1. Burrows (1983) 99 LQR 217 at 243. Burrows expresses the view that ‘the expectation interest should be protected for promissory estoppel’; the view presented here is that that is indeed the interest protected in all forms of estoppel.

2. See Thompson (1983) 42 CLJ 257 and [1986] Conv 406; Evans [1988] Conv 346; Davis (1993) 13 OxJLS 99.

3. As does Moriarty (1984) 100 LQR 376, taking the view that the purpose of estoppel is to give effect to grants of interests in land that would otherwise have failed because the requisite formalities (writing, use of a deed) have not been employed. He says (at 412); ‘Normally… a remedy will be chosen which gives the party precisely what he has been led to expect, but occasionally, where joint rights to land have been represented, he may get money instead.’ I agree that estoppel does perfect imperfect grants in this way, but there is more flexibility than Moriarty acknowledges.

4. I therefore agree with Thompson (1983) CLJ 257, who states (at 278) that estoppel ‘operates… to allow a discretion to exist, in order that non-contractual expectations can be satisfied’; but I would go further than he does by emphasising that the usual response is to satisfy them in full. Cf Davis (1993) 13 OxJLS 99 at 155: ‘In theory … the doctrine of proprietary estoppel is completely flexible… The practice may be different… If there has not been an express representation the court will look at all factors in deciding what remedy to grant. On the other hand, if there has been an express representation the courts seem to start from the view that it will be enforced unless other factors indicate otherwise.’.

5. Pawlowski, , in The Doctrine of Proprietary Esroppel (London: Sweet and Maxwell, 1996)Google Scholar considers in his ch 5 the ‘two alternative theoretical bases’ of response to estoppel (pp 77–82), and refers also to Gray, Elements of Land Law (2nd edn) at p 350 ff.

6. Fuller and Perdue (1936–7) 46 Yale Law Journal 53 and 373; Burrows op cit n 1 refers to the status quo interest rather than the reliance interest. I have used the more usual term. More recently Friedmann (1995) 111 LQR 628, has pointed out that in the context of contract we should refer to the ‘performance interest’ rather than to the ‘expectation interest’. The term ‘expectation’ is more appropriate to estoppel; the estopped party may have to carry out a promise or assurance, equally a successful plea may lead to a factual statement being treated as true, which can hardly be described as performance. So I have referred to ‘expectation’ throughout, to show the parallel between estoppel and contract.

7. Robinson v Harman (1848) 1 Ex 850.

8. (1991) 101 ALR 1; the joint judgment of Mason CJ and Dawson J contains a very useful discussion of the possibilities for awarding reliance loss where expectations are hard to calculate (at 9–14).

9. This remains so in spite of the disquiet expressed about it over the years, for example by Fuller and Perdue (op cit n 6) and Atiyah (1978) 94 LQR 193, and his Essays in Contract (Oxford: Clarendon Press, 1986)). Friedmann op cit n 6 demonstrates that these expressions of disquiet have had scarcely any substantive effect, and argues that it is entirely appropriate that the law should continue to protect the performance interest in contract.

10. Denning MR in Moorgate Mercantile Co Lid v Twitchings [1976] 1 QB 225 at 241.

11. To take two extremes—one may not subsequently deny a fact that one has stated in a deed. There are no further requirements to be satisfied, the statement in the deed raises the estoppel; Davis v Stone (1992) 41 EG 122. But in deciding whether or not a party is estopped from denying that someone has, or will have, an interest in his land, the court must look at a complex of factors — in particular, the conduct of the landowner, what the claimant has done in reliance on what the landowner said or did, and the detriment the claimant has suffered; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] I QB 133.

12. For example, of the writers discussed below, Lunney is arguing for the application of the theory across the board (if I have understood correctly), because he seeks to eliminate the distinction between the common law and equitable forms (see [1992] Conv 2391, while Finn, and Goff and Jones, are speaking only of equitable estoppel.

13. See the cases cited below n 112.

14. Greasley v Cooke [1980] 1 WLR 1306; Wayling v Jones (1993) 69 P & CR 170, CA.

15. Commonwealth v Verwayen (1990) 64 AJLR 540 at 547.

16. Take the tenants in Central London Property Trust Ltd v High Trees House Lrd [1947] KB 130; all they did was pay the lower rent in reliance upon the concession, which is not a detriment (as Lord Denning MR pointed out extra-judicially in [1952] 15 MLR 1). It has been suggested that the detriment in such cases is the tenants' allowing themselves to become liable, in theory, for breach of covenant; but that seems artificial.

17. (1837) 4 Ad & E 469.

18. Greasley v Cooke [1980] 1 WLR 1306. Another example of potential reliance loss is seen in John v George [1996] 08 EG 140.

19. Atiyah ‘The Binding Nature of Contractual Obligations’, in Harris, and Tallon, (eds) Contract Law Today (Oxford: Clarendon Press, 1989) p 21 at p 24.Google Scholar

20. ‘A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy may be limited as justice requires.’.

21. This was not intended when the paragraph was first drafted; Williston took the view that ‘If the promise is binding, it has to be enforced as it is made’: 4 Am L Inst Proceedings, Appendix 103–104 (1926), and see the famous exchange between Williston and Coudert reproduced by Fuller and Perdue (1936–7) 46 Yale Law Journal at 64. Note that paragraph 90 allows the enforcement of promises to an extent that would not appear to be possible within the law of estoppel in this jurisdiction.

22. [1982] 1 QB 84.

23. [1982] 1 QB 133.

24. In ‘Equitable Estoppel’, ch 4 of Finn (ed) Essays in Equity (1985); I do not know whether or not this was the first time the argument was advanced in Australia.

25. (1854) 5 HLC 185.

26. (1866) LR 1 HL 129 at 170.

27. Finn points out that the terminology of ‘equities’ originated in Plimmer v Mayor, etc, of Wellington (1884) 9 App Cas 699. It is a pity that so much use has to be made of a word so opaque to the non-lawyer (and, if we are honest, to the lawyer).

28. [1965] 2 QB 29.

29. [1967] 2 QB 679.

30. [1976] Ch 179.

31. [1979] 1 WLR 431.

32. For example, being espoused by Meagher, Gummow and Lehane in Equity: Doctrines and Remedies (2nd edn, 1984) paras 1718–9.

33. p 70.

34. Some English writers have thus agreed with Finn in adopting the reliance loss theory, while rejecting his views on the limits of estoppel. As we shall see (text following n 146), so have some members of the Australian High Court.

35. Text following n 146.

36. (1988) 164 CLR 387.

37. [1990] 64 ALR 540.

38. [1992] Conv 239.

39. Op cit at p 250.

40. (1854) 5 HLC 185.

41. [1994] 68 AW 559 at 575.

42. Notes 36 and 37.

43. Lord Denning in Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd [1982] 1 QB 84 at 122.

44. This is the step in the argument with which Finn disagrees; above n 34.

45. Gissing v Gissing [1971] AC 886.

46. [1990] Conv 370.

47. Op cit at 371.

48. The debate about constructive trusts and proprietary estoppel remains unresolved; see Ferguson, (1993) 109 LQR 114 and Hayton, ibid at 485.

49. The Law of Restitution (4th edn, 1993) pp 166 ff.

50. P 167.

51. Atp 171.

52. Huning v Ferrers (1711) Gilb 85; Unity Joint-stock Mutual Banking Association v King (1858) 25 Beav 72; Dillwyn v Llewelyn (1866) 4 De G F & J 5 17; Inwards v Baker [1965] 2 QB 29.

53. Not all of them have been discussed here. Some writers adopt the reliance loss theory without argument, treating it as a matter of settled law; for example, Davis at [1995] Conv 417 states that ‘the doctrine of proprietary estoppel is traditionally understood to give rise to a reliance based remedy rather than an expectation based one’. Compare the comments made by Key (1995) 111 LQR 576 at 580, in a note on the possible role of estoppel in Regalian Properties plc v London Docklands Development Corporation [1995] 1 WLR 212.

54. In Part IV of this article.

55. [1976] 1 Ch 179.

56. [1982] 1 QB 133.

57. At 193.

58. See, for example, the judgments of Mr Andrew Park QC in Durant v Heritage and Hamilton 20 July 1994, Ch Div and of Roch LJ in Matharu v Matharu [1994] 2 FLR 597 at 607H.

59. At 199E.

60. At 199E.

61. In fact he got more than his expectation, because in the event (because of the council's conduct) he did not have to pay for his access right (as Goff LJ remarked in Williams v Staire [1978] 2 WLR 829).

62. If the court had merely compensated the plaintiff for having his land rendered unusable in the past, that would still have left the land unusable and valueless for the future — and that could only be alleviated by forcing the Council to buy the land.

63. At 199A-B.

64. (1884) 9 App Cas 699 at 714.

65. The decision there, of course, was that the plaintiff did have an interest in the land concerned such as to qualify him for compensation when it was compulsorily acquired by the corporation.

66. Evans' argument in [1988] Conv 346 is that the distinguishing feature of proprietary estoppel is this choice of remedies. In the current edition of Baker and Langan Snell's Equity (29th edn, 1990) we are given an account of the choices taken in a wide range of cases; the corresponding passage in the 28th edition is quoted by the Law Commission in its report no 164 on ‘Formalities for Contracts of Sale etc of Land’, at para 5.5.

67. As Thompson has explained (1983) 42 CLJ 257.

68. (1884) App Cas 699 at 714, emphasis added.

69. Cf Moriarty's explanation of the different remedies in Dillwyn v Llewelyn (1862) 4 De GF & J 517 and Pascoe v Turner (1979) 1 WLR 431.

70. Grifith v Williams (1978) 248 EG 947. Dodsworth v Dodsworth (1973) 228 EG 1115.

71. For example, Inwards v Baker [1965] 1 All ER 446, Binions v Evans [1972] 2 All ER 70, Re Sharpe (A Bankrupt) [1980] 1 WLR 219; see Martin [1980] Conv 207, and the comments made in the Court of Appeal in Dodrworth v Dodsworth (1973) 228 EG 11 15 expressing disquiet about the effect of the order made in Inwards..

72. Parcoe v Turner [1979] 1 WLR 431; cf Dewar's comments, 49 MLR 745 at 749.

73. [1989] 1 Ch I, CA.

74. See in particular the judgment of Fox LJ at 25H-269.

75. An exception is Mathuru v Matharu [1994] 2 FLR 597, where it was held that the claimant (the defendant in possession proceedings) had a licence to remain in the property for her lifetime. See Welstead [1995] Conv 61, and Battersby (1995) 7 CFLQ 59. Note, however, that this was a way, however unsatisfactory, of satisfying the claimant's expectation — there was no question of merely compensating her expenditure.

76. Contrast those cases where it is clear that the plaintiffs expectation was of a personal right only; for example, Baker v Baker [1993] 2 FLR 247 (text below at n 109).

77. (1993) 69 P & CR 170, CA.

78. At (1995) 111 LQR 389 1 have doubted whether the Court of Appeal's use of the concept of reliance in this case was correct; but that is not material here. It was not possible for the court to award the plaintiff an interest in the property because it had already been sold. The case is also noted by Davis [1995] Conv 409.

79. 20 July 1994, Ch Div, [1994] NPC 117.

80. This was another inheritance case, where the claimants, this time tenants of the deceased, had spent money on the property expecting to inherit it. The commentator in ‘New Property Cases’ [1994] NPC 117, remarks that ‘this looks like a missed opportunity to use the flexibility of the estoppel device to spread the burden of [the estopped party's] incompetence’ by, perhaps, granting a life estate so as to leave something later for the other claimants to the deceased's estate. But there is no precedent for the use of estoppel in that way.

81. 14 April 1994, CA, [1994] NPC.

82. After the plaintiff had worked for a pittance from 1960 to 1977, his mother revealed that she had in fact made him a partner in 1968; from then on he had access to his own drawings, and to the funds credited to his partnership account during the ‘lean years’. Hoffman W commented ‘what happened after 1977 cannot improve the wages in the period 1968 to 1977. What he got in 1977 was the business, or a 90% share. That was undoubtedly a benefit, but it was part of the benefit for which he had suffered the earlier detriment’. Note that where reliance loss has been minimal or has already been compensated, it may be held either that no estoppel arises or that no remedy is appropriate; see for example Appelby v Cowley (1982) Times, 14 April, Watts v Story (1983) 134 NLJ 631, CA, and Davis' comments on these cases at (1993) 13 OxJLS 99 at nn 68 and 1 15.

83. [1995] 1 WLR 212.

84. At 227.

85. The plaintiff's claim in restitution failed, because its expenditure had not benefited the defendant, so that the defendant was not unjustly enriched.

86. ‘Equitable Estoppel’, ch 4 of Finn (ed) Essays in Equity (1985), particularly at p 68.

87. Text above at n 68; Finn acknowledges, at p 68, that the result was the meeting of the claimant's expectations, but argues that the case has been ‘an instrument, most likely unwitting, in the process of confusion’ (p 67).

88. [1965] 2 QB 29.

89. [1967] 2 QB 379.

90. [1979] 1 WLR 431.

91. See above n 47.

92. He also refers to Waltons Stores (Interstate) Ltd. v Maher (1988) 62 AWR 110, on which see below (text following n 146).

93. But see Matharu v Matharu [1994] 2 FLR 597, and above n 75.

94. A Mesher order is so called from the case Mesher v Mesher [1980] 1 All ER 126, CA; the term refers to settlements made by the divorce court whereby a former matrimonial home remains unsold so that one party can remain there but must be sold and the proceeds split between the two on the occurrence of events such as the occupier's re-marriage or the children leaving home. Obviously, in divorce it is possible to use the statutory jurisdiction under the Matrimonial Causes Act 1973 to ‘spread the burden’ of family breakdown, just as the New Property Cases commentator wanted to ‘spread the burden’ of the muddle in Durunt v Heritage and Hamilton 20 July 1994 (see above n 80).

95. In Coombes v Smith [1986] 1 WLR 808 the claim of estoppel failed; the action was dismissed on the defendant's undertaking to house the plaintiff until their child should reach the age of 17. Hardwick v Johnson [1978] 1 WLR 683 involved a licence to occupy property, granted by the plaintiff to her son and daughter-in-law. Lord Denning MR suggested (at 689) that the licence might be revocable in the future in circumstances which call to mind a Mesher order — but this is not an estoppel case. There is no mention of estoppel in the report, and although it is grouped with estoppel cases in Re Shurpe (A Bankrupt) [1980] 1 WLR 219 (by Browne-Wilkinson J at 223), other cases distinguish it sharply from decisions on estoppel (Rogers v Eller(20 May 1986, CA, unreported); Patel v fatel (30 June 1983, CA, unreported); Hoskins v Hoskins (3 December 1981, CA, unreported)).

96. (1858) 25 Beav 72.

97. [1972] 1 WLR 1286.

98. (1973) 228 EG 1115.

99. (28 October 1986. CA, unreported); cited by Davis [1995] Conv 409. A Lexis transcript is available.

100. Being cited in Plimmer v Mayor, etc, of Wellington, (1884) 9 App Cas 699 at 713.

101. Huning v Ferrers (1711) Gilb 85; Dillwyn v Llewelyn (1866) 4 De G F & J 517; Plimmer itself; and Sir Arthur Hobhouse in Plimmer at 7 13 expresses the view that had the tenant in Rumsden v Dyson (1866) LR 1 HL 129 been successful he would have got what he expected, namely ‘a particular kind of lease’.

102. [1972] 1 WLR 1286.

103. At 1291.

104. At 1290.

105. [1965] 2 QB 29.

106. At 1292.

107. See, for example, Birks' discussion in An Introduction to the Law of Restitution (1989) at pp 285–6.

108. Moriarty (1984) 100 LQR 376 explains the awards of monetary compensation in Hussey v Palmer and Dodsworth (see below) on the basis that these cases involve propertysharing arrangements that broke down, but acknowledges (at 388, n 68; and see Davis (1993) 13 OxJLS 99 at 114, n 111) that the awards given to the claimants in these cases do not constitute a monetary equivalent of their expectations.

109. [1993] 2 FLR 247.

110. Davis [1995] Conv 409 points out that the value of the expectation loss here was considerably less than the reliance loss, since the capital that the father put into the purchase was far greater than the value he was getting out of the arrangement. We do not know whether or not the same was true for Mrs Palmer.

111. I may of course have missed some, but there can hardly be many. Lunney, in his reexamination of Jorden v Money, cites Gale v Lindo (1687) 1 Vern 475, Eastubrook v Scott (1797) 3 Ves Jun 456, Lumare v Dixon (1873) L Rep 6 App Cas 352, and Lim Teng Huan v Ang Swee Chuan [1992] 1 WLR 113 as examples of ‘tailoring the decree to the detriment suffered by the “innocent party”’ rather than protecting expectations. Nevertheless, it is suggested that the remedy in these cases was designed to match, as closely as possible, the claimant's expectation.

112. Nippon Yusen Kaisha v Pacific Navegacion SA (The Ion) [1980] 2 Lloyd's Rep 245, and the first instance decision in K Lokumal & Sons (London) Ltd v Lotte Shipping Co Pte Ltd (The August Leonhardt) [1985] 2 Lloyd's Rep 28. I say ‘in this jurisdiction’ because, as we shall see, the position is different in Australia.

113. Times 23 December 1992.

114. Roebuck v Mungovin [1994] 2 AC 224, HL.

115. Both these quoted remarks are from the Lexis transcript. Even though the House of Lords' decision in Roebuck v Mungovin means that this situation is no longer regarded as one of estoppel, the reasoning about estoppel in the earlier case of Roche is still useful.

116. See above, text following n 16.

117. That is, whether it is restricted to its use in High Trees and Combe v Cornbe as a defence, enforcing only a promise not to insist upon a right, or whether it can be used to enforce positive promises, and so as to be entirely (rather than only partially) inconsistent with Jorden v Money (1854) 5 HLC 185 and to outflank the doctrine of consideration.

118. See above, text following n 24.

119. See above, text following n 49.

120. As is Lunney, see above n 38.

121. Knights v Wiffen (1870) LR 5 QB 660; Eastern Disrriburors Ltd v Gofdring [1957] 2 QB 601; Re Goldcorp Exchange Ltd (in receivership) [1994] 2 All ER 737, although the estoppel claim there was unsuccesful.

122. [1983] 1 WLR 605.

123. In particular, Skyring v Greenwood (1825) 4 B & C 281; Greenwood v Martin's Bank [1933] AC 5 1, and Holt v Markham [1923] 1 KB 504.

124. At 624.

125. For example, Harman J accepted it as such in Re Exchange Securities Ltd [1988] 1 Ch 46 at 56.

126. At 622.

127. There is a lot to be said for this approach. One is, generally, entitled to live up to one's income, and it would be oppressive to place on the person overpaid the burden of showing how each item of expenditure was caused by the overpayment — probably an impossible task.

128. Since its recognition in Lipkin Corman v Karpnale Ltd [1991] 2 AC 548 there is nothing to prevent the defendant continuing to plead estoppel, but it would be imprudent not to use change of position as an alternative.

129. See Key (1995) 54 CLJ 525.

130. [1982] 1 QB 133.

131. Thus, Slade Li in Howlett suggests that in certain limited circumstances it might be inequitable for the defendant not to give up the money he had not spent; at 621.

132. [1937] 59 CLR 641.

133. [1976] 1 QB 225 at 245.

134. Text at n 146.

135. [1937] 59 CLR 641 at 675. Because Dixon J spoke of estoppel by agreement or by the adoption of a ‘conventional basis of a transaction’, his judgment has frequently been taken as an exposition of estoppel by convention; but it does not appear that he intended to limit the scope of his remarks to that form of estoppel, nor, indeed, that he saw estoppel by convention as a separate form.

136. See at 677–8. The mine owner was anxious that the dispute should not, at that stage, bring mining operations to a halt.

137. Above, text following n 133; (1937) 59 CLR 641 at 674. It is perhaps churlish to point out that anything said in the case about estoppel was, strictly, obiter. However, it is worth pausing to wonder why Dixon J discussed at some length the requirement of detriment, given that that was not in issue.

138. At 674–5.

139. At 675–7.

140. At 674.

141. [1990] 64 CLR 540 at 547.

142. Holt v Markham [1923] 1 KB 504.

143. Yorkshire Insurance Co v Cruine [1922] 2 AC 541.

144. [1983] 1 WLR 605.

145. See above, text at n 16.

146. (1988) 164 CLR 387.

147. [1990] 64 ALR 540.

148. In recommending that the requirements for the formalities of land contracts be made more stringent, the Law Commission envisaged that resulting problems might be solved by the use of estoppel (Report no 164, paras 54–55); following the enactment of s 2 of the Law of Property (Miscellaneous Provisions) Act 1989 that has not yet happened. Davis, (1993) 13 Ox JLS 99, assesses the potential of estoppel as a substitute for part performance.

149. At 406.

150. At 423.

151. Brennan J in Commonwealth v Venvayen at 553 stated that Waltons Stores was a case where the promise was enforced, so we may take it that normal contractual damages were awarded.

152. Above, text at n 112.

153. The case therefore raises the difficult issue of the relationship between waiver and estoppel, which cannot be discussed here.

154. See at 547–8 and 554.

155. See at 574,579 and 587.

156. From Dixon J's judgment in Grundt, according to Mason CJ's interpretation; (above n 123).

157. Toohey, Gaudron and McHugh JJ.

158. [1980] 1 WLR 1306.

159. [1979] 1 WLR 431.

160. CA, 14 April 1994.

161. (1993) 69 P & CR 170.

162. Albeit not all. For example, Crabb v Arun District Council [1976] 1 Ch 183. Regalian Properties plc [1995] 1 WLR 212.

163. See above, text at n 112.

164. Ramsden v Dyson (1866) LR 1 HL 129; Inwards v Baker [1965] 1 All ER 446.

165. In circumstances where it would not be possible to argue subjective devaluation because the other requested or encouraged the services; as in Greasley v Cooke [1980] 1 WLR 1306 or Wayling v Jones (1993) 69 P & CR 170.

166. Woolwich Equitable Building Society v IRC [1993] 1 AC 70, HL.

167. Birks An Introduction to the Law of Restitution (1988) pp 16–22.

168. Hussey v Palmer [1972] 1 WLR 1286.

169. It did not do so in any of the estoppel cases where restitution has been granted; for example, Cushley v Seule (28 October 1986, CA, unreported).

170. Birks has argued that overlap between estoppel and restitution is undesirable, and that it is desirable to retain the latter as a way of protecting expectations, while using the cause of action in unjust enrichment to achieve restitution. An Introduction to the Law of Restitution (1988) pp 290–3.

171. Combe v Combe [1951] 2 KB 215; Syros Shipping Co SA v Elaghill Trading Co [1980] 2 Lloyd's Rep 390.

172. For example, in Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce Internutiom1 Bank Ltd [1982] 1 QB 84 the bank was enabled to enforce a guarantee, which was valid but did not cover the indebtedness concerned; the customer was estopped from denying that the debt was covered. Similarly in Pacol Ltd v Trade Lines Ltd (The Henrik Sif) [1982] 1 Lloyd's Rep 456 the plaintiff was able to enforce a contract against the defendant because the defendant was estopped from denying that he was a party to it.

173. [1987] 1 AC 14.

174. Similarly, the High Court in Regalian expressed no doubt about the possibility of the plaintiffs having been able to enforce the making of a contract if it had chosen to use estoppel.

175. [1990] 1 QB 1.

176. In Rofley the consideration for the defendant's promise to pay the plaintiff was the performance of work which the plaintiff was already contractually bound to do for the defendant; the Court of Appeal accepted that nevertheless the defendant had received a subjective benefit in return for his promise (effectively overruling Stilk v Myrick (1809) 2 Camp 317).

177. For example, Mescher (1990) 64 ALJ 536.

178. [1987] 1 AC 114.

179. Friedmann (1995) 111 LQR 628. See above, n 6.

180. Attorney General of Hong Kong v Humphreys Estates (Queen's Gardens) Ltd [1987] 1 AC 114; see above, text at n 173.

181. As was accepted in Attorney General of Hong Kong v Hwnphreys Estates (Queen's Gardens) Ltd and in Regalian Properties plc v London Docklands Development Corporation [1995] 1 WLR 212.

182. (1988) 164 CLR 387.

183. A fall in values, if he is the prospective purchaser, or a rise if he is the vendor and it is the purchaser who refuses to go ahead.

184. As happened in Regalian.

185. See the discussion, above, of Dodsworth, etc; text following n 96.

186. Note that this option would only arise where there was a case of estoppel, ie where the defendant was refusing to stand by his representation and to meet the expectation. That meets Moriarty's concern that an option to compensate reliance loss only would cause hardship to a defendant who was perfectly willing to carry out what he had promised; see (1984) 100 LQR 376 at 384. In such a case, estoppel simply does not bite on the facts. Hence the failure of the claims in Stilwell v Simpson (1983) 133 NU 894 and in Savva v Costa and Hurymode Investments Ltd (1981) 131 NU 1114, cited by Gray Elements of Land Law at p 350, and by Pawlowski The Doctrine of Proprietary Estoppel at p 77.

187. Although Key (1995) 111 LQR 576 at 580, would have preferred to see estoppel used to compensate reliance loss in this case.

188. [1972] 1 WLR 1286. See text following n 102, above. That a reminder of this possibility is needed is seen from the comments of Rattee J in Regalian to the effect that estoppel compensates expectations and not reliance; so it does, generally, but the flexibility must not be forgotten.

189. Consider Finn's argument, above, text following n 24.