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Pettit in Equity & Law Of Trust (4th Ed) describes specific performance
as an order of the court directing a
2.
Power
of
the
Court
to
order
specific
performance
is
discretionary
Power is given to this court in its discretion to order the specific performance
of certain contracts by virtue of the Specific Relief Act 1950 (Act 137)
[SRA] .
Section 11 SRA lays down the conditions under which the discretionary
powers are exercisable . Specific performance may be enforceable :a)
b)
Where there is no standard to ascertain damages caused by the nonperformance of the act agreed to be done : Section 11(1)(b) SRA .
Gan Realty Sdn. Bhd. & Ors. v. Nicholas & Ors. [1969]2 MLJ 110,
HC : Defendant refused to sell shares of company. Plaintif claimed for
specific performance of the agreement and a permanent injuction. The
court held that where the shares of the bank were not available in the
open market, the court could therefore order specific performance of an
agreement for the sale of the shares.
H.A. Securities Sdn. Bhd. v. Ng Kong Yeam [1993] 4 CLJ 433, HC :
Defendant
specific
refused to sell
claimed
for
performance was not granted, on the grounds, inter alia, that the shares
contracted for were freely available in the open market, and that
damages would be an adequate remedy.
c)
3.
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property
is
not
remediable
by
award
of
monetary
compensation
If the Defendant fails to raise anything which could rebut the presumption
under Section 11(2) SRA that in an application for specific performance of an
agreement for the sale and purchase of immovable property, damages in the
form of money was not adequate, the court will order specific performance of
the agreement.
Sekemas Sdn Bhd v Lian Seng Co. Sdb Bhd [1989] 2 MLJ 155, SC :
Plaintif agreed to sell land to Defendant, however the Defendant failed to
pay the last installment on the agreed date. The Plaintif then claimed for
specific performance.The Supreme Court held that the Section 11(2)SRA
will prevail in a case involving contracts dealing with sale and purchase of
property and an order for specific performance is appropriate in this case.
4.
Comparison between
SRA
In Sekemas Sdn Bhd v Lian Seng Co. Sdb Bhd [1989] 2 MLJ 155(SC) ,
the Supreme Court held that the equitable principles of specific performance
are provided in Section 20 and 21 SRA . Section 20(1)(a) provides that a
contract will not be specifically enforced
if compensation
adequately relieve
the non-performance
in money can
however has to be read with some reservation in dealing with contracts for
the sale
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the sale of land. Section 11(2), therefore, will prevail in cases involving
contracts dealing with sale and purchase of property.
In the case where due to the changes in the area of the land
it is
Ho
Ah
Kim
&
Ors.
Paya
Trubong
Estate
Sdn
Bhd
5.
the specific
The Respondent had bought a half share in a piece of land from the
appellant and had paid the purchase price. Subsequently the
Respondent was induced to sign another agreement under which he
was allocated a small portion of the land. The Respondent alleged that
he was induced by the false representation of the Appellant to sign the
second agreement. He applied to the court for a declaration that he
was the owner of one half of the land and an order that the land be
subdivided. Portions of the land had however been transferred to the
sons of the appellants. The sons were not parties to the action. It was
held that either Section 13 or Section 18(3) SRA may properly
be
that may be
further performance
pereformed
provided plaintif
relinquishes
deficiency of performance.
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c)
for
[ City
Investment
Lee Hoy & Anor v. Chen Chi [1971] 1 MLJ 77 ,FC : This is an appeal by
the defendants against the judgment of the High Court at Kuala Lumpur
where the plaintiff claimed (a) for the recission of an agreement made
between them and the return of $16,300, or alternatively;(b) for the refund
of $6,794.20 from the defendants. The Federal Court held that the appeal
should be allowed. It would appear that the Court may award compensation
under Section 18 only in a case where the plaintiff asks for specific
performance, and the Court decides that specific performance ought not to
be granted, though there has been a breach of the contract by the
defendant, or where though specific performance ought to be granted, but
that it is not sufficient to justify the justice of the case, and that some
compensation for breach of the contract should also be made, to the plaintiff.
Only in those circumstances may the Court award compensation. In the
present case, in the first place, the plaintiff did not ask for specific
performance, and even if he did, most probably the Court would dismiss it
because there was nothing that was still required to be done by the
defendants under the contract made between them.
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Section 18(1) SRA provides the right of the party suing for specific
performance to ask for compensation in addition to or in substitution
for, specific performance.
b)
Ismail Bin Mohd Yunos & Anor v. First Revenue Sdn Bhd [2000]
MLJ 42 , HC: In this case, the court invoked Section 18(2) SRA and granted
compensation in lieu of specific performance.
7.
8.
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Section 20 SRA set down eight (8) instances of contract which cannot be
specifically enforced. There are as follows:i)
3 instances
where specific
to
superintend
the
works
required,
say,to
complete
the
ii)
Ismail Bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000]
5 MLJ 42, HC : Any property in respect of which specific performance
of a contract for sale is soughtmust be clearly identifiable. No specific
performance
S.20(1)(d)
SRA
provides that
iv)
v)
years.
Marble Terrazzo Industries Sdn Bhd v Anggaran Enterprise Sdn
Bhd & Ors [1991] 1 CLJ (Rep) 691
vi)
S.20(1)(2) SRA provides that the court does not enforce specific
performance of agreements to refer to arbitration.
Yip Chee Seng & Sons Sdn Bhd v Ornaconstruction Corporation
Sdn Bhd [1998] 7 MLJ 655.
9.
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S.21(3) SRA states that the court is may properly used its discretion to
decree specific performance is where the Plaintif has done substantial
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10.
b)
c)
d)
a contract between
public companies.
f)
before its corporation is entered for the purposes of the company and
warranted by the terms of the incorporation.
11.
if the applicant is someone who could not recover compensation for its
breach - not a party to the contract
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b)
if the applicant
insolvent /bankrupt.
c)
if the applicant already sued under breach of contract and obtained his
remedy.
d)
if the applicant had notice that a settlement of the subject matter had
been made and already in force.
Plaintif need to show that he was ready and willing to perform on the
contract.
Where the plaintiffs were ready and willing to complete at all times and the
purported repudiation of the contract by the vendors had not been accepted
by them, they will be entitled to specific performance.
[ Caltex Oil (Malaya) Ltd. V Ho Lai Yoek & Anor (1964) MLJ 76 ]
In a suit for specific performance, a party treated and was required by the
court to treat the
suit to
readiness and willingness,from the date of the contract to the time of the
hearing,to perform
12.
under them
by
subsequent title
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13.
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c)
of mistake,
14.
15.
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differences
The
affidavit
supporting
the
application should be made
by a
person who can swear positively to the
facts verifying the cause of action. [Or
81 r (2)(2) RHC 1980]
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16.
under
in
1980.
Nonetheless, by virtue of Order 73 r 5 (2) RHC 1980, an application
may be made
performance.
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