Proprietary Estoppel

Key features PE is an equitable informal mode of creating any kind of interest in land.

Ramsden v Dyson (1876), Kingsdown: “If a man, under a verbal agreement with a landlord for a certain interest in land, or … under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.”

Willmott v Barber, Fry initially laid out strict test (C makes mistake as to legal rights; C performs acts in reliance on mistake; D knows of the existence of his own inconsistent right; D knows of C’s mistake; D encouraged C’s mistake or abstained from asserting his legal rights). Oliver in Taylors Fashions said these are not strict rules – the modern broader question is whether in “all the circumstances … it was unconscionable for [D] to seek to take advantage of the mistake which, at the material time, everybody shared.” Cobbe and Thorner adopt this.

PE, unlike other estoppel, can found a claim for an interest in land (a sword, not just a shield) – Crabb v Arun DC (1976) (Denning: “proprietary estoppel … does give rise to a cause of action”). PE can also be defence to O trying to enforce strict rights.

PE is based on preventing unconscionable conduct - Taylors Fashions Ltd v Liverpool Victoria Trsutees Co Ltd (1982) (Oliver: “equitable jurisdiction to interfere … where the assertion of strict legal rights is … unconscionable”) - Gillett v Holt (2001) (Walker: “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the [PE] doctrine”)

In a PE claim, after facts satisfying requirements arise, an inchoate equity arises (this entitles C to go to court); when C makes a claim, the court decides how best to use discretion to satisfy the equity. It will not always be a proprietary remedy, and where it is may not be the one promised.

It is important to identify whether an estoppel (inchoate equity) is proprietary or personal, as this will impact dealings with third parties.

PE raises concerns – dangers of subverting formality rules, restricting testamentary freedom (eg Gillett – PE prevented from changing will), overuse in unprincipled manner (Walker in Cobbe noted it must not be used as a “wild card” whenever court doesn’t like a litigant who has law in his favour).

Elements of a PE claim

Broadly, PE requires a representation/assurance made to C + reliance by C + detriment to C as result of reasonable reliance (Walker, Thorner v Major (2009)).

Factors may impact each other (eg quality of assurance may impact reliance; reliance may be connected to detriment; if ‘mutual understanding’ required, may depend on other elements) – PE must be looked at “in the round” with aim to prevent unconscionability (Walker, Gillett).

1. Representation or assurance made to C that they have or will have an interest in the land

Assurance can be made passively – where O stands by, allowing C to act to his detriment, while knowing C is acting in belief that he has the interest, O is deemed to acquiesce in the interest and failure to correct C is representation raising estoppel. - Thorner v Major (2009) (“standing by in silence serves as the element of assurance”) - Ramsden v Dyson (1876) (Cranworth – eg stranger building on O’s land assuming it is his, O aware; O has “duty to be active and to state [O’s] adverse title … dishonest … to remain wilfully passive … in order afterwards to profit”)

For passive assurance, O must be aware of the reliance and detriment – otherwise, it is unlikely to be unconscionable; however, it is objectively assessed (Thorner) - SS for Communities & Local Government v Praxis (2015) (NI) (no PE b/c O never encouraged C’s mistaken belief in lease, even though C spent $ refurbishing) - Brinnand v Ewens (Nourse: “you cannot encourage a belief of which you do not have any knowledge”) - Crabb (O didn’t know C intended to sell land, but knew general intent to use as access = sufficient knowledge) - Matharu (knowledge of detriment in pure acquiescence cases is needed – knowledge of expectation alone ≠ unconscionable)

Whether O knows about his own rights also seems relevant – in Taylors, O unaware C’s claim had become unenforceable, so found not unconscionable – but if O encourages the expectation this will be harder to make a defence.

Where the assurance is active, the representation must objectively be intended to be taken seriously and relied on (Thorner, Hoffmann); the representation must be ‘clear enough’ in the given context (Thorner, Walker). - Wayling v Jones (1995) (D bought hotel, told P it would be his in D’s will; D sold, bought new hotel – express, clear promise to P to change will, forgot, died; P had estoppel) - Gillett v Holt (2001) (statements over several decades that G would get farm; together amounted to sufficient assurance over time that K intended it to be G’s) - Murphy v Burrows (2004) (assurances were equivocal ≠ estoppel) - Thorner v Major (2009) (‘tacitern’ farmer; handed D life insurance policies for death duties – this created expectation of inheritance, not mere hope – context significant) - Cobbe v Yeoman’s Row (2008) (flats bought for development; developer secured PP, L reneged on promise to sell – HOL said insufficient assurance, oral promise not specific enough in context of commercial world (not binding agreement under s 2 LPMPA)) § Saunders v Al Himaly (2017) (PE rejected by trial judge, b/c commercial agreement not binding, on basis of Cobbe) - Matchmove Ltd v Dowding (2016) (A promised to sell B a plot + meadow, conducted as if binding; B paid, A tried to backtrack; trial judge said PE, CA no comment) § Distinguished from Cobbe b/c intended to be binding, not just agreement in principle to be modified - Hoyl Group Ltd v Cromer Town Council (2015) (basement lease, internal stair and external access; representations of external access, T’s mistaken belief of formal right of way not corrected – sufficient assurance through passive and express assurance) - Burton v Liden (2016) (payments to mortgage for long time ‘towards the house’, necessary to meet payment – sufficiently clear assurance of interest) - West End Commercial Ltd v London Trocadeo (2015) (said it is required O makes an assurance that C is to get a property right not mere personal right relating to land) - This is the only case making this point; no authorities confirm or deny - Shirt v Shirt (2012) (son ≠ use PE for possession of family farm because oral assurances made were not clear enough – vague, unspecific)

Cobbe notes in commercial contexts, more specific assurances will likely be needed; the more specific the right claimed, the more specific the assurances must be (Praxis). Domestic and commercial claims still use same principles (Whittaker v Kinnear). The assurance must be as to reasonably identifiable land (Thorner, Praxis) – no need for precise scope, but reasonably clear which land the assurance applies to. Thorner recognised it was okay if the land increased or decreased in size over the years, as long as it could be identified on the day of enforcement.

The assurance can be in any form (Flowermix v Site Developments (2000)) (contract void for uncertainty as to land extent, effective through PE).

Objective assessment means C can claim even if O did not intend to make an assurance, as long as the reasonable person would believe one was made; however, if O does not know of C’s belief in assurance and does nothing ot encourage it, it will be hard to establish - Slater v Richardson (D unaware of C’s belief, did nothing to encourage ≠ estoppel) - Creasey v Sole (court should be sceptical of PE claim if only C’s uncorroborated story)

Only the interests of the person who made/acquiesced in the representation are bound by the estoppel (eg where co-trustees, estoppel cannot be generated over legal estate unless all trustees acquiesce/represent; if just one, may be over their beneficial share) - Preedy v Dunne (2016) - Wodzicki v Wodzicki (2017) (PE failed – father’s promise did not also bind step-mom)

The assurance must be such as to generate unconscionability if withdrawn - Murphy v Burrows (2004) (detriment in reliance on equivocal assurance not sufficiently substantial to say withdrawal is unconscionable) - JT Developments Ltd v Quinn (1991) (D made offer of lease to C, C improved premises, D withdrew offer; held unconscionable, PE entitled to lease) - Crabb v Arun DC (O encouraged the expectation by building gate, allowing access) - Salvation Army Trustee Co Ltd v West Yorkshire MCC (1980) (O acquiesced in C’s letter informing O detriment would be incurred = PE) - Cf. Cobbe (both parties knew no contract was made)

Where the assurance is about property left in a will, to preserve testamentary freedom a mere statement of intention to bequeath is insufficient; repeated assurances over substantial period will found a claim (Gillett; Re Basham).

2. Reliance by C on O’s representation or assurance (reliance must be reasonable – Thorner)

If representation and detriment can be shown, a sufficient causal link of reliance between them is presumed – it is up to O to disprove reliance - Greasley v Cooke (1980) (Denning: presumption of reliance; O could not disprove presumed reliance) - Neuberger doubted the reversal of burden in Steria Ltd v Hutchinson (2007), but seems valid still - Wayling v Jones (1995) (CA looked for ‘sufficient link’ of assurance and detriment – existence puts burden of proof on D to show no reliance)

Where C would have incurred the detriment regardless, no reliance - Orgee v Orgee (1997) (C’s detriment was an ordinary expense ≠ reliance) - Campbell v Griffin (2001) (C, lodger, took care of elderly couple landlords; C would have helped anyways, w/o assurances, but CA upheld PE – dual motive ≠ remove reliance) - Chun v Ho (2001) (left career and house, despite family disapproval; not explicable solely by love, must have been some reliance on assurances)

C must actually reasonably rely on the assurance; where it is a mere hope, estoppel gives no remedy. Where the agreement is ‘subject to contract’ or explicitly non-binding agreement (mere negotiation), it will not be given effect through PE by mere reason of reliance. - AG of HK v Humphreys Estate (Queen’s Gardens) Ltd (1978) (C given occupation during negotiation; made clear it could be revoked; despite detriment, no estoppel)

3. Detriment to C in consequence of reasonable reliance

Detriment is judged “at the moment when the person who has given the assurance seeks to go back on it”; detriment is required, but is not a narrow concept (Walker, Gillett) – it does not need to be “expenditure of money or other quantifiable financial detriment”, but must be something “substantial”. View detriment as part of broad inquiry of unconscionability. - Gillett v Holt (2001) (stayed on farm, low wage, improved cottage he lived in = detriment) - Davies v Davies (2014) (daughter left job to work parents’ farm for ‘home for life’; paid lower-than-market salary, didn’t get along w parents, didn’t enjoy job = detriment) - Crabb v Arun DC (1976) (sold off half land in reliance on access point = detriment) - Hoyl Group Ltd v Cromer TC (2015) (LA-approved plan dependent on external access; company surrendered upper floor lease, preventing internal access = detriment) - Southwell v Blackburn (2014) (C gave up secure tenancy (good rent) to live w D = detriment) - Jennings v Rice (2002) (gardener essentially fulltime unpaid carer, ‘this will be yours one day’ = detriment) - Matharu v Matharu (1994) (spending by C’s husband expcetionally taken as detriment to C because reduced about left for family)

In assessing detriment, any countervailing benefits C received from O must be considered; it is only detriment if C’s act of detriment exceeds the benefits received - Sledmore v Dalby (1996) (parents allowed daughter + husband to live rent-free; D died, H evicted; no PE, money spent renovating cottage outweighed by 18 years rent free) - Henry v Henry (2010) (PC) (grandson worked farm, gave up opportunity to leave island for better life; benefit of living rent-free outweighed by not leaving St Lucia = detriment) - Coombes v Smith (1986) (C moved in with O, decided not to work; rejected as detriment, free home is a benefit)

Detriment itself is not enough without the other elements - Taylor v Dickens (1997) (C worked for years without pay expecting inheritance; detriment, but no actual assurance ≠ PE)

Where the ‘detriment’ is incurred by contributing to cost of running home or as substitute for rent, detriment will not be found (note if C already has lesser interest in land, detriment may be related to the interest rather than reliance) - Lee-Parker v Izzert (No 2) (installed new windows, other improvements ≠ detriment, explained by free occupation) - Taylors Fashions (C’s expenditure benefitted the current lease, not claimed renewal) - Stilwell v Simpson (C’s work done for his benefit as a current tenant)

4. There must be unconscionable conduct (as per Taylors above); unconscionability alone will not found estoppel claim without all the other elements (Cobbe, Scott)

Carnwath in Gillett noted it is often the promisor’s knowledge of the detriment in reliance which makes it unconscionable to renege.

Walker in Cobbe envisioned ‘unconscionability’ as playing a role of “unifying and confirming” the other elements – if the other elements are present but the result does not shock the conscience of the court, must look at the analysis again. Tomlinson in Southwell also acknowledges without unconscionability, the individual elements may not be sufficient to give rise to the equity.

McFarlane (2014) compares unconscionability to a “set of stabilizers on a child’s bicycle” – over time, need to use unconscionability may disappear, but right now we need this extra requirement to develop PE as extra doctrine desgined to prevent unconscionable conduct.

Where C acted unconscionably, there cannot be a PE claim; Yeo v Wilson (bullying by C), Murphy v Rayner (UI by C), Gonthier v Orange Contract Scaffolding Ltd (C fabricated documents), J Willis & Son v Willis (C lied, fabricated in litigation = no remedy). But in Williams v Staite, where misconduct occurred after licence was conferred, court refused to terminate the licence.

If the PE requirements are met, C will have inchoate equity and can go to court to have it satisfied.

Satisfying the Equity The court must find “the minimum equity to do justice to the plaintiff” (Scarman, Crabb). The court will not exceed what was promised through PE (Orgee v Orgee (1997)).

The court can give any remedy which is appropriate – eg Thorner (freehold), Pascoe v Turner (fee simple), Seward v Seward (2014) (entire beneficial interest subject to D’s right to live for life), Joyce v Epsom and Ewell BC (2012) (easement), Hoyl (easement), Bibby v Stirling (1998) (easement – right to use greenhouse), Matharu v Matharu (1994) (licence to occupy for life), Inwards v Baker (personal right – licence to use land for life), Campbell v Griffin (2001) (monetary remedy secured by charge over land), Wayling v Jones (1993) (monetary compensation in lieu b/c land disposed of), Lothian v Dixon (2014) (residuary estate of a will), Sledmore (nothing). - Dodsworth v Dodsworth (1973) (C expected occupation for life; CA instead gave monetary award by reference to expense; not unfair, since C had enjoyed rent-free housing) - Pascoe v Turner (1979) (cohabitation for 9 years; O left C, said house was hers, but failed to transfer legal title, then sought to evict C; C had only spent £230 (but out of her £1000) – court awarded C the fee simple – given FS because of proportion to her savings and because feared O would try to deny her full enjoyment of a lesser right like licence) - Sledmore v Dalby (1996) (work undertaken in reliance that C could live there; 18 years free occupation, little need for property – no remedy) - Gillett (CA said expectation was maximum equity, court duty to achieve minimum required)

Cf. Where C is using PE as a defence to O’s claim, O’s claim will be dismissed and C will be left to enjoy the right (Gofford v Graham) (1998)).

In exercising discretion, the court takes an approach guided by principle. In Davies v Davies, Lewison noted conflicting lines of authority: 1. The aim is to ensure C’s reliance interest is protected (compensated for detriment suffered) 2. The aim is to give effect to C’s expectation unless disproportionate.

CA in Cobbe discussed whether disproportionate advantage would be gained by O if the reliance measure rather than the expectation measure were used. This would be exceptional.

Lewison (and commentators) preferred the first reliance-based approach – essence of PE is combined expectation and detriment, so if the detriment can be quantified and C is compensated, this ought to remove the foundation of the claim.

Jennings v Rice Guidance Jennings v Rice, Aldous: value of the equity “will depend upon all the circumstances including the expectation and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.” - Lewison in Davies confirmed this approach

The Jennings approach is that, where there is a mutual understanding in reasonably clear terms, the award should meet C’s expectation (unless out of proportion to detriment). Distinct from cases where the expectation is uncertain.

Walker, Jennings: where “the [D and C] have reached a mutual understanding which is in reasonably clear terms but does not amount to a contract … the court's natural response is to fulfil the claimant's expectations. But if the claimant's expectations are uncertain, or extravagant, or out of all proportion to the detriment which the claimant has suffered, … the claimant's equity should be satisfied in another (and generally more limited) way.”

Lewison (Davies): 1. Assurances and reliance had consensual character + C’s expectations and the element of detriment are defined with “reasonable clarity” + C has performed their part of the quasi- bargain = court likely to vindicate C’s expectations 2. Otherwise, it is a useful working hypothesis that there is a “sliding scale … the clearer the expectation, the greater the detriment and the longer the passage of time during which the expectation was reasonably held, the greater … the weight that should be given to the expectation.”

Where certainty, risk of disproportionality reduced, natural outcome is to fulfil expectation. Overall objective (Walker) is to avoid unconscionability.

- Jennings v Rice (2002) (inappropriate to award whole house since detriment of caring ≠ proportionate; £200k instead, would buy nice house in area) - Powell v Benney (2007) (O owned properties; let couple run music lessons, said would leave properties in will – they did chores, provided money; will failed; PE succeeded, but O and couple did not have bargain (no quid pro quo) so broadly proportionate £20k remedy) - Suggitt v Suggitt (2012) (J helped at farm for no pay, F provided living expenses, food, etc; F left farm for C, with wish C transfer to J if C felt J ready; F made unconditional promises to J that it would someday be his; J got the whole farm – not disproportionate) - Jennings interpreted as not needing proportionality of detriment and reliance, but if expectation disproportionate to detriment, satisfy equity another way - Bradbury v Taylor (2012) (nephew + W agreed to live w uncle, they’d inherit house; U tried to disinherit; PE, whole house awarded (expectation measure despite small detriment))

Proprietary Estoppel and Contract Formality Rules Contracts require signed writing (s 2(1) LPMPA) unless there is an implied, constructive or resulting trust. There is no specific exemption for PE.

v Where a CT exists on the same facts as a PE claim, it is exempt from formality requirements – can rely on CT exception (Yaxley v Gotts (2000))

v Where CT doesn’t exist, in Cobbe Scott said (obiter) that PE can’t enforce contract invalid through lack of formality; cf. Bean in Whittaker v Kinnear (2011) said you can use PE to evade contract void for formality (specifically noted sale of land); Ghazaani v Rowshan (2015) agreed - Ghazaani v Rowshan (2015) (oral agreement for transfer of property did not meet LPMPA s2, but was upheld by PE) - Matchmove Ltd v Dowding (2016) (oral agreement to buy meadow intended by friends to be immediately binding, despite no formality; first instance regarded as sufficient for PE) - Cf. Evans v James (2000) (PE did not cure lack of valid contract for transfer of land) - Cf. Canty v Broad (1995) (sale didn’t meet s 2; could not claim by PE) - Kinane v Alimamy Mackie-Conteh (2005) (PE and CT used to validate mortgage which was not formally legal or equitable)

Suggests if O promises to sell land to C and intends it to be immediately binding, and C relies, C can bring PE claim if necessary to prevent unconscionability. Neuberger (2009) (extra-judicial) says the fact that a contract is void is irrelevant – the very reason for the claim in PE is that there is no enforceable contract – the question is whether inequitable to enforce strict legal rights.

Matthews in Muhammad v ARY Properties Ltd (2016) likes Bean and Neuberger’s approach – difference between seeking to enforce contract right when it is made without reliance, and seeking to make good a promise objectively intended to be relied on once the promised has been relied on to detriment. PE is only enforceable after reliance to detriment, judging unconscionability retrospectively. No PE can be made where parties intend to make formal contract and don’t intend to be bound until the occurs, and no contract has been entered; this is because the assurances are not intended to be relied on. Cf. PE, where D is not sued on the contract and PE does not arise at time of contract; rather D is sued on the equity arising from following conduct. PE is not about enforcing contract at all.

Impact of Proprietary Estoppel Claims on Third Parties

Where O makes disposition to X after court has satisfied C’s inchoate equity, ordinary rules of priority are applied to C’s newly declared right (s 28-9, Sched 3 LRA); if the right does not survive, consider whether X has acted unconscionably to create a direct duty to C (fresh right) (see s 3). Note: the equity may not yield a proprietary right at all, in which case it definitely will not bind.

Where O makes disposition to X before court satisfies C’s inchoate equity, if O’s title is registered C’s right (the inchoate equity) is treated as proprietary for purposes of priority (s 116 LRA: “an equity by estoppel … has effect from the time the equity arises as an interest capable of binding successors in title”). Normal priority applies – can protect through Sched 3 p2 or Notice (?) - Birmingham Midshires Mortgage Services Ltd v Sabherwal (2000) (Walker: in a family situation, inchoate equity from PE can be overreached by same mechanism as trust)

For non-registered land, the balance was towards proprietary quality before LRA 2002 – proprietary, bind P on transfer depending on notice. CA in United Bank of Kuwait plc v Sahib (1996) held not binding, but recent cases support proprietary status.

In Lloyd v Dugdale, CA said if C is in AO, right arising by estoppel binds as overriding interest under LRA 1925 – clearest evidence estoppel was proprietary pre-LRA 2002.

Cf. McFarlane who feels the inchoate equity should be treated as what C is likely to get – should not bind if C is only going to get a personal right through satisfaction. This would be impractical approach, hard to predict (purpose of inchoate equity is that we do not know at that point).

It has not been addressed whether C can transfer the benefit of the inchoate equity. In Raffaele v F&G Raffaele, C died and C’s estate was given a monetary remedy equal to value. Many expectations will be personal to C, not susceptible to status – related to nature of promise, not estoppel itself. The few cases do seem to support assignability (Ives v High left open, but judgement seemed to favour).

Comparing PE and Common Intention Constructive Trusts Browne-Wilkinson in Grant v Edwards says the two doctrines “rest on the same foundation and have on all other matters reached the same conclusions”. Oxley, Chadwick said there is “no difference in outcome … whether the true analysis lies in [CT] or in [PE]” (this is inaccurate). In Rosset, Bridge said if there was agreement + detrimental reliance, PE or CT could work. In Yaxley, court said CT is similar or identical to PE in context of actual common intent. However, Walker and Neuberger in Stack said they are distinct despite overlap and should not be assimilated. Nourse in Stokes v Anderson also unwilling to treat as one doctrine. - Yaxley v Gotts (C claimed estoppel because of agreement on ownership of land; CA allowed on basis of CT linked to the PE; Walker gave this judgement, but in Stack said he was “now rather less enthusiastic about the notion that [PE] and [CI CTs] can or should be completelt assimilated”)

Gardner (2014) notes PE applies to a greater range of circumstances and can lead to a greater range of remedies. - Southwell v Blackburn (2014), Arif v Anwar (2015) (no CI sufficient for CT, but sufficient assurance for PE)

Comparison: 1. Both PE and CT are triggered by assurance, reliance and detriment, but PE is wider (assurance in CT has higher evidential threshold of common intention – Southwell, Arif) 2. CT arises from common intention (mutual) whereas PE comes from unilateral assurance (Arden notes in Kinane) (but note cases like Stack don’t seem mutual?) 3. Both provide a means of evading formality, although exception for CT is more secure 4. PE presumes reliance, but reliance might (?) not be presumed for CT (in Edwards, BW wanted to apply to CT; Rosset, Stokes seemed to accept for family context) 5. For CT, interest under trust arises immediately; for PE, unknown interest will be determined on application to court, inchoate equity arises in interim 6. CT leads to equitable ownership under TOLATA; PE can be satisfied by any remedy (discretionary)

CT and RT rights can be overreached; PE before crystallization subject to normal priority, overreaching in family context.

Subrogation

Equitable remedy which gives effect to a property right that already exists in equity; it arises from conduct of parties in circumstances where it would be unconscionable for one party to deny the proprietary interest of the other.

Where A is the mortgagee over X property, but does not receive the promise security (priority), A can be subrogated to the rights of B who previously had security over X and whose debt was discharged in whole or part by the loan from A. A is presumed to intend the mortgage will be kept alive for his benefit when this occurs, and is thus entitled to the same security as B for the amount discharged by A’s loan.

Subrogation does not apply where the money is not put forward to discharge the debt (eg guaranteeing a loan for someone – Bankers Trust Co v Namdar).

Subrogation does not require the knowledge or consent of the owner of X. It also does not matter if A’s failure to acquire the intended security was A’s fault. Subrogation cannot put A in a better position than he bargained for.

- Boscawen v Bajwa (1996) (AN loaned to P to purchase V’s house; AN paid to P’s solicitor, intending S1 to pay to V’s solicitor on completion, but S1 paid the money before completion and S2 used the money to discharge V’s mortgage to H; completion never occurred, AN never got their charge, S1 bankrupt; CA held S2, in paying off V’s mortgage to H, was deemed to intend to keep the mortgage alive for the benefit of AN – AN was entitled by subrogation to charge on the proceeds of sale of Vs house in priority to V’s creditors)

Subrogation can be a way of gaining priority where one co-owner did not consent to a second mortgage - Equity & Law Home Loans v Prestidge (1992) (husband got second mortgage without W’s consent; she was bound by the new mortgage up to the original amount despite no knowledge)

Pending purchase money, a vendor has security over the object of the sale (an unpaid vendor’s lien in the land); if A’s money reaches the vendor, A can claim to be subrogated to the vendor’s security to that extent. - Halifax plc v Omar (H advanced mortgage money to fraudster, subrogated to an equitable charge held by the vendor who received the bulk of H’s money)