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Petitioner: Low Heng Leon Andy VS Respondent: Low Kian Beng Lawrence (administrator of the JUDGMENT
Court Name: Court of Appeal of the Republic of Singapore Judge(s): Andrew Phang Boon Leong, Steven Chong Title:Low Heng Leon Andy vs Low Kian Beng Lawrence (administrator of the
JUDGMENT
Reported As: 2018 P.S.C. 1572 Result: Appeal allowed Judgment JUDGMENT ANDREW PHANG BOON LEONG, JA ---Introduction This is an appeal against the decision of the High Court Judge ("the Judge") to allow an appeal by Low Heng Leon Andy ("the Appellant") against the decision of the assistant registrar ("the AR") to, among other things, award the Appellant equitable compensation in the sum of $84,000. The AR had assessed this amount to be the appropriate sum to satisfy the Appellant's equity that had arisen following the Appellant's successful claim in proprietary estoppel brought against the estate ("the Estate") of his grandmother, One Tan Ah Kng ("the Deceased"), in Suit No, 252 of 2011 ("the Suit"). The Judge increased the damages awarded to $100,000: see Low Heng Leon Andy v. Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased) f2017] SGHC 200 ("the GD"). However, the Appellant remains dissatisfied with the quantum awarded and now brings this appeal, seeking an even higher sum Jf equitable compensation. Low Kian Beng Lawrence ("the Respondent"), who was the administrator of the Estate, was unrepresented and absent during the first instance assessm ent proceedings before the AR, the registrar's appeal before the Judge, and also during the appeal before us. 2. For the reasons that follow, we allow the appeal, albeit only to the extent that we increase the equitable compensation awarded to the appellant to a sum of $140,000. Background. 3. We first set out the facts relevant to this appeal. A fuller account of the background and procedural history of the present dispute may be found in the GD (at [4]--[12]). 4. The Appellant has, since his birth in 1984, lived in a five-room Housing Development Board
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("HDB") flat located at Pock 306 Hougang Avenue 5 # 02-355 Singapore 530306 ("the Flat") until he was evicted by the Respondent in July 2009. The Flat was held in joint tenancy by the Deceased and one Low Eng Cheng, who is one of the Appellant's aunts ("the Aunt"). The Aunt and the Deceased had previously moved out cf the Flat in 1992, but returned to live with the Appellant in 2005. The Aunt passed away on 7th September, 2007, while the Deceased passed away on 28th November, 2008. This left the Estate, which the Appellant was not a beneficiary of, as the sole legal and beneficial owner of the Flat. 5. According to the Appellant, the Deceased had, before her passing, frequently emphasised to the Appellant, in the presence of his relatives and their family doctor, that the Flat was not to be sold in the event of her demise, and that the Appellant would be free to continue staying in the Flat for as long as he wished. The Deceased also expressed her intention to leave everything in the Flat to the Appellant. 6. In reliance on the promises made by the Deceased, the Appellant took care of both the Aunt (who was suffering from ovarian 'cancer) and the Deceased (who was suffering from tuberculosis) during the entire period from 2005 till their deaths in 2007 and 2008, respectively. The Appellant claimed to have suffered from the following detriments:--- (a) First, the Appellant spent time and effort to care fog" the Aunt and the Deceased, and took on the responsibility of paying for all of the household expenses, including food and utilities, as well as the medical expenses for the Deceased. He did not claim these expenses from a sum of $40,000 that the Aunt had left in her bank account, to which she had given the Appellant access for the purposes of maintaining and providing for the Deceased. He also refrained from asking his other family members to contribute to the expenses. (b) Second, the Appellant refrained from seeking regular full-time employment, and subsequently also gave up his employment as a financial planner with Manulife Singapore (even though it allowed for relative flexibility in working hours) in order to take care of the Deceased on a full-time basis. (c) Third, the Appellant claimed that while taking care of the Deceased, given that the Deceased had contracted tuberculosis, he had to endure the "mental anguish" that came with the fear of contracting tuberculosis himself. The Appellant was also compelled to sacrifice his social life by avoiding social contact in the entire period when taking care of the tuberculosis-stricken Deceased. 7. Following the Appellant's eviction in July 2009, he brought the Suit, which is a claim in proprietary estoppel against the Estate. In the Appellant's original Statement of Claim filed in February, 2010, the Appellant sought to recover only the moneys expended in taking care of the Deceased during her lifetime. However, the Appellant subsequently amended his Statement of Claim in March, 2013 to include an additional claim for equitable compensation for the loss of his life-long licence to reside in the Flat. 8. On 24th August, 2016, the Appellant obtained an order for interlocutory judgment against the Estate with damages to be assessed. 9. At first instance before the AR, the Appellant dropped his claim for the moneys expended in taking care of the Deceased, and focused only on his claim for the equitable compensation for the loss of his life-long licence, which he claimed is best quantified by reference to the rent that he has been paying in respect of his alternative accommodation following his eviction from the Flat. To that end, the Appellant sought a sum of $420,000. 10. The AR awarded the Appellant damages of $84,000, taking the view that a sum equivalent to rental of $1,000 per month for a period of seven years from the time when he was evicted from the Flat was sufficient to satisfy the equity that arose as a result of the detriment suffered by the Appellant. The AR also ordered the costs of the action to be taxed on a District Court scale if not
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agreed. The Appellant appealed. The decision below 11. On appeal, the Appellant again limited his claim to the recovery of a sum representing equitable compensation for the loss of his life-long licence. The Judge allowed the appeal, increasing the quantum of equitable compensation awarded to $100,000 and awarding the Appellant the costs of the appeal fixed at $5,000. The Judge also ordered that the sum of $62,089.03 that the Estate had paid into Court be paid out to the Appellant, and affirmed the costs order below. 12. In arriving at his decision, the Judge endorsed the expectation-based approach -- which looks to what the claimant's position would have been had the defendant actually acted in accordance with his representations -- on the ground that the Appellant here had formed the expectation that he would be allowed to live in the Flat for as long as he wished (GD at [19] and [20]). The Judge then affirmed the structured method adopted by the AR, which involved multiplying a base rental sum by a multiplier reflecting a time period in order to derive the cost of residing in an alternative flat for the applicable time period (at [20]). 13. Insofar as the applicable multiplicand was concerned, the Judge held that the figure determined by the. AR of $1,000 was too low, and preferred a base sum of $1,500 (at [23]). The Judge found that given that the Appellant's expectation was to live in a furnished flat, the AR should have awarded the additional $500 per month associated with the hiring of furniture, fittings and fixtures for the Appellant's flat, on top of the $1,000 per month for the basic rental sum (at [21]). But the Judge declined to adopt the Appellant's proposed sum of $2,400 per month, which was based on a newspaper clipping showing that the median rent of a five-room HDB flat in Hougang in the fourth quarter of 2014 was $2,400 (at [22]). 14.As for the multiplier, the Judge affirmed the AR's decision to select a multiplier of seven years. The Judge considered the multiplicand of between 10 to 14 years proposed by the Appellant to be too high, as the Appellant had only taken care of the Deceased for about three years, and hence such a multiplicand would lead to a remedy that was disproportionate to the detriment that the Appellant had actually suffered (at [24]). This resulted in a final sum of $126,000. However, the Judge held that this sum should be moderated to $100,000 for the following reasons:-- (a) The equity had been partly satisfied given that the Appellant had been staying in the Flat at the material time on a rent-free basis, and a benefit that a plaintiff acquires due to the conduct by which he satisfies the reliance element of a proprietary estoppel claim must be accounted for when determining the appropriate remedy (at [26] and [291). (b) The detriment in fact suffered by the Appellant was less than what he had claimed during the hearing. Although the Appellant submitted that he had spent some $80,000 on expenses for the Deceased, the Statement of Claim only stated that he had spent a far lower sum, i,e,, $18,350.50 (at [31]). Also, even in respect of this lower sum, the evidence adduced was not cogent (at [32]). Finally, a domestic helper had been hired to take care of the Deceased, such that the Appellant's burden had in fact been partially alleviated (at [33]). Our decision 15. We now turn to explain our decision in this appeal, which we preface with a brief discussion of the relevant legal principles that should guide the Court's task of fashioning an appropriate remedy to satisfy the equity that arises upon finding that a claim in proprietary estoppel is made out. The applicable principles 16. In the decision of this Court in Lim Chin San Contractors Pte. Ltd. v. Shiok Kim Seng (trading as IKO Precision Toolings) and another appeal J20131 2 SLR 279 ("Lim Chin San (CA)"), the following principles were set out (at [42]):--- (a) Upon the equity arising, its value and how it should be satisfied are matters for the Court's
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discretion. (b) In exercising this discretion, the Court should have regard to all the circumstances, including the expectation upon which the plaintiff has acted and the specific detriment he has suffered. (c) In fashioning the remedy the Court must ensure proportionality between the expectation, the detriment and the remedy. (d) The Court must recall that its task is to satisfy the equity that it considers has arisen. It follows that the strength of the equity will be a relevant consideration. This is another way of looking at the "maximum extent of the equity" which the remedy must satisfy. (e) The Court should also be mindful of the great flexibility it has at its disposal in fashioning the appropriate remedy. It may give effect to the parties' expectations (common or otherwise); or it may limit the remedy to maintain an element of proportionality, or because it considers that the equity has been satisfied by enjoyment or even exhausted. (f) Subject to the above, the Court's aim, having identified the maximum extent of the equity, is to do the minimum required to satisfy it. See [Hong Leong Singapore Finance Ltd. v. United Overseas Bank Ltd. [20071 1 SLR(R) 292] at [240], [244] to [249] and authorities cited there. 17.It is evident from the foregoing statement of principles that the exercise of assessing the appropriate remedy to satisfy the equity that has arisen in a proprietary estoppel claim is an intensely fact-specific one, with the Court's exercise of its discretion being ultimately guided by the twin lodestars of achieving proportionality between the expectation, the detriment and the remedy, as well as doing the minimum required to satisfy the maximum extent of the equity and do justice between the parties. 18. We note that the Judge similarly recognized this, having also referred to the observations at [42] of Lim Chin San (CA) (GD at [16]). However, the Judge proceeded to quote, at [18] of the GD, the following observations of Robert Walker LJ (as he then was) in the English Court of Appeal decision in Jennings v. Rice and Others [2003] 1 P & CR 100 ("Jennings") at [50]-[51] with approval:-- [50] To recapitulate: there is a category of case in which the benefactor and the claimant have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract. I have already referred to the typical case of a carer who has the expectation of coming into the benefactor's house, either outright or for life. In such 'a case the Court's natural response is to fulfil the claimant's expectations. But if the claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, the Court can and should recognise that the claimant's equity should be satisfied in another (and generally more limited) way. [51] But that does not mean that the Court should in such a case abandon expectations completely, and look to the detriment suffered by the claimant as defining the appropriate measure of relief. Indeed in many cases the 'detriment may be even more difficult to quantify, in financial terms, than the claimant's expectations. Detriment can be quantified with reasonable precision if it consists solely of expenditure on improvements to another person's house, and in some cases of that sort an equitable charge for the expenditure may be sufficient to satisfy the equity ... But the detriment of an ever-increasing burden of care for an elderly person, and of having to be subservient to his or her moods and wishes, is very difficult to quantify in money terms. Moreover the claimant may not be motivated solely by reliance on the benefactor's assurances, and may receive some countervailing benefits (such as free bed and board). In such circumstances the Court has to exercise a wide judgmental discretion. [emphasis added] 19. The Judge then set out the following principles that would guide the rest of his analysis (GD at [19]):-- (a) Where the plaintiff has formed an expectation, based on a mutual understanding with the benefactor, of coming into the latter's home, it may be appropriate to adopt the expectation-
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based approach. (b) However, the expectation-based approach does not require the Court to give complete or direct effect to the relevant expectation. A fundamental consideration is proportionality between the expectation, the detriment and the remedy. The aim is to award the remedy which does the minimum necessary to satisfy the equity which has arisen. 20. In our judgment, in so far as the effect of the Judge's reference to Walker LJ's judgment in Jennings and his summary of the applicable principles is to suggest that the Court should, in attempting to satisfy the equity, always fashion a remedy that first seeks to fulfil the claimant's expectation and honour the defendant's promise before turning to consider the detriment suffered in various specific situations, the Judge might, with respect, have overstated the legal position. 21. There appear, in fact, to be two different approaches towards assessing the appropriate remedy to enforce in satisfaction of the equity that has arisen in a claim in proprietary estoppel. One school of thought is that the claimant's expectation should be the starting point of the assessment exercise (i,e,, the expectation-based approach). As we have just noted, this is the approach adopted by the Judge in the present case. Another school of thought is that the claimant's detriment should be the starting point instead (i,e,, the reliance-based approach). 22. Indeed, there is support for both views in both the case-law. as well as the legal literature. In relation to the expectation-based approach, Walker LJ's judgment in Jennings has, for example, been cited and applied in the English Court of Appeal decisions in Powell and another v. Benney [2007] EWCA Civ 1283 ("Powell') (at [19]-[23] and [25]-[26]) and Suggitt v. Suggitt and another [2012] EWCA Civ 1140 (at [43]-[44]), as well as the English High Court decision in Davies v. Davies and others [2015] EWHC 1384 (Ch) (at [49]-[54]). The expectation-based approach also finds support - in so far as the legal literature is concerned in K.R. Handley, Estoppel by Conduct and Election (Sweet & Maxwell, 2nd Ed., 2016) at paras 11-034-11-035, where the learned author refers to an array of Australian decisions, that affirm the proposition that the Court should prima facie give effect to the reasonable expectations of the claimant. However, it is important to note that the expectation-based approach has not received unqualified and universal support. 23. Major proponents of the reliance-based approach appear to include the learned authors of Sean Wilken QC & Karim Ghaly, The Law of Waiver, Variation, and Estoppel (Oxford University Press, 3rd Ed., 2012) ("Wilken & Ghaly"), who observe (at para 11.94) that ... [t]he prime aim of the discretion should be to prevent detriment. Where the detriment that [the claimant] would suffer is easily ascertained and quantified then [the claimant's] expectations ought to be relevant only as a limit on the relief that the Court may grant. Even where detriment is difficult to quantify the Courts should attempt to create a remedy which is proportionate to what [the claimant] has given up in reliance on the assurance. Only in circumstances where the detriment is intangible and of comparable magnitude to a lost education or a lost career should it be necessary to look to [the claimant's] expectations in order to prevent the unconscionable assertion of [the defendant's] rights. 24. In other words, the Court should look first towards what detriment the claimant has suffered, and then turn to consider the expectation held by the claimant only if the detriment suffered is so uncertain that it is unquantifiable or so significant that it might exceed the claimant' expectation. This approach, for example, arguably find support in the judgment of Hobhouse LJ.(as he then was) ii the English Court of Appeal decision in Sledmore v. Dalb, [1996] 72 P & CR 196 at 208-209, citing the High Court c Australia decision of Commonwealth of Australia v. Verwayei (1990) 95 ALR 321 ("Verwayen") at 333 per Mason CJ. 25. We would also observe, parenthetically, that the reliance-based approach advanced in Wilken & Ghaly arguably finds further support in the approach propounded by Prof. Ben McFarlane in his treatise, The Law of Proprietary Estoppel (Oxford University Press, 2014 ("McFarlane"), where he
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frames the entire inquiry in the context of the three questions set out by Scarman LJ (as he then was) in the English Court of Appeal decision in Crabb v. Arun District Council [1976] Ch 179 ("Crabb") at 193, which require the Court to consider: "First, is there an equity established? Secondly, what is the extent of the equity, ii one is established? And thirdly, what is the relief appropriate to satisfy the equity?" (see McFarlane at para 7.01). In the context of addressing the second inquiry, Prof. McFarlane, Advocates the application of a two-part test, which essentially provides that, at the first stage, the Court's primary task is to assess what is the detriment that the claimant will suffer as a result of the claimant's reasonable reliance on the defendant's promise, and at the second stage, the Court has the discretion to reduce the defendant's basic liability to the claimant if the Court finds that, on the particular facts of the case, it is not unconscionable for the defendant to leave the claimant to suffer some detriment (see paras 7.35-7.69). Prof McFarlane then goes on to suggest that the Court should -- under the rubric of addressing the third question (see para 9.01) -- consider, inter alia, whether the claimant's right should be specifically enforced and how the Court should, in practice, give effect to the claimant's right, which are in turn considerations that entail having regard to the claimant's expectation (see generally, paras 9.25-9.70). 26. We pause to note that the tripartite inquiry as framed by Scarman LJ in Crabb has not been universally applied, and that the inquiry could essentially be condensed to a bipartite one of whether an equity has arisen, and, if so, how the Court should satisfy this equity: see e.g., Cobbe v. Yeoman's Row Management Ltd. and others 120061 1 WLR 2964 at [126] per Dyson LJ (as he then was) (whilst this decision was reversed on appeal, the House of Lords did not, apparently, deal with this particular point (see Cobbe v. Yeoman's Row Management Ltd. and another 12008] 1 WLR 1752)). However, in the absence of comprehensive submissions in this regard, we decline to express any view on which is the normatively preferable approach. Regardless, for the purpose of the present discussion, to the extent that Prof. McFarlane's approach essentially entails the Court first considering only the detriment suffered by the claimant and then, at a later stage, going on to consider the claimant's expectation, this appears to be a view that, in substance, coincides with the reliance-based approach as set out in Wilken & Ghaly. 27.In any event, in the context of the present proceedings, we note that the AR and the Judge had proceeded throughout on the basis of the expectation-based approach simply because that was at all times the Appellant's case (see [9] and [11] above). It is therefore now too late for this Court to take into account the reliance-based approach -- not least because we are bound to consider only the evidence on record. That having been said, it might well be the case that what appears to be a factual situation might have normative implications as well. Let us elaborate. 28. In the preceding paragraph, we referred to the Appellant's choice (to adopt, as the legal fulcrum of his case, the expectation-based approach). However, this concept of choice may furnish us with a legal clue of sorts as to what the normative or legal position ought to be in relation to the expectation-based approach on the one hand and the reliance-based approach on the other. In particular, the controversy just alluded to -- that it is unclear which approach the Court should focus upon -- might represent a false dichotomy. Put simply, whether or not the Court focuses on the expectation-based approach or the reliance-based approach depends, in the final analysis, on the particular choice made by the plaintiff (here, the Appellant). In other words, the legal principles set out above (particularly those in Lim Chin San (CA) (see [16] above)) relate to the legal relationship between the expectation-based approach and the reliance-based approach -- and not the starting-point that ought to be adopted by the Court as such. The latter (viz., the starting-point that the Court should adopt) depends on the choice made by the plaintiff concerned, who then bears the legal burden of adducing the necessary evidence in order to make good his or her case. 29. Indeed, the analysis suggested in the preceding paragraph finds its analogue in the law
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relating to contractual damages. In so far as a claim for contractual damages is concerned, the plaintiff is free to elect whether or not to claim expectation loss or reliance loss. However (and this deals with the legal relationship between expectation loss and reliance loss in the context of the law relating to contractual damages), the plaintiff is not permitted to claim both total (or gross) loss as well as reliance loss because to permit such recovery would be to permit a kind of double- recovery on the part of the plaintiff. Nor is the plaintiff permitted to claim reliance loss if he or she has made a bad bargain (i,e,, where the reliance loss exceeds the expectation loss). (see, e.g., the English Court of Appeal decision in C & P Haulage (a firm) v. Middleton 11983] 1 WLR 1461). 30. Hence (and returning to the present case), the principle for determining the 'appropriate remedy to satisfy the equity that has arisen in a proprietary estoppel claim which provides that the inquiry is a heavily factual exercise that behoves the Court to achieve proportionality between the expectation, the detriment and the remedy, and do the minimum required to satisfy the maximum extent of the equity and do justice between the parties (see [17] above) is likewise one that relates to the legal relationship between the expectation-based approach and the reliance- based approach. Seen in this light, the fact that this principle embodies -- at one and the same time -- a reference to both expectation and detriment (or reliance) does not render it doctrinally incomprehensible or theoretically incoherent. The examination of the legal relationship entails an examination - of both -- there is no need to choose one over the other as such. However, in so far as the plaintiff's case is…
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