LEE HAY v YANG DI PERTUA MAJLIS DAERAH, HULU LANGAT & ANOR [1998] MLJU 269

(HC)

73. The Ahmad Tajudin's case went on to state: "As for the legitimate expectation point, it is appropriate
at this point to reproduce the speech of Simon Brown LJ in R v Devon CC ex p Bakar [1995] 1 AII ER 73
where at pp 88 and 89 he had said:

"It is first, I think, convenient to identify, at least in broad categories, various of the distinct
senses in which the phrase 'legitimate expectation' is nowadays use.

(1) Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant
asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as
R v Secretary of State for the Home for the Home Dept. ex p Ruddock [1987] 2AII ER 518, 518,
[1987] 1 WLR 1482. It was[1998] MLJU 269 at 62used in the same sense but unsuccessfully in,
for instance, R v Board of Inland Revenue, ex p. MFK Underwriting Agencies Ltd [1 AII ER 91
[1990]1 WLR 1545 and R v Jockey Club ex p RAM Racecourses Ltd [1990] [1993] 2AII ER 225. The
various authorities show that the claimant's right will only be found established when there is a
clear and unambiguous representation upon which it was reasonable for him to rely. Then the
administrator or other public body will be held bound in fairness by the representation made
unless only its promise or undertakings to how its power would be exercised inconsistent with
the statutory duties impose upon it. The doctrine employed in this sense is akin to an estoppel.
In so far as the public body's representation is communicated by way of a stated policy, this type
of legitimate expectation falls into two distinct sub-categories: cases in which the authority are
held entitled to change their policy even so as to affect the claimant, and those in which they are
not. An illustration of the former is R v Torbay BC, ex p Cleasby [1991] COD 142; of the latter, Ex p
Khan.[1998] MLJU 269 at 63

(2) Perhaps conventionally the concept of legitimate expectation is use to refer to the claimant's
interest in some ultimate benefit which he hopes to retain (or, some would argue, attain). Here,
therefore, it is the interest itself rather than the benefit that is the substance of the expectation.
In other words the expectation arises not because the claimant asserts any specific right to a
benefit but rather because his interest in it is one that the law holds protected by the
requirements of procedural fairness: the law recognises that the interest cannot properly be
withdrawn (or denied) without the claimant being given an opportunity to comment and
without the authority communicating rational grounds for any adverse decision. Of the various
authorities drawn to our attention, Schmidt v Secretary of State for Home Affairs [1969] 1AII ER
904,[1996]2CH 149, O'Relly v Mackman [1982]3AII ER 1124, [1983]2 AC 237 and the recent
decision of Roch J in R v Rochadale Metropolitian BC, ex p Schemet [1992] FCR 306 are clear
examples of this head of legitimate expectation.[1998] MLJU 269 at 64

(3) Frequently, however, the concept of legitimate expectation is used to refer to the fair
procedure itself. In other words it is contended that the claimant has a legitimate
expectation that the public body will act fairly towards him. As was pointed out by Dawson J in
 A-G for new South Wales v Quin [1990]93 ALR 1,39 this use of the terms is superfluous and
unhelpful: it confuses the interest which is the basis of the requirement of procedural fairness
with the requirement itself:

'No doubt people expect fairness in their dealings with those who made decisions affecting their
interests, but it is to my mind quite artificial to say that this is the reason why, if the expectation is
legitimate in the sense of well founded, the law imposes a duty to observe procedural fairness. Such a
duty arises, if at all, because the circumstances call for a fair procedure and it adds nothing to say that
they also are such as to lead to a legitimate expectation that a fair procedure will be adopted.[1998]
MLJU 269 at 65

4. The final category of legitimate expectation encompasses those cases in which it is held that a
particular procedure, not otherwise required by law in the protection of an interest, must be followed
consequent upon some specific promise or practice. Fairness requires that the public authority be held
to it. The authority is bound by its assurance, whether expressly given by way of a promise or implied by
way of established practice. Re Liverpool Taxi Owners' Assocition [1972] 2AII ER 589, [1972] 2 QB 299
and A-G of Hong Kong v Ng Yuen Shiu [1983] 2ALL ER 346, [1983] 2 AC 629 are illustrations of the court
giving effect to legitimate expectations based upon express promises; Council of Civil Service Unions v
Minister for the Civil Service an illustration of a legitimate expectation founded upon practice albeit one
denied on the facts by virtue of the national security implications. Let me acknowledge at once that the
above is by no means an exhaustive analysis of the concept of legitimate expectation; anyone interested
in that should study instead Mr Paul Craig's illuminating article 'Legitimate expectations; a conceptual
analysis' (1992) 108

Narenthra Rao A/L T G Somanatha Rao v Malayan Banking Berhad [2014] MLJU 391
(HC)

[8] The concept of legitimate expectation has its origin in the field of public law. …

[12] The application of the concept of 'legitimate expectation' has been extended to a limited number
of private law cases. In Jamin Trading Sdn Bhd & Anor v Shell Malaysia Trading Sdn Bhd [2011] 4 MLJ
662, Vernon Ong J had referred to cases where public law remedy had been applied in matters of private
law. His Lordship observed at p 678 as follows:

[37] The historical background relating to the doctrine of legitimate expectation has been clearly
set out by the Court of Appeal in Law Pang Ching & Ors v Tawau Municipal Council [2009] 3 MLJ
452;; [2010] 2 CLJ 821, 836–838. Suffice to say that as a general rule the doctrine is an
equitable doctrine under development in public law. Is the doctrine applicable to a private law
situation? Recognition of this doctrine appears to have been accorded in private law situation
within the context of shareholder's rights in a private company involving elements of quasi-
 partnership, other personal relationship or personal dealings of some kind between the party
seeking to exercise the legal right and the party seeking to restrain such exercise, such as will
affect the conscience if the former.

[13] His Lordship then referred to the Court of Appeal case of Tuan Haji Ismail v Leong Hup Holdings
Bhd and other appeal [1996] 1 MLJ 661 and the Singapore Court of Appeal case of Sim Yong Kim v
Evenstar Investments Pte Limited [2006] 3 SLR(R) 827. His Lorship then concluded at p 679 as follows:

As can be seen from the cases cited by the plaintiff the doctrine of legitimate expectation may arise in
situations other than in the realm of public law. However, the cases are distinguishable as they relate
particularly to the question of a shareholder's rights in a private company and not to a party's rights
under a private contract situation. In the premises the cases are of no aid to the plaintiffs contention.
There is therefore no basis upon which the plaintiffs can lay to a legitimate expectation that the
defendant will renew the operation of the petrol station so long as the PDA license is renewed by the
first plaintiff … (Emphasis added.)

[14] In Kamarudin Merican (Suing for himself and on behalf of all the members of the Association of
West Malaysian Race Horse Trainers) v Kaka Singh Dhaliwal (Sued as the public officer of the Malayan
Racing Association) [2011] 7 MLJ 281, I had opined that the concept of legitimate expectation may be
applicable to private law matters in cases where the private arrangement and agreement of the parties
are infused with a public element especially in cases of unfair discrimination and unconscionable and
unreasonable conduct with constitutional overtone. At pp 298–299 I had stated as follows:

[47].... legitimate expectation' is what the word suggests: an expectation that one legitimately look
forward to and though as a concept it started in the realm of public law it has an equivalent
though reverse concept in private law as in the concept of estoppel where a party because of his action
or inaction in a contractual relationship context is estopped from raising certain defenses for instance.

[48] I think the public-private law dichotomy can be a little artificial as concepts of unconscionability,
reasonableness and fairness are universal concepts of law that pervade the whole corpus juris as may be
applied to every sphere and spectrum of human endeavour and experience. More so, when a private
contractual relationship has a public element infused into it as in this case of the livelihood of race horse
training and all that its entails with big money changing hands. (Emphasis added.)

[15] Learned counsel for the appellant, Miss Pushpa Ratnam, had summarised the propositions of the
doctrine of 'legitimate expectation' as follows:

 (a)they include expectations which go beyond enforceable legal rights, provided they have some
reasonable basis;

 (b)the expectations may be based upon some statement or undertaking made by the decision
making authority;

 (c)the decision making authority had made a decision which had abruptly deprived the recipient
continued enjoyment, which the recipient had legitimately expected to be permitted to enjoy;
  (d)there was no communication of any rational grounds for withdrawing the benefits enjoyed,
on which the recipient was allowed to comment; and

 (e)the recipient unfairly by denying the recipient the right to be heard.

GPQ Sdn Bhd v Constant View Sdn Bhd [2017] MLJU 894 (CA)

Legitimate Expectation

[57] On the issue of legitimate expectation we agree with the point raised by the Defendant that
the doctrine of legitimate expectation is only applicable in public law and not to private law
matters. The case relied by the Plaintiff Wolley Development Sdn Bhd v Mikien Sdn Bhd [2008] 1 MLJ
585 (Wolley) would not be applicable to the case at hand as the facts in these two case were not
similar. In the case of Wolley the 2nd Defendant in that case had accepted the transfer agreement
which contained the right and liabilities to rehabilitate conditionally the Project unequivocally. Whereas
in our case the Defendant and EDV accepted the MOU and 18 th December Agreement conditionally.