[67] In
Thorner v Major and Others [2009] 3 All ER 945, Lord Walker of
Gestingthorpe opined at paras 56-57 that:
[T]o establish a proprietary estoppel, in a particular case, the relevant
assurance had to be clear enough. What amounted to sufficient clarity
was dependent on context… The promise had to be unambiguous and
had to appear to have been intended to be taken seriously. Taken in its
context, it had to have been a promise which one might reasonably
expect to be relied on by the person to whom it had been made…It looks
backwards from the moment when the promise fell due to be performed
and asked whether, in the circumstances which had actually happened, it
would be unconscionable for the promise not to be kept...
[68] In
Thorner the defendant began to help his cousin at his farm in 1976 without
remuneration. The defendant developed an expectation that he would inherit his
cousin’s farm, when in 1990 the cousin handed him a bonus notice on two life
assurance policies and said 'that's for my death duties'. That remark and conduct
on the cousin’s part strongly encouraged the defendant. In 2005, the cousin
died intestate and his personal representative sought not to honour the
expectation of the defendant. The court at first instance held that it was
reasonable for the defendant to understand such remarks by the cousin and
rely on them in that way. It ordered that the defendant should receive the land,
buildings, live and dead stock and other assets of his cousin’s farm. The
claimant appealed against the decision, which was allowed by the Court of
Appeal. The defendant appealed to the House of Lords which allowed the
appeal upholding his interests in the property based on his expectation.
[69] If the 2
nd
defendant had gone to the extent of purchasing deed of gift forms and
sharing her intentions with a stranger (Mr. Clarke), then that would be tantamount
to an unambiguous promise which could be relied on by the claimant. The
submission of the learned counsel for the claimant was that Mr. Clarke was an
independent witness. Mr. Clarke himself testified that he did not “have an axe to
grind.” A careful examination of his evidence is however very revealing.
[70] Although he maintained that on the occasion of the claimant and 2
nd
defendant’s
visit to his shop was the very first time he was seeing them, he was able after six
(6) years to recall the full names of both parties and where the house was built.
He testified that because he likes to cook, he remembered the location of the
house. He could not recall when after 2006 he saw the claimant but stated that
in 2009 he saw her at Mr. Chen’s office, when he went there to do his statement.
However, he was unable to recall when he was contacted by the claimant to give
a statement as according to him, he has a lot of details on his mind, but he
remembered the details about purchasing the forms, as that was a simple matter.
[71] Finally, he disagreed with the suggestions that he was lying for the claimant; that
the 2
nd
defendant never came to him to purchase any form; that at no time did
the 2
nd
defendant go to him and state that the claimant was looking after her
and building a house for her; and that his story was a concoction. He further
denied that his witness statement was unreliable and untrustworthy and that the
matter was important to him as he was supporting his friend. He stated that he
and the claimant never discussed his statement.
[72] I carefully observed Mr. Clarke’s demeanour when he was giving his evidence. I
found his demeanour unconvincing and his evidence too convenient. He
remembered the details surrounding the request for and his procurement of the
forms very clearly including that this all took place on a Thursday afternoon, but
was hazy on most other things. Also it is curious why having just met the
claimant and her mother for the first time, he would take the time to go across
the road to purchase the forms for resale to them, rather than just sending them
across the road to buy the forms themselves. I find Mr. Clarke to be an unreliable
witness and I do not accept his evidence or that of the claimant on the issue of
the purchase of deed of gift forms.
[73] Having considered all the circumstances I accept the evidence of the 2
nd
defendant that there was no such visit and no purchase of deed of gift forms. The
claimant is therefore unable to rely on any such forms to establish a clear