of Appeal of the Republic of Trinidad and Tobago.

 

Singh v Rainbow Court Townhouses Ltd

Mrs. Singh owned a house in the Rainbow Court estate. She held the property under a lease for 199 years. The lease contained a recital to the effect that all of the units in Rainbow Court would be sold under a building scheme under which the covenants would be mutually enforceable. Rainbow Court Townhouses Ltd (‘the company’) was a company formed for the purpose of managing the development.

The lease contained a tenant’s covenant not to make any alteration or addition to the property without the prior written approval of the landlord and of the company. Mrs. Singh carried out works at her house without either consent. The company sought mandatory injunctions requiring Mrs. Singh to remove the alterations she had made.

 

Acquiescence or waiver

Mrs. Singh argued that the landlord and the company had acquiesced in the breach of covenant since: (a) (through its officers and employees) it knew of the work that was to be carried out for several days before it began and had not objected; and (b) the owners of ten other properties within the building scheme had carried out unauthorised alterations to their properties and neither the landlord nor the company had done anything to enforce the covenant against them.

On waiver, Lord Carnwath (with whom the other members of the Privy Council agreed) approved this statement:

‘It is in all cases a question of degree. It is in many ways analogous to the doctrine of estoppel, and I think it is a fair test to treat it in that way and ask, “Have the plaintiffs by their acts and omissions represented to the defendant that the covenants are no longer enforceable and that he is therefore entitled to use his house as a guest house.’

(Chatsworth Estates Co v Fewell [1931] 1 CH 224 at 231 per Farwell J.)

Lord Carnwath commented:

‘The issue was not whether breaches had been overlooked in individual cases but whether these omissions could be said to amount in effect to a representation that the covenants were no longer enforceable.’ ([32]).

The informal exchanges with the company’s employees and officers were not a waiver:

‘The mere failure of two officers to make immediate objection in October 2014 when notified of works due to start within in about a week, without any detailed information of their nature cannot be interpreted as a representation of any kind on behalf of the company.’ ([33])

The courts below had, however, failed to adequately investigate the allegations that the landlord and the company had not objected when other owners within the scheme had carried out unauthorised alterations:

‘On the face of the pleadings there was an arguable case that these were no different in kind to works which had been accepted without objection on other properties. Whether or not this gave rise to a case of waiver in the sense defined by Farwell J, they were at least arguably relevant to the scope of any mandatory order. It is difficult to see how fairness … would be served by an order which required the Appellant to carry out such works without any investigation of their significance, or how they compared to works accepted without objection on other properties on the estate.’ ([35])

The appeal was allowed and the case was remitted to the High Court.

Michael Lower

 

 

No oral modification clauses: Rock Advertising v MWB Business Exchanges Ltd (Part 2)

July 14, 2018

In Rock Advertising Ltd v MWB Business Exchanges Ltd ([2018] UKSC 24) the UK Supreme Court had to consider the effectiveness of a No Oral Modification (‘NOM’) clause (see here for Part 1 of the blog post about this case setting out the facts and the decision). This post considers the underlying principles that the judgments had to confront.

The clause in question provided:

‘This Licence sets out all the terms as agreed between MWB and Licensee. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.’

The UK Supreme Court had to consider whether the parties were bound by an orally agreed modification of the licence agreement between them.

There were two aspects to this question: (1) was the clause binding according so that oral modifications were of no legal effect; and (2) if the clause did not preclude oral modifications, whether a subsequent oral agreement purporting to modify the original agreement indicated an intention to dispense with the NOM clause.

When parties who have accepted a NOM clause agree to an oral modification, they have expressed two conflicting intentions. Which is to prevail? If the courts give effect to a NOM clause are they respecting or denying freedom of contract?

The essential objection to the idea that the clause always precludes effective oral modifications is that this would contravene freedom of contract: ‘Those who make a contract may unmake it. The clause which forbids a change may be changed like any other (Beatty v Guggenheim Exploration Co (1919) 225 NY 380, 387 – 388, Cardozo J.).

Nevertheless, Lord Sumption (and the majority of the Supreme Court) thought that the NOM clause was effective and that the subsequent oral modification was of no effect: ‘Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows … The real offence against party autonomy is the suggestion that they cannot bind themselves as to the form of any variation, even if that is what they have agreed.’ ([11])

Lord Sumption saw three good commercial justifications for NOM clauses:

  1. ‘it prevents attempts to undermine written agreements by informal means’;
  2. ‘it avoids disputes not just about whether a variation was intended but also about its exact terms’; and
  3. giving effect to NOM clauses: ‘makes it easier for corporations to police internal rules restricting the authority to agree [variations]’.

Lord Sumption thought that these justifications should carry weight since ‘the law of contract does not normally attempt obstruct the legitimate intentions of businessmen except for overriding reasons of public policy’ ([12]).

If the parties were to act on an oral variation in the belief that it was effective then estoppel might come into play but:

‘the scope of estoppel cannot be so broad as to destroy the whole advantage of certainty for which the parties stipulated when they agreed upon terms including the No Oral Modification clause. At the very least, (i) there would have to be some words or conduct unequivocally representing that the variation was valid notwithstanding its informality; and (ii) something more would be required for this purpose than the informal promise itself: see Actionstrength Ltd v International Glass Engineering In Gl En SpA’ ([2003] 2 AC 51′ ([16]).

Lord Briggs took a different line on the first of the two questions. He thought that it was conceptually impossible for the parties to impose a formalities requirement on themselves, ‘not to be free, by unanimous further agreement, to vary or abandon [the contract] by any method, whether writing, spoken words or conduct, permitted by the general law’ ([26]).

On the other hand, turning to the second question, Lord Briggs was of the view that ‘an agreed departure [from the NOM clause] will not lightly be inferred, where the parties merely conduct themselves in a non-compliant manner’ ([27]). So normally, as in the present case, the approach of the majority and that of Lord Briggs would lead to the same conclusion.

Where, however, there are circumstances, such as an urgent need to agree a variation without waiting for the production of a written variation, then Lord Briggs thought that an agreement to depart from the NOM clause might be inferred ([30]).

Michael Lower

 

 

‘No oral modification’ clauses: Rock Advertising v MWB Business Exchanges Ltd (Part 1)

June 15, 2018

In Rock Advertising Ltd v MWB Business Exchange Centres Ltd ([2018] UKSC 24) the UK Supreme Court had to consider the effects of a ‘no oral modification’ (‘NOM’) clause in a contract. This blog post (part 1) sets out the facts and the essential features of the judgments. The next blog post (part 2) will set out the underlying issues identified in the judgments.

Facts

MWB Business Exchange Business Centres Ltd (‘MWB’) operated serviced offices in central London. It entered into a contractual licence with Rock Advertising Ltd (‘Rock’) containing the following NOM clause:

‘This licence sets out all the terms as agreed between MWB and Licensee. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect.’

Rock fell into arrears with payment of the licence fee.

Rock’s sole director spoke to a credit controller at MWB to propose a revised schedule of payments. It was found at first instance that an oral agreement had been concluded to vary the licence in accordance with the revised schedule.

 

Issues and conclusion

The question was whether this oral agreement was effective. This raised two fundamental issues in the law of contract: (1) whether the oral agreement could be effective given the NOM clause; and (2) whether Rock could be said to have given consideration for the variation.

The UK Supreme Court found in favour of MWB since the oral agreement was rendered ineffective by the NOM clause. While there was unanimity as to this conclusion, Lord Briggs did not wholly agree with the reasoning of the majority (who agreed with Lord Sumption).

The Court declined to consider the consideration issue. Given the conclusion as to the effect of the NOM clause, any discussion of the question of consideration would have been obiter.

 

The NOM clause: the majority approach

Lord Sumption (and the majority) concluded that:

  1. NOM clauses are effective: ‘the law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation’ ([10]);
  2. ”if the collateral agreement is capable of operating as an independent agreement, and is supported by its own consideration, then most standard forms of entire agreement clause will not prevent its enforcement’ ([14]);
  3. ‘But if the clause is relied upon as modifying what would otherwise be the effect of the agreement which contains it, the courts will apply it according to its terms and decline to give effect to the collateral agreement’ ([14]);
  4. Estoppel might come into play where the parties have acted on the oral variation ([16]).

Lord Sumption declined to deal with the question as to whether or not Rock had given consideration for the variation: ‘[t]he reality is that any decision on this point is likely to involve a re-examination of the decision in Foakes v Beer … if it is to be overruled or substantially modified, it should be before an enlarged panel of the court and in a case where the decision would be more than obiter dictum’ ([18]).

 

Lord Briggs’ analysis

Lord Briggs reached the same conclusions as the majority but for different reasons. Lord Briggs was ready to accept that a contract containing a NOM clause could be orally modified. It all depended on whether the necessary unanimous intention to agree an oral variation despite the NOM clause could be shown.

This intention would not be inferred from the fact that the parties had reached an oral agreement. This intention will not be lightly inferred where the oral agreement was made without express reference to the NOM clause ([27]).

It might be inferred where there was evidence of necessity, where it could be shown that there was some urgent reason for the parties to agree to an oral variation before the written record could be made and signed. The same facts would be equally likely to give rise to an estoppel ([30]).

Michael Lower

Receipt clauses and contractual estoppel

May 14, 2018

Introduction

In Asgain Co Ltd v Cheng Ka Yam ([2018] HKEC 889, CA) Asgain assigned land to CKM and CKY as tenants in common in equal shares. CKM was Asgain’s sole shareholder.

The consideration for the transfer was HK$1.5 million. The memorandum of agreement and the transfer each contained a clause acknowledging Asgain’s receipt of the purchase price.

In fact, however, no payment was made to Asgain at the time of the assignment. CKY subsequently made payments totalling HK$67,000 towards the purchase price.

CKY was later ordered to pay Asgain HK$683,000 (the outstanding balance of her share of the purchase price). She appealed arguing:

(i) that the receipt clauses gave rise to a contractual estoppel in favour of CKY; and

(ii) Asgain’s claim was defeated by section 18(1) of the Conveyancing and Property Ordinance.

 

Contractual estoppel

Lam V-P referred to the Court of Final Appeal decision in Ming Shiu Chung v Ming Shiu Sum ((2006) 9 HKCFAR 334), that of the Privy Council in Prime Sight Ltd v Lavarello ([2014] AC 436) and that in Grundt v Great Boulder Proprietary Gold Mines Ltd ((1937) 59 CLR 641).

Lam V-P also referred to this statement from the 4th edition of Spencer Bower, Estoppel by Representation:

‘an estoppel by convention need not involve any misleading of a representee by a representor, nor is it essential that the representee shall be shown to have believed in the assumed state of facts or law. The full facts may be known to both parties; but if, even knowing those facts to the full, they are shown to have assumed a different state of facts or law as between themselves for the purposes of a particular transaction, then a convention will be established. The claim of the party raising the estoppel is, not that he believed the assumed version of facts or law was true, but that he believed (and agreed) that it should be treated as true’ (at p.197).

Any estoppel was, however, extinguished ‘by a counter estoppel arising from the part payments by [CKY]’ (at [18]). These payments showed that her payment obligation had not been discharged by the receipt clauses. Reliance is not an element of this type of estoppel ([24]).

The contractual estoppel plea failed.

 

Section 18(1) of the Conveyancing and Property Ordinance

Section 18 reads:

‘A receipt for consideration in the body of an instrument shall be a sufficient discharge to the person paying the consideration and, in favour of any other person acting on the faith of the receipt, shall be sufficient evidence of payment.’

The effect of section 18(1) is that a receipt is conclusive at common law but in equity it only gives rise to a rebuttable presumption of payment. The vendor can sue, despite section 18, if there is evidence of non-payment.

Michael Lower

 

Does acceptance of an obligation to fence off access to an easement amount to abandonment>

April 21, 2018

In Annetts v Adeleye ([2018] EWCA Civ 555) the English Court of Appeal had to consider whether a dominant owner’s acceptance of an obligation to fence off access from the dominant tenement to the servient tenement amounted to the abandonment of a right of way.

The dominant tenement (‘the strip’) had formerly been part of a larger portion of land (‘Summerhill’) with the same right of way. The owner of Summerhill imposed the covenant on the sale of the strip to the owner of a neighbouring property.

The court also to consider whether the right of access from Summerhill over the strip to the servient tenement would revive if Summerhill and the strip were again to come into common ownership.

 

Abandonment of an easement

The relevant legal principles are to be found in Gale on Easements which was cited with approval in Dwyer v Westminster CC ([2014] 2 P & CR 7):

‘a. whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;

b. abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have beensuch  as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement;

c. abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;

d. non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.’ (Arden LJ at [8])

 

The fact that the owner of the dominant tenement had no need for the time being to use the right over the servient tenement would also suggest that the right of way had not been abandoned (Arden LJ at [9] citing Dyer).

The search is for the objective intention of the dominant owner as reasonably perceived by the servient owner (Arden LJ at [10]).

Given the principles mentioned above, the question is whether the hypothetical servient owner would have concluded that the right of way from the strip had been abandoned (Arden LJ at [37]). The issue has to be determined at the date of the transfer ([54]).

 
The hypothetical servient owner has some knowledge of the law; this person knows that covenants to erect a fence (being positive covenants) do not run with the land and would not bind a later owner of the strip ([48]).

 

Application to the covenant to fence off access to the servient tenement

Whether building a fence to block access to the right of way is an abandonment has to be considered on a case by case basis in the light of the above principles.

Abandonment ‘is not to be lightly inferred … Even a major obstruction does not necessarily result in abandonment of a right of way’ (Arden LJ at [49]).

It was relevant that the servient owner, who had the most to gain from an abandonment, was not a party to the covenant to build the fence (Arden LJ at [51]).

There was no abandonment.

 

If Summerhill and the strip came into common ownership would the right to cross the strip to get to the servient tenement revive?

It would (Arden LJ at [56]). The position is similar to that where the dominant and servient tenement come into common ownership (Arden LJ at [58]).

Michael Lower

 

 

Seminar: Promissory estoppel as a cause of action? Luo Xing Juan v Estate of Hui Shui See

March 2, 2018

The Faculty of Law at CUHK will host this seminar on 19th March:

20180319_Promissory Estoppel_Poster

Proprietary estoppel: Australian take on proving detrimental reliance in relationship cases

January 24, 2018

In Sidhu v Van Dyke ([2014] HCA 19) V was married to the brother of S’s wife. V lived with her husband in Oaks Cottage which was part of a larger lot of land (Burra Station) owned by S and his wife. V and his wife lived in a homestead which was part of the same lot. S and V began a sexual relationship. V and her husband divorced when the latter discovered the relationship.

S assured V on several occasions that he would transfer Oaks Cottage to her on the sub-division of the lot that included Oaks Cottage. S gave V a written note to confirm that he had promised to give Oaks Cottage to V.

V did not seek a property settlement in her divorce proceedings; S suggested that there was no need for her to do so since she had Oaks Cottage. V carried out substantial unpaid maintenance and renovation works on Oaks Cottage and on other parts of Burra Station. She was also actively involved in the work related to the application to sub-divide Burra Station.  V did not seek full-time employment during the years in which she lived in Oaks Cottage.

The relationship ended after nine years. V brought a proprietary estoppel claim when S and his wife refused to convey Oaks Cottage to V.

The first instance judge (Ward J) found that S made two promises to transfer Oaks Cottage to V by way of gift. These promises were, he found, conditional on the sub-division of the Burra Station lot. The claim failed. First, it would not have been reasonable for V to rely on the promises since the condition could only be satisfied with the consent of S’s wife. Second, Ward J. concluded that V had not been able to prove reliance on the promises. His reading of the evidence was that she might have incurred the detriment even in the absence of the promises.

V succeeded on appeal to the Court of Appeal of the Supreme Court of New South Wales. First, it was not objectively unreasonable for V to have relied on S’s promises. Second, the Court of Appeal relied on Greasley v Cooke: the circumstances were such as to raise a ‘presumption of reliance’. Barrett JA said:

‘Where inducement by the promise may be inferred from the claimant’s conduct, as is the case here, the onus or burden shifts to the defendant to establish that the claimant did not rely on the promise. It was therefore for [S] to rebut the presumption and establish that [V] did not rely at all on the promises in acting or refraining from acting to her detriment’ (Van Dyke v Sidhu (2013) 301 ALR 769 at 786 [83]).

The presumption of reliance was raised and had not been rebutted. Having regard to S’s wife’s interest in the property, the Court of Appeal refused to order the transfer of Oaks Cottage to V. Rather, S was ordered to pay equitable compensation by reference to the value of the disappointed expectation.

S appealed to the High Court of Australia. S contended that the Court of Appeal had gone astray in speaking of a presumption of reliance and thus reversing the burden of proof. Further, equitable compensation should be calculated by reference to the loss suffered in reliance on the promises and not by reference to V’s expectation.

The High Court of Australia rejected the notion that there could be a presumption of reliance:

‘In point of principle, to speak of deploying a presumption of reliance in the context of equitable estoppel is to fail to recognise that it is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract’ ([58]).

There was no shifting of the burden of proof as regards reliance; the onus remained on V ([61]). Rather, ‘[t]he real question was as to the appropriate inference to be drawn from the whole of the evidence, including the answers elicited from the respondent in the course of cross-examination’ ([64]).

Put another way, the question was ‘whether, when all the facts are in, the court is satisfied on the balance of probabilities that the promises in question contributed to the respondent’s conduct in deciding to commit to her relationship  with the appellant and adhering to that relationship (with all that that entailed) for eight and a half years’ ([66]).

Nevertheless, V was able to show reliance: ‘A review of the whole of the evidence shows that the respondent had made out a compelling case of detrimental reliance’ ([67]). It was enough that the promises contributed to the decision by V to carry out work on the property. The promises did need not to be the sole cause of the detriment, merely to have influenced the decision (Amalgamated Investment & Property Co Ltd (In Liq) v Texas Commerce International Bank Ltd [1982] QB 84 at 104 – 105). In Steria Ltd v Hutchison ([2007] ICR 448) Neuberger LJ said that the representation need only have been ‘a significant factor’. V was able to show that this was the case.

On the measure of relief, the High Court said that, ‘[t]he requirements of good conscience may mean that in some cases the value of the promise may not be the just measure of relief ([83]). ‘If the respondent had been induced to make a small, readily quantifiable outlay on the faith of the appellant’s assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay’ ([84]).

This was not the right approach in this case, however, since the detriment involved ‘life-changing decisions with irreversible consequences of a profoundly personal nature’ (Donis v Donis (2007) 19 VR 577 at 588 – 589 [34] per Nettle JA).

‘[I]n the circumstances of the present case … justice will not be done by a remedy the value of which falls short of holding the appellant to his promises … [W]here the unconscionable conduct consists of resiling from a promise or assurance which has induced conduct to the other party’s detriment, the relief which is necessary in this sense is usually that which reflects the value of the promise ([85]).

There was nothing conditional about the promises. These were ‘expressed categorically so as to leave no room for doubt that he would ensure that the subdivision would proceed and that the consent of the appellant’s wife would be forthcoming’ ([86]).

Michael Lower

 

Proprietary estoppel in relationship cases: assurance or not?

January 14, 2018

Cook v Thomas ([2010] EWCA Civ 227) concerned a proprietary estoppel claim by Mr and Mrs Thomas against Mrs. Cook (Mrs Thomas’ mother). Mrs. Cook owned a farmhouse with a small amount of farmland and outbuildings (‘the property’). Mrs. Cook (‘the claimant’) allowed Mr and Mrs Thomas (‘the defendants’) to place the mobile home they lived in on the property. When that was damaged by a storm, the claimant allowed the defendants to move into the farmhouse. The defendants repaired and improved the farmhouse and farmed the land. The parties fell out and the claimant sought to evict the defendants.

The defendants relied on proprietary estoppel. They alleged that they had been given assurances that: (i) they would be allowed to remain in the property during the claimant’s life; and (ii) they would inherit the property on her death. They claimed that their work on the property was carried out in reliance on these assurances.

The first instance judge found that the claimant had given the defendants permission to live in the property and to farm the land. She had not, however, given them any assurance that they had an irrevocable permission to remain. The defendants appealed and the Court of Appeal had to consider whether the first instance judge had been entitled to reach his conclusion that there was no assurance.

The Court of Appeal (Lloyd LJ giving the principal judgment) found that the first instance judge had been entitled to decide in favour of the claimant. The evidence pointed to ‘a limited and informal family arrangement’ ([63]).

The claimant told the defendants that ‘you know this is all going to be yours when I am gone anyway’ ([72]). This did not give rise to a proprietary estoppel: (a) because it was not taken as an assurance but as an indicator of current intent; and (b) because there was no detrimental reliance upon it ([72]).

There was no room to make use of the Greasley v Cook presumption of reliance: ‘In the present case, there is no need for a presumption. The matter was fully investigated in evidence … A presumption is only relevant in the absence of the relevant evidence’ ([77]).

Lloyd LJ acknowledged that, in assessing the defendant’s case, the facts had to be looked at as a whole as at the time when the claimant sought to act inconsistently with the alleged assurances. The judge had to ‘come to a view as to whether the combined effect of what the Claimant had said and done, on the one hand, and the overall conduct of the Defendants on the other, meant that the Claimant could not turn the Defendants out’ ([97]).

There was no evidence to show that the judge had failed to take account of any relevant conduct ([99]): ‘Nothing had been done which was relevant in support of the Defendants’ case, unlike the history in Thorner v Majors [2009] UKHL 18 where the claimant had been helping the deceased voluntarily for years before anything was said to him that could amount to a promise or representation’ ([99]).

The relevant assurances were said to have been contained in four promises alleged to have been given by the claimant to the defendants. The defendants criticised the first judgment for assessing the evidence in relation to each but for not giving a separate analysis of the cumulative effect of the promises. Lloyd LJ rejected this criticism: ‘It was not necessary for the judge, having dealt carefully and at length with the relevant conduct in making his findings as to the sequence of events, to set out any extended analysis of the matter looked at as a whole’ ([101]).

It was legitimate for the judge to have regard to the lapse of time between the alleged representations and the conduct said to amount to detrimental reliance: ‘If there is a noticeable delay, it may be capable of explanation, such as for reasons of lack of funds or otherwise, but absent such a reason given in evidence, a significant delay may well point to a lack of connection between the representation and the acts said to have been done in reliance on it’ ([103]).

Alternative claims for an interest under a common intention constructive trust and in unjust enrichment failed. There was no common intention and the defendants had done the repair and improvement works for their own benefit, to make the house habitable for themselves.

Michael Lower