Promissory Estoppel

At its most basic level Promissory Estoppel, as a form of Equitable Estoppel, involves at least three elements. There needs to be a promise/assurance usually by the defendant that was relied upon by the plaintiff to his or her detriment where departure from the promise amounts to unconscionable conduct on the part of the defendant. A more traditional analysis of Equitable Estoppel suggests 6 elements are needed.

Whilst it may have originally been intended for an estoppel to be raised as a defence only, this remedy can probably also be used to assert a positive right. This form of estoppel can arise in many types of contexts and is particularly useful where a contract lacks the element of consideration (also known as a voluntary promise).

Sample Estoppel Applications and Disputes

  • An application by that a relative transfer to you the rights to a burial plot based on representations made to you, and relevantly relied on so as to establish an estoppel.

Important Quotes - Estoppel Cases

"In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs." - Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7

Let Us Help You

  • consider the factual circumstances of your case to determine which facts go towards establishing (or not establishing) promissory estoppel;
  • look at each element of promissory estoppel in turn;
  • get legal advice about how this remedy can be raised as a defence or to assert a positive right keeping in mind the need for proportionality;
  • find out if there is a waiver by means of an estoppel;
  • plead your defence or claim based on equitable estoppel;
  • understand the possible defences to a claim based on estoppel

* This content does not purport to give legal advice. Readers must obtain their own legal advice, that applies to the particular circumstances of their case, before taking any action at all.