LAI MEW SENG V COSMOPAC SDN BHD ( 1998 )

1) FACTS

a) The defendant, a licensed housing developer organised a sales launch of their

housing project known as "COSMO CITY" located at Mukim Plentong,
Johor Bahru to woo purchasers.
b) That sales launch was held on January 9, 1991 at the world trade centre hall 3,
Republic of Singapore. Brochures, drawings and scale models of the
shophouses were displayed. A copy of the drawing to show the development
project can readily be seen in exhibit "B" of the affidavit of the plaintiff that
was affirmed on April 10, 1997 as reflected in enclosure 9.
c) The plaintiff became interested and proceeded to sign a booking proforma for
the purchase of one unit four storey shophouse on January 9, 1991 upon
payment of a cash booking fee which was non-refundable in the sum of
RM1,500.00 which represented a 1% out of the purchase price of
RM150,000.00.
d) On that very day, the defendant issued to the plaintiff official receipt vide
number 1452 dated January 9, 1991 (exhibit "C" of enclosure 9) which was
later followed by another official receipt dated May 29, 1991 vide number
0087 (exhibit "D" of enclosure 9).

2) ILLEGALITY

a) An illegal contract will not be enforced by specific performance (Briggs v.

Parsloe (1937) 3 ALL E.R. 831 at 838). The court will not interfere indirectly
to enforce an illegal contract by awarding damages or compensation or for
that matter ordering the profits to be accounted for among the parties
interested (Sykes v. Beadon (1879) 11 Ch. D. 170 at 197 per Jessel M.R.).
Rose Hall Ltd v. Reeves (1975) A.C. 411, (1975) 2 W.L.R. 890, P.C. lays
down the proposition that the court, in its discretion, may order specific
performance of a contract which was illegal when made but later validated
by legislation.
b) The court may even proceed to sever the illegal term from the legal term of
the contract so as to enforce by specific performance that legal
term (Newman v. Dorrington Developments Ltd (1975) 3 ALL E.R. 928,
(1975) 1 W.L.R. 1642). Severance of an objectionable part of the covenant
can be seen in Goldsoll v. Goldman (1915) 1 Ch. 292 C.A. - a classic
example of a severance in a covenant relating to the sale of a
business. Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Company
Ltd (1894) A.C. 535 is another example of severance in the context of a
covenant on the sale of a business.
c) There the court held that the second part of the covenant, relating to engaging
in any business competing with that of the company was void because it went
further than was reasonably necessary to protect the business acquired.
d) The court proceeded to sever the second part from the first part as the two
were clearly separable promises.
3) HELD

a) In my judgment, the booking proforma in the present case couched in the

language employed therein when read together with the pleadings, the
affidavits and the correspondences exhibited thereto and when applying it to
the Act and having the benefit of Daiman Development's case - all point to
one direction only.
b) That direction would be that the booking proforma constituted a binding
contract between the aggrieved plaintiff and the recalcitrant defendant.
c) The execution of the sale and purchase agreement which was cleverly
worded as an "option agreement" in order to cloud the issue, was but a mere
formality. The booking proforma cannot by any stretch of the imagination, be
construed to make the contract between the parties a conditional contract.
d) The conclusion was obvious. The recalcitrant defendant must face the wrath
of the law. For these reasons, I granted enclosure 10, particularly prayers (a)
and (c) forthwith.
 KHEAM HUAT HOLDINGS V THE INDIAN ASSOCIATION , PENANG
( 2000 )

1) FACTS

a) The defendant was a non-profit organization incorporated under the

Companies Ordinance 1924 as a company limited by guarantee. The
defendant was allowed by its memorandum and articles of association (M &
A) to raise funds to promote its objects, subject to the approval of a two-third
majority of the defendant’s general meeting and the consent of the court. The
president of the defendant for the period 1983 to 1994 (except for 1988) was
one SM, who was also the chairman of the management committee (MC)
which managed the defendant.
b) The MC was empowered to establish sub-committees which were
subservient to the MC and which could not make decisions binding on the
defendant. One such sub-committee was the Building Sub-Committee (BSC).
c) The position of chairman of the BSC was traditionally held by the president.
The plaintiff had dealt with SM as the chairman of the BSC and had entered
into a Memorandum of Understanding (MOU) to develop land belonging to
the defendant.
d) The MOU was discussed at the defendant’s EGM in January 1993, although
there was no approval by way of resolution. An EGM held in May 1993
discussed the need to amend its M & A but instead resolved to waive the
requirement of the court’s consent. In 1994, one VM was elected President of
the defendant. VM did not recognize the MOU as being binding on the
defendant. The plaintiff sued for a declaration that the MOU was binding and
to restrain the defendant from breaching it.

2) HELD

a) Held, dismissing the application:

b) The MOU was subject to:
(i) obtaining the consent of the general body of the defendant;
(ii) obtaining the consent of the High Court;
(iii) a final agreement to be entered into; and
(iv) amendments to be made by the defendant to the building plans (see p
86G–I).
c) What was ratified at the EGM of January 1993 was the acceptance in
principle of the plaintiff’s proposals. However it was clearly envisaged that a
final agreement needed to be entered into
d) The defendant being a charitable body, public interest required that the
consent of the High Court be obtained as required by its M & A. The
defendant, even through a resolution of its members, could not circumvent
this requirement
e) SM, in his role as president of the defendant and chairman of the BSC, was
merely authorized to negotiate for the defendant but not authorized to
singularly bind it
f) It was clear that the plaintiff had trusted that SM would see the whole project
through and in the end would sign up a joint-venture agreement. It was a risk
that the plaintiff undertook
g) The MOU was a simple document of understanding, a starting point for the
parties to negotiate and to agree on the intricate details of how the building
should finally be built. On its own it was too uncertain to be enforced
 GAN REALTY SDN BHD V NISCHOLAS ( 1969 )

1) FACTS

a) This was an application to dissolve the ex parte injunction granted to the

plaintiffs restraining the defendants from parting with their shares in the
Oriental Bank of Malaya Berhad the 6th defendant.
b) The facts were that the first five defendants were the directors of the 6th
defendant bank and they had agreed to sell their respective shares in the bank
to the plaintiffs.
c) The plaintiffs claimed specific performance and an injunction.
d) It was argued for the applicants that the agreement was incapable of specific
performance and therefore an interim injunction would not lie

2) HELD

a) Held, dismissing the application: in this case the shares of the bank were not
available in the open market and the court could therefore order specific
performance of an agreement for the sale of the shares and in this respect the
defendants had not established that the circumstances had changed
b) Specifics performance is not granted when….
c) Section 20 of Special Relief Act 1950 provides that specific performance will
not be granted if;
i. Money damage are an adequate relief
ii. Contract involves many minute or numerous details
iii. Contract involves on the personal qualifications of a party such as a
contract of employment
iv. Contract requires the constant supervision of the court
v. Terms of contract are not certain
vi. There is evidence of fraud
vii. There is a delay in bringing the action
 SEET SOH NGOH V VENKATASWARA ( 1976 ) 1 MLJ 242

1) FACTS

a) The plaintiff purchased a piece of land from the first defendant, the developer,
who contracted to build a house on it. It was agreed between the plaintiff and
the first defendant that progress payments were to be made by the plaintiff at
various stages of the building.
b) At the material time, the plaintiff had paid to the first defendant more
progress money than it was entitled to.
c) The first defendant sought to repudiate the agreement on the ground that the
plaintiff had no money to complete the purchase.
d) The plaintiff filed an action for specific performance of the said agreement
and various orders of injunction to prevent the registration of the transfer of
the property to a third party.
e) The Registrar of Titles was joined in as the second defendant.
f) The plaintiff obtained an order for injunction against both the first and
second defendants and further orders requiring the second defendant to lodge
a registrar’s caveat.
g) The first defendant sought to set aside the said injunctions.

2) HELD

a) Section 320(1)(a) of the National Land Code empowers the Registrar of

Titles to enter his caveat to prevent fraud and improper dealing, and if such a
possible dealing is brought to the notice of the court and the Registrar is
before the court, the court can order him to do so;
b) The first defendant had no right to repudiate the agreement and rely on a
cause (that the purchaser had no money to complete the purchase) which had
not arisen;
c) Damages would not be an effective remedy having regard to the tremendous
increase in the value of land and the costs of construction and in the
circumstances if would be prudent to preserve the status quo;
d) The respective orders for injunction and for Registrar's caveat will stand and
the first defendant will pay costs of the application to the plaintiff.
MAWAR AMAL SDN BHD V KEPONG MANAGEMENT ( 2005 ) 6 MLJ 132

1) FACTS

a) Pursuant a sale and purchase agreement ([lsquo ]SPA’), the first

defendant agreed to sell and the plaintiff agreed to purchase a piece of land.
One of the main terms of the SPA was that the first defendant would grant a
power of attorney ([lsquo ]PA’) to the plaintiff for the purpose of
developing the land.
b) There was a deed of assignment ([lsquo ]DOA’) entered into between
the first and the second defendants. By this DOA, the first defendant agreed
to assign all the proceeds arising from the SPA to the second defendant.
c) Pursuant to terms of the DOA the second defendant covenanted and
undertook with the first defendant to observe, discharge and carry out all the
duties, responsibilities, covenants, undertakings, stipulations and obligations
on the part of the first defendant as contained in the SPA. In compliance with
the SPA, the plaintiff proceeded to apply for and obtained approvals for all
the relevant plans in relation to the said development. The plaintiff also had
erected hoarding around the land and mobilised its plant, equipment,
machinery and labour force.
d) The plaintiff had also completed test piling and commenced earthworks on
the said land. However, the plaintiff was unable to proceed further with the
development as it was unable to apply for the developer[rsquo ]s licence and
the advertising permit without the PA from the registered proprietor of the
land, ie the first defendant.
e) The plaintiff demanded that the first defendant execute the PA as per the
SPA. However, the first defendant failed to do so. Vide a summons in
chambers, the plaintiff applied for summary judgment in an action for
specific performance against the first defendant.
f) The first defendant[rsquo ]s defence, inter alia, were:
(i) there was a delay in the filing of the application (encl 7);
(ii) that there was novation in law wherein the SPA had been discharged
or replaced by the DOA, thus the parties need not perform any
obligations under the SPA since it had been extinguished.

2) HELD

a) Held, allowing the application:

b) Even if there was a delay in the filing of encl 7, it did not per se preclude the
plaintiff from obtaining summary judgment. The avoidance of a trial should
have been the primary consideration in a summary judgment application and
that delay in filing, no matter how long, was irrelevant and was of no
consequence at all. More so in the instant case where it was clear on evidence
that there was no defence to this action and that there was no issue which
ought to be tried
c) The defendants[rsquo ] allegation of novation was so inconsistent with
contemporaneous documents and they were so inherently improbable that it
should have been rejected outright by the court. The DOA did not extinguish
the liabilities and obligations of the first defendant under the SPA
d) In the instant case it was certainly just and equitable for the relief to be
granted as the plaintiff had expended a substantial amount of money on the
land based on the defendants[rsquo ] promise to comply with its obligations
under the SPA in particular its obligation to execute a PA in the
plaintiff[rsquo ]s favour
 ZAIBUN SA BTE SYED AHMAD V LOH KOON MOY ( 1982 ) 2 MLJ 92

1) FACTS

a) This was an appeal from the decision of the Federal Court reported in
[lsqb ]1978[rsqb ] 2 MLJ 29.
b) The respondents had claimed specific performance of a contract for the sale
of land against the appellant.
c) The learned trial judge had found in favour of the respondents but found that
there was an oral agreement enabling the respondent to pay damages for
breach. He therefore gave damages in favour of the respondents.
d) The respondents appealed to the Federal Court seeking specific performance
of the contract and the Federal Court held that the respondents were entitled
to specific performance.
e) The appellant appealed.

2) HELD

a) The present case was one which required the exercise of the discretion of the
court to order specific performance at the suit of the purchaser. The contract
was one for the sale of immovable property, there was no sustainable
objection that the conduct of the purchaser was such as to disentitle her to
equitable relief and there was evidence that the land in question was of
particular importance for use in association with her neighbouring tin mining
operations, in particular the deposit of tailings;
b) There was not sufficient evidence in this case to show that the vendor had
agreed if she defaulted to pay $5,000 in consideration of the purchaser
agreeing not to claim specific performance and to claim only damages;
c) The fact that there was an alternative claim for damages in an action by the
purchaser for specific performance of a contract for the sale of land could not
be a fact relevant to the exercise of the discretion by the learned judge and
the Federal Court was entitled to exercise its discretion and was correct in
reversing the decision of the judge and ordering specific performance.
 KOEK TIANG KUNG V ANTARA BUMI ( 2005 ) 4 MLJ 525

1) FACTS

a) The plaintiff had entered into a sale and purchase agreement with the first
defendant for the purchase of a penthouse for the purchase price of RM2.2
million.
b) The plaintiff paid and settled the purchase price to the first defendant.
Pursuant to Article V of the sale and purchase agreement, the obligation fell
on the first defendant to deliver vacant possession of the penthouse to the
plaintiff upon full payment of the purchase price.
c) Failing which the first defendant shall pay to the plaintiff liquidated damages
at the rate of 10% per annum on the purchase price from the date of default to
the date of compliance.
d) This was an application by the plaintiff for specific performance of the sale
and purchase agreement, vacant possession of the penthouse and liquidated
damages.

2) HELD

a) The plaintiff had performed his part of the bargain. The purchase price had
been paid in full by the plaintiff and he was entitled to specific performance
of the sale and purchase agreement.
b) The first defendant must deliver vacant possession of the penthouse to the
plaintiff within 10 days from the date of the service of the order of the court.
c) The first defendant must also pay the liquidated damages on the purchase
price at the rate of 10% per annum until the delivery of vacant possession of
the penthouse bearing in mind that under s 19 of the Specific Relief Act 1950
liquidation of damages is not a bar to specific performance.
d) The first defendant must, in addition, pay the interest at the rate of 8% per
annum of the purchase price from the delivery of vacant possession to the
date of full payment.
e) The rate of interest at 8% per annum is in compliance with O 42 r 12 of the
Rules of the High Court 1980 (see para 21).
DAYANG NURFAIZAH BTE AWANG DOWTY V BINTANG SENI ( 2004 )2
MLJ 39

1) FACTS

a) The first defendant applied for an interlocutory injunction against the

plaintiff to restrain the plaintiff from appointing or engaging any person,
other than the first defendant, as her personal manager and to restrain the
plaintiff from making any public performance without the consent of the first
defendant.

2) HELD

a) Held, dismissing the application with costs:

b) The management agreement was, in essence, a contract to render personal
services and thus, by reason of s 20(1)(b) of the Specific Relief Act 1950,
which provides that a contract to render personal services is not enforceable,
the first defendant could have no action for specific performance of the
management agreement against the plaintiff
c) In deciding whether or not to grant the interlocutory injunction, the court was
duty bound to consider whether the first defendant had a cause of action
against the plaintiff. For, should the court find that the first defendant had no
cause of action against the plaintiff, it must dismiss the interlocutory
injunction
d) As the first defendant, whether in the counterclaim or in the interlocutory
application, was seeking to enforce the performance of a contract for
personal services, a remedy which is barred by s 20(1)(b) of the Specific
Relief Act 1950, she therefore had no cause of action against the plaintiff
(see para 19).
 MOHAMMAD BIN BAEE V PEMBANGUNAN FARLIM ( 1988 ) 3 MLJ 211

1) FACTS

a) On 13 January 1979, the plaintiff entered into a sale and purchase agreement
with the defendant company, a housing developer, to purchase in a housing
estate which the defendant company was developing a lot together with a
single-storey house to be erected thereon.
b) The defendant expressly covenanted and agreed that the construction of the
house would be completed and be ready for delivery to the plaintiff within 18
months from the date of execution of the agreement, ie on or before 13 July
1980. The plaintiff filed his writ on 15 January 1985 and even by that date
the house was not ready.
c) The plaintiff claims specific performance of the agreement, the delivery of
vacant possession of ‘a complete house’ in the housing estate, and liquidated
damages.
d) The plaintiff also claims special damages, and or alternatively damages for
breach of contract, and costs.
e) The defendant filed its defence.
f) The plaintiff took out a summons to strike out the defence and for final
judgment to be entered against the defendant for the reliefs claimed.
g) On the date of the hearing of the summons, counsel for the defendant
conceded there was no defence to the claim but disputed the right of the
plaintiff to specific performance, liquidated damages and special damages as
claimed.

2) HELD

a) If specific performance is granted, that would entail the receiver having to

employ contractors to complete the house, incurring personal liability on the
part of the receiver under s 183 of the Companies Act 1965 (Revised 1973).
Failure on the receiver's part to complete the plaintiff's house, which in effect
means failure on the receiver's part, would open the receiver to being in
contempt of court and it would be wrong for the court to order specific
b) The facts show that the contract cannot be specifically enforced as the court
will not be able to superintend the works required to complete the house. It is
futile merely to order the completion of the house on the lot and the transfer
of the property to the plaintiff; all that he would get would be the shell of a
house, not fit for human habitation and of no commercial value so long as the
housing estate remains uncompleted.
c) The remedy lies in damages for breach of contract. The plaintiff succeeds in
his claim with costs save that this is not a proper case for granting specific
performance.
 SAAD MARWI V CHAD HWAN HUA ( 2001 )

1) FACTS

a) The appellant is a farmer. He earns part of his income by harvesting coconuts

from land that he rents from the respondents. The appellant also owns two
pieces of land. I will refer to them as “the subject property”. The appellant’s
predecessor in title had acquired the subject property by prescriptive right
under the land law in force in Penang at the material time. The appellant’s
root of title was therefore under a cloud and was defeasible.
b) On 11 November 1975, the appellant entered into an agreement to sell the
subject property to the respondents for RM42,000. There is mention made in
the agreement of the payment of a deposit of RM4,200. As an issue has been
raised in respect of this, I will deal with it in some detail later. For the
moment, let me complete the story.
c) The agreement made it plain that the appellant’s title to the subject property
was under a cloud and was defeasible. An indorsement on the title said as
much. A clause in the agreement required the appellant to make good title
within 12 months of the agreement. This included the obtaining of an order
of court establishing his right of ownership of the subject property. The result
was to be a cancellation of the indorsement on the title by the appropriate
authority in order to produce indefeasiblity of title. Another clause in the
agreement (cl. 6) provided that in the event of the appellant failing to make
good his title, that is to say, failing to convert it into an indefeasible title,
within the aforesaid period of one year, the respondents would be entitled to
a refund of the deposit paid to the appellant under the agreement. As it
happened the appellant did not obtain the necessary cancellation of the
indorsement until 22 January 1981. But he never obtained the order of court
at all. Meanwhile, on 24 October 1979, while his application for cancellation
of the indorsement was pending, the appellant, by a letter of that date,
purported to terminate the agreement with the respondents. The respondents
refused to accept the termination. But they did not bring proceedings until 25
May 1981.
d) The appellant defended the claim on two broad grounds. First, he claimed
that the agreement had been vitiated by undue influence. His second line of
defence was that the respondents were barred by laches from seeking relief.
e) The learned judge who heard the action rejected the defence of undue
influence. But he declined specific performance apparently on the ground
that - and I quote his words - “both parties were equally to blame for the
predicament in which they found themselves.” The judge then awarded the
respondents damages of RM1.2 million representing half the current market
value of the subject property. The appellant’s appeal is directed against this
order of the learned judge. The respondents cross-appealed against the
judge’s refusal to decree specific performance. However, at the conclusion of
his argument, counsel for the respondents informed us that he was
abandoning the cross-appeal.
f) The appellant’s case on the appeal was directed along two lines. First, it was
argued that while the learned judge was entitled to reject the defence of
undue influence, he ought to have gone on to hold that the appellant had
established a case of unfair advantage. The second submission made in
 support of the appeal is that in any event the claim ought to have been
dismissed on grounds of laches. I will address each of these heads of
argument in turn.

2) HELD

a) For the reasons already given, I would allow this appeal. The orders made by
the judge are set aside. The respondents’ action is dismissed. The appellant
will have the costs of this appeal and those incurred in the High Court. The
deposit paid into court is to be refunded to the appellant.
b) My learned brothers Mokhtar Haji Sidin and Abdul Kadir Sulaiman, JJCA
have seen this judgment in draft and have expressed their concurrence with
the reasons herein.
RM VENKATACHALAM CHETTIAR V NKR ARUNASALAM CHETTIAR
( 1953 ) 1 MLJ 234

1) FACTS

a) In 1943 the fully authorised agent of the registered proprietor of a piece of

land negotiated with the plaintiffs regarding its sale. In due course, an oral
agreement was entered into; the agreed purchase-money was paid in full; a
transfer in accordance with the provisions of the Land Code was executed;
the purchasers were let into occupation; and, after a short delay while the
vendor's agent complied with the condition of sale that the land should be
sold free from encumbrances, there was delivery to the purchasers of the
document of title.
b) The delay was due to the then Government authorities' delay in assessing a
tax which, under the law as it then stood, had to be paid before registration
could be effected. When the tax was ultimately assessed, the purchasers took
immediate steps to pay it and so enable their transfer to be registered. It was
incapable of registration by reason of the death in January, 1945, of the
registered proprietor. The administrator of the deceased proprietor now
having refused to take necessary steps to complete the contract, the plaintiffs
came to the Court to ask for an order of specific performance.
c) The defendant resisted specified performance on two grounds:
(i) that the plaintiffs' claims was barred by limitation;
(ii) that there would be hardship if the Court were to exercise its
discretion as it was asked. He relied on the provision in the Debtor and
Creditor (Occupation Period) Ordinance contained in section 11(5) (c)
the effect of which was that in any case where a difference or dispute has
arisen touching the reinstatement of any security under the section, any
person interested may within 18 months apply to the Court by way of
originating summons "for such relief as the nature of the case requires–.

2) HELD

a) Held: the provision of section 11(5) of the Debtor and Creditor (Occupation
Period) Ordinance is purely ancillary to the provisions of section 11 as a
whole and can have no relation to a question of contract which is not affected
one way or the other by the provisions of the Ordinance.
 AMERICAN CYANAMID V ETHICON LTD ( 1975 ) AC 396

1) FACTS

a) The appellant was a company that held a patent for artificial absorbable
surgical sutures.
b) The respondent was a company that intended to launch a suture to the British
market which the appellant claimed was in breach of its patent.
c) At first instance, the appellant was granted an injunction preventing the
respondent’s use of the type of suture at issue until the trial of the patent
infringement.
d) On appeal, the Court of Appeal discharged the injunction on the basis that the
case for patent infringement was not made out. The appellant appealed to the
House of Lords.

2) ISSUE

a) The issue on these facts was primarily the extent of any substantive claim
necessary for the grant of an interim injunction.
b) The House of Lords however, set out detailed guidelines with regards to how
the courts should deal with the grant of interim injunctions in general.

3) HELD

a) It was held that

b) it was not the courts’ role to consider conflicting evidence in respect of an
interim application. This was a matter for trial.
c) All that was necessary at this stage was that the claimant should show that
there was a real issue to be tried.
d) The court should consider whether damages were an adequate remedy for a
claimant if an injunction was not granted. If so, an injunction would not be
available.
e) If damages were not an adequate remedy, the court should then ask whether
the claimant would be able to give an undertaking in damages to the
defendant.
f) If it was considered that there was any difficulty regarding the availability of
damages on either side, the court should consider the balance of convenience
between the parties.
g) If these factors were evenly balanced, the court should consider maintaining
the status quo. On the facts of this case, the balance of convenience lay with
the appellant and the appeal was allowed.
 MOHAMED ZAINUDDIN PUTEH V YAP CHEE SENG ( 1978 ) 1 MLJ 40

1) FACTS

a) This was a notice of motion for an order that the interlocutory injunction
granted on 11 October 1976, be set aside.
b) It would appear from the notice as well as the affidavits supporting the
application that the sole ground of the application that the injunction be set
aside was that the plaintiff had not stated the facts fully and accurately to the
court and that he had not disclosed all material facts.

2) HELD

a) Held: applying the principles in American Cyanamid Co. v. Ethicon, the

motion to dissolve the injunction should be dismissed, as there was a serious
question to be tried and therefore measures should be taken to preserve
the status quo.
 PERTAMA CABARET NITE CLUB SDN BHD V ROMAN TAM ( 1981 ) 1
MLJ 149

1) FACTS

a) In this case the appellants alleged that the respondent, a well-known singer
from Hongkong, had signed a contract agreeing to appear and sing at the
appellant's night club for a number of days.
b) It was a term of the agreement that in the event of breach, the respondent
would not be entitled to perform in Kuala Lumpur during the period fixed in
the contract or three months thereafter.
c) It appeared that the respondent declined to honour his contract and was
singing at another night club.
d) The appellants claimed an injunction and damages and applied for an interim
injunction to restrain the defendant from appearing at any opera, theatre,
concert hall or other public or private entertainment in Kuala Lumpur until
the hearing of the summons.
e) The learned trial judge refused the application and the appellant appealed to
the Federal Court.

2) HELD

a) Held: in this case the respondent was not a resident of this country and it was
unrealistic to suppose that the appellants would be sufficiently compensated
by money damages alone.
b) In the circumstances the interim injunction applied for should be granted.
 LUMLEY V WAGNER ( 1852 )

1) FACTS

a) Mlle Johanna Wagner was engaged by Benjamin Lumley to sing exclusively

at Her Majesty’s Theatre on Haymarket from 1 April 1852 for 3 months, two
nights a week. Frederick Gye, who ran Covent Garden Theatre, offered her
more money to break her contract with Mr Lumley and sing for him.
b) Sir James Parker granted an injunction to restrain Mlle Wagner.
c) She appealed.

2) HELD

a) Lord St Leonards LC, in the Court of Chancery, held the injunction did not
constitute indirect specific performance of Wagner’s obligation to sing. So an
order could be granted that prohibited Mlle Wagner from performing further
other than at Her Majesty's Theatre.
b) “ Wherever this Court has not proper jurisdiction to enforce specific
performance, it operates to bind men's consciences, as far as they can be
bound, to a true and literal performance of their agreements; and it will not
suffer them to depart from their contracts at their pleasure, leaving the party
with whom they have contracted to the mere chance of any damages which a
jury may give. The exercise of this jurisdiction has, I believe, had a
wholesome tendency towards the maintenance of that good faith which exists
in this country to a much greater degree perhaps than in any other; and
although the jurisdiction is not to be extended, yet a Judge would desert his
duty who did not act up to what his predecessors have handed down as the
rule for his guidance in the administration of such an equity.
c) It was objected that the operation of the injunction in the present case was
mischievous, excluding the Defendant J. Wagner from performing at any
other theatre while this Court had no power to compel her to perform at Her
Majesty's Theatre. It is true that I have not the means of compelling her to
sing, but she has no cause of complaint if I compel her to abstain from the
commission of an act which she has bound herself not to do, and thus
possibly cause her to fulfil her engagement. The jurisdiction which I now
exercise is wholly within the power of the Court, and being of opinion that it
is proper case for interfering, I shall leave nothing unsatisfied by the
judgment I pronounce.
d) The effect, too, of the injunction in restraining J. Wagner from singing
elsewhere may, in the event of an action being brought against her by the
Plaintiff, prevent any such amount of vindictive damages being given against
her as a jury might probably be inclined to give if she had carried her talents
and exercised them at the rival theatre: the injunction may also, as I have said,
tend to the fulfilment of her engagement; though, in continuing the injunction,
I disclaim doing indirectly what I cannot do directly.
 BROOME ( SELANGOR ) RUBBER PLANTATIONS V R.H WHITLEY
( 1919 )

1) FACTS

a) An injunction was granted restraining an employee from entering into

employment as a manager or assistant of any plantation in the States of
Selangor and Negeri Sembilan other than the estate of his employers until the
expiry of his contract of service. This case may be contrasted with the case of
Wrigglesworth v. Wilson Anthony which was discussed above under the
subtopic on Restraint of Trade and Legal Proceedings.
b) An injunction is an equitable remedy. Thus, it can be varied or dissolved if
the court discovers later that the application for injunction was made on
suppressed facts or that the facts upon which the order was granted no longer
exist. An order for injunction is an equitable remedy which is also regulated
by Specific Relief Act 1950. Section 50 of Specific Relief Act 1950 provides
that it is a preventive relief granted at the discretion of the courts. In respect
of contracts, an injunction may be sought to prevent a party from committing
a breach of contract. For example, the court may order that a seller be
restrained from selling land to anyone else when the seller has contracted to
sell that land to the plaintiff. A court may award damages to an injured party
either in addition to, or in substitution for, an order of injunction.
c) Quantum meruit determines the amount to be paid for services, for example
is where the parties to a contract have failed to agree on a price or where a
party has carried out work in the reasonable expectation of a contract being
formed but an agreement is never reached on the essential terms of that
contract. If a person sues for payment for services in such circumstances, the
court will calculate the amount due based on time and usual rate of pay or the
customary charge, based on quantum meruit by implying a contract existed.