ABSTRACT
Proprietary estoppel is very different, in a number of ways, from the institutional resulting and constructive trusts considered in Chapters 6 and 7. The principal aim of proprietary estoppel is generally said to be to avoid detriment rather than to enforce the promise. Whereas the common intention constructive trust appears to be quasi-contractual (in that it enforces an express or implied agreement), estoppel is directed at preventing detriment being caused by a broken promise. In Walton Stores v Maher (1988) Brennan J held that:
Similarly, Lord Browne-Wilkinson has held in Lim v Ang (1992) that the purpose of proprietary estoppel is to provide a response where ‘it is unconscionable for the representor to go back on the assumption that he permitted the representee to make’. That is, to avoid the detriment caused from retreating from that representation. This approach is important because the court’s intention is not merely to recognise that an institutional constructive trust exists between the parties, but rather to provide a remedy which prevents the claimant from suffering detriment.
