Specific Performance

LLB 20503 : SP 11/01/2022
LEARNING OUTCOME
• By the end of the topic the students are able to :
• To identify the general rules governing specific performance
SPECIFIC PERFORMANCE (SP)
LLB 20503 LAW & EQUITY • To list out the relevant case laws
Sem. 1 2021/2022 • To apply the rules in solving problematic questions
MURSHAMSHUL K MUSA
LLB 20503 MKM (c) FUHA, UNISZA. 2
OUTLINE OF TOPIC INTRODUCTION

• Definition of specific performance (SP) • Compared to Common Law remedies, equitable remedies are:
• * More flexible and with more scope.
• General characteristics of SP
• * Discretionary in nature compared to common law remedy of damages
• When can grant SP which is a matter of right.
• When cannot grant SP • * Equity acts in personam and attaches the remedy to the person.
Contempt of court is the result if the orders are not followed.
• Defenses to SP • * Equitable remedies are available in the equitable jurisdiction, and also in
the auxiliary jurisdiction, where Common Law remedies are inadequate.
• Elements involved in a claim for SP
• *Granted only where CL remedies are inadequate or unavailable.
• * Common law remedies are not available for breaches of equitable rights.
LLB 20503 MKM (c) FUHA, UNISZA. 3 LLB 20503 MKM (c) FUHA, UNISZA. 4
LLB 20503 : SP 11/01/2022
INTRODUCTION APPLICABLE LAW

• Specific Relief (SP) – a type of equitable remedy, which goes beyond CL • In Malaysia, specific performance and injunction are forms of remedies
termed as specific relief.
remedy of damages.
• Sec. 4 (b) – reflects the nature of SP i.e. involving a positive act to be done by
• Granted by way of discretion of court to do equity. the Def.
• Includes – granting of injunction to order/stop a party from doing an act; Specific Relief is given-
ordering a party who breached his contractual obligations to specifically • (b) by ordering a party to do the very act which is under an obligation to do
perform part of his contract; making order to rescind or rectify a contract. (Specific Performance).
• (c) By preventing a party from doing that which he is under an obligation not
• Powers of court to do so is under Specific Relief Act 1950 (SRA 1950) to do. (Injunction)
Chapter II, sections 11 to 29 – on SP of contracts. (SRA) • SP : Sec 11-29 of SRA to be read with other relevant laws such as Civil law Act
• Local cases. 1956, Contracts Act 1950, National Land Code 1965, Rules of Court 2012,
Companies Act 2016, Arbitration Act 2005, Housing Development Act 1966
• English law & cases. and other relevant acts.
DEFINITION & NATURE DEFINITION & NATURE

• Specific Performance : An order of the court directing a party to • Originally - was available only in the courts of equity before the Judicature
perform obligations under a contract; the terms & every obligations Acts 1873 – 75. It is now available in all civil courts.
he/she undertook to discharge on entering the contract • The remedy is supplementary to the common law remedies and is in all
• It is an equitable remedy; the principal means by which contractual cases issued at the discretion of the court.
obligations are enforced in equity. • The order essentially instructs that the parties to a contract carry out, or
• SP (and injunction) are designed to force a D to perform his or her perform the terms of the agreement, hence its name.
contractual obligation, Whereas the common law remedy of damages • The purpose of an order of SP to put the parties in the position, to perform
is designed to provide monetary compensation to a P/Claimant for their obligation under the contract as what would have done by them.
losses resulting from a breach of contract by the D. • There must be in existence a binding contract b4 SP can be granted.
• The agreement maybe in writing or not. Contract can be formal/informal.
LLB 20503 : SP 11/01/2022
NATURE OF SP REQUIREMENTS BEFORE COMMENCING SP
• Generally - granted pursuant to breach OR a threatened breach of a • Requirements:

contract/ agreement; formal/informal. • * The existence of a valid and binding contract (either formal/informal).
• For the commencement of a SP action, requires - some threat of • * Valuable consideration must be given.
refusal, express or at least implied, or some actual refusal, on the part • * Breach or anticipated breach.
of a contracting party to perform the contract in whole or part. • * Common Law damages must be inadequate.
• Effect of it – the parties are required/directed by the Court to adhere • The last requirement relates to the quality of the damages, not the
to whatever terms/conditions that has been agreed earlier between quantity.
them. • Damages are always inadequate where dealing with land/realty. Other
goods will be dependent on the item and SP only ordered if the goods are
• SP is only available where necessary. For example where the item is unique, priceless, rare, difficult to obtain.
unavailable elsewhere.
NATURE OF SP UNDER SRA 1950

• Section 21(1) Specific Relief Act :
• “The jurisdiction to decree specific performance is discretionary
• The court is not bound to grant any such relief merely because it is
lawful to do so; GENERAL CHARACTERISTICS OF
• But the discretion of the court is not arbitrary but sound and
reasonable, guided by judicial principles and capable of correction by
Court of Appeal.”
SP
• Sec 11 (1) of SRA 1950:
• Except as otherwise provided in this Chapter, the specific performance
of any contract may, in the discretion of the court, be enforced
LLB 20503 : SP 11/01/2022
GENERAL CHARACTERISTICS OF SP
• Based on the nature of an equitable remedy, the characteristics of SP
are:
• IT IS A DISCRETIONARY REMEDY
• IT IS A REMEDY “IN PERSONAM”
• ONLY POSITIVE/ ENFORCEABLE CONTRACTS ARE SPECIFICALLY
ENFORCED. Discretionary Remedy
• AWARDED ONLY IF DAMAGES IS NOT AN ADEQUATE REMEDY.
• DAMAGES MAY BE AWARDED IN SUBSTITUTION FOR, OR IN ADDITION
TO SPECIFIC PERFORMANCE.
GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is

discretionary discretionary
• Granted at court’s discretion and not as a matter of right – Section • Effect : SP may be decreed by the court at its sole discretion & not as
11(1) a matter of right unless statutorily provided so. See sec 21(1)
• Exception: statutory provision deprives the court from this discretion. • Sec.21(1) – statutory affirmation that SP is a discretion; even if
• Court exercise their discretion - mainly in the cases involving delay, sometimes damages might/not be adequate compensation.
hardship, mistake or conduct of the plaintiff. • GANAM v SOMOO [1984] 2 MLJ 290, Seah FJ: “..it is clear that a court
• The basis of the discretion: s21(1): may exercise a discretion in granting/ withholding a decree of SP; & in
the exercise of that discretion, the circumstances of the case, the
1. Sound & reasonable conduct of the parties & their respective interests under the contract
2. Guided by judicial principles are to be remembered..”
3. Capable of correction by COA
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discretionary discretionary
• Section 21(2): Court’s discretion not to decree SP: • Sec. 21(2): The following are cases in which the court may properly exercise
a discretion not to decree specific performance:
 P receives unfair advantage over D
• (a) where the circumstances under which the contract is made are such as
The performance involves hardship on D, non performance involves to give the plaintiff an unfair advantage over the defendant, though there
no hardship on P. may be no fraud or misrepresentation on the plaintiff’s part; and
• Principles where court normally grant SP: Sec.21(3): • (b) Where the performance of a contract would involve some hardship on
the defendant which he did not foresee, whereas its non-performance
P has done substantial acts; or would involve no such hardship on the plaintiff.
P has suffered losses • Sec. 21(3) : A case in which the court may properly exercise a discretion to
decree specific performance is where the plaintiff has done substantial acts
• in consequence of a contract capable of specific performance. or suffered losses in consequence of a contract capable of specific
performance

discretionary discretionary remedy -cases
• Sec. 21(2)(a) & (b) are two instances where Court should would use • WONG KUP SING V JERAM RUBBER ESTATE LTD [1969]: The purchaser
this discretionary power NOT to grant SP - where it involves unfair entered into a contract with the vendor to buy a rubber land. The sale is to
advantage & unforeseen hardship.(more discussions on the two be completed within a specified time. A number of extensions were
under DEFENCES) requested by the purchaser in which were initially agreed by the vendor.
Later, the vendor told the purchaser to complete the purchase within 1 day.
• Sec.21(3) – where Court can properly exercise discretion in situation
where Plf has done substantial acts/ suffer losses in consequence of a • Held: since the time of completion was allowed to pass several times, time
was no longer an essence of contract. Thus:
contract capable of SP. Illustration: A sells land to a railway company,
who contract to execute certain works for A’s convenience. The • Vendor must give reasonable notice.
company take the land & use it for their railway. SP of the contract to • 1 day notice is not reasonable.
execute the works should be decreed in favour of A. • SP was granted.
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GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is discretionary

discretionary remedy -cases remedy -cases
• YEO LONG SENG V LUCKY PARK (PTE) LTD [1971]: Purchaser paid a • SPILLER V BOLTON (1947) 149 EG 450, SP was refused of a contract to
booking fee of $500 to buy a land. Vendor cancelled the booking and purchase land for building, because the auctioneer had not made it
returned the fee. Purchaser was then given the option to purchase clear that the land was being considered for local authority controls
subject to a formal contract. It was found out that Vendor cancelled which would have made building impossible. (unfair advantage – info
the booking because the land price had shot up. Held: known to auctioneer)
• Vendor should not be allowed to act in cavalier fashion. • In VENKATCHALAM RM CHETTIAR v NKR ARUNASALAM CHETTIAR
• However, damages would provide an adequate remedy. [1953] MLJ 234 – no hardship even if bargain is worse than originally
anticipated by the Def. Also hardship that was due to Def, though
• SP not granted. unexpected was not that great.
GENERAL CHARACTERISTICS: SP is discretionary remedy
• HAYWOOD v COPE (1858) 25 Beav 140 – SP even though mine was

unprofitable.
• HJ OSMAN v SAIYED NOOR [1952] MLJ 37 – even though the bargain
has not been that good to the Def, SP still granted to Plf.
• NICHOLAS v INGRAM [1958] NZLR 972 – financial inability to
complete which arisen after a change in circumstances, not a defence In Personam
– SP granted.
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GENERAL CHARACTERISTICS: SP a remedy in personam GENERAL CHARACTERISTICS: SP a remedy in personam
• As equitable remedies SP is in personam in nature. Meaning - the • Court may order SP of a contract for sale of land which may be located in a
remedy attaches to the person of the D rather than to his or her foreign country, but whose owner is within the court’s jurisdiction
property (in rem). • The court’s consideration is the personal equitable obligation of the D
• Effect – as long as D is within the jurisdiction of the court, SP can be arising out of the contract, and not the locus of the property.
ordered even though the property [the subject of the contract] may • Imperative that the D, against whom SP is being decreed, be within the
be outside the court’s jurisdiction. jurisdiction of the court and be capable of personally carrying out the
• The sanction for non-compliance with an order for SP focuses on the contractual obligations.
person and not on the contract or property the subject of the • PENN V LORD BALTIMORE (1558-1774), specific performance of an
contract. agreement was decree, even though the subject matter was not in England
but in North America. Reason – parties were before the Court and can be
• SEKEMAS S/B v LIAN SENG & CO 1989 2 MLJ = Each case must be compelled to perform the said contract.
decided on its own particular facts
GENERAL CHARACTERISTICS: SP a remedy in

personam
• RICHARD WEST & PARTNERS (INVERNESS) LTD V DICK [1969] 2 Ch
424, an English court ordered specific performance of a contract for
the sale of land where the property was located beyond the court’s
jurisdiction in Scotland. Thus, a defendant who fails to comply with
the order will be guilty of contempt of court with the ultimate
consequence of being imprisoned for such contempt.
Positive/enforceable contracts
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GENERAL CHARACTERISTICS: Only GENERAL CHARACTERISTICS: Only positive/enforceable

positive/enforceable contracts can be SP enforced contracts can be SP enforced
• To enforce SP – must prove a legally subsisting contract. • SP not available to enforce a mere promise . Must have provided
• Positive Contract: A contract where the terms are definite and clear – valuable consideration & proof of the conferral must be established.
undertaking to do certain specific things and if it is not done, the • Mere fact that an agreement has been made under seal does not
party does not discharge himself from the contract. meant that valuable consideration has been conferred.
• The remedy of specific performance is confined to the enforcement
of positive contractual obligations. • In HAFSHAM v ZENAB [1958] 3 All ER 719 , the Privy Council
emphasized that the basis of specific performance is a valid contract,
• These obligations must be binding on the defendant. in which one party must have given adequate consideration to the
• Must be of positive nature, wherein one is required to do something. other party.
Negative contracts, on the other hand, should be enforced through a
prohibitory injunction and not specific performance.
GENERAL CHARACTERISTICS: Awarded only if

damages is not an adequate remedy
• Usual remedy for the breach of a contract – damages.
• General rule: equity does not intervene if damages, the usual remedy for
the breach of contract, is adequate.
Damages is an inadequate • Exception: where the court thinks that damages are inadequate to put the
plaintiff in the same position as if the contract has been performed, SP may
remedy be ordered.
• Maxim – equity follows the law.
• Court will make a general inquiry as to the availability of an award of
damages and the suitability of such an award. When assessing the
suitability of damages, factors considered are : the needs of the claimant
and the financial viability of the D will be taken into account
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GENERAL CHARACTERISTICS: Awarded only if damages GENERAL CHARACTERISTICS: Awarded only if

is not an adequate remedy damages is not an adequate remedy
• Gen. rule - Contracts for the sale of chattels, NO SP. Reason - generic goods • Sec.11(2): The presumption by the court: Unless and until the
may in general be purchased anywhere and so damages will be adequate. contrary is proved, the court shall presume that the breach of a
• SP for : Land, goods which are rare & hard to find/unavailable in the contract to transfer immovable property cannot be adequately
market. relieved by compensation in money, and that the breach of a contract
• Cases which SP is enforceable: see 11(1)(b)(c): (1) Except as otherwise to transfer movable property can be thus relieved.
provided in this Chapter, the specific performance of any contract may, in • Contract to transfer immovable property = damages not adequate
the discretion of the court, be enforced— • Contract to transfer movable property = damages adequate (unless
• (b) when there exists no standard for ascertaining the actual damage and until contrary is proven).
caused by the non-performance of the act agreed to be done;
• The effect of this presumption would be to put the burden of
• (c) when the act agreed to be done is such that pecuniary compensation for rebutting this presumption on the shoulders of the defendant. If he
its non-performance would not afford adequate relief ; or successfully does so, then the court shall refuse SP
GENERAL CHARACTERISTICS: Awarded only if damages GENERAL CHARACTERISTICS: Awarded only if damages
is not an adequate remedy is not an adequate remedy
• The adequacy or inadequacy of common law damages is determined • Adequacy of damages also depend upon the particular type of
by reference to the date of the order for SP and not the date of the subject matter involved.
contract. • Contracts for personalty/chattels – will generally be limited to a
• Circumstances in which damages are inadequate or inappropriate are remedy in damages, particularly if the chattel involved is of an
numerous and varied in content. ordinary, domestic or commercial nature and easily replaced.
• In each situation, the proper question to ask is whether claimant • Sale of chattels will only be enforceable SP once it is clearly shown
would be just as satisfied with an award of damages as he would with that damages are inadequate. E.g. unusual beauty/ rarity/ antique. In
a decree of SP. It is important to distinguish between those situations most situations, the court will not decree SP with regard to personal
where damages are not available and those where damages are chattels because the remedy at law will be sufficient
unsuitable.
LLB 20503 : SP 11/01/2022
• Shares & stocks - contracts for the sale of shares and stocks may be DOUGAN V LEY - A contract for the sale of a taxi which was worthless
enforced if the shares are not readily available in the market. without the licence. The court found that as the licence was hard to
However, if it is possible for anyone to purchase the shares, a plaintiff obtain, damages would not compensate, and ordered SP.
will generally be left to a remedy in damages. Dixon J: In the present case I think that we should have no difficulty in
• It is not necessary to establish that the chattels are absolutely concluding that, because of the limited number of vehicles registered
unavailable in the market; it will be sufficient if it can be shown that and licensed as taxi-cabs, because of the extent to which the price
the plaintiff would either have some difficulty in obtaining them or represents the value of the licence, and because of the essentiality to
the price may be greater. the purchasers' calling of the chattel and the licence annexed thereto,
we should treat the contract as within the scope of the remedy of
specific performance.
• ADDERLEY v DIXON (1924), Sir John Leach stated that:“… a court of equity • In ANZ EXECUTORS AND TRUSTEES LTD V HUMES LTD (1990), the
will not, generally, decree performance of a contract for the sale of stock Supreme Court of Victoria held - damages would not be an adequate
and goods, not because of their personal nature, but because damages at remedy for breach of a contract to sell notes which were convertible
law, calculated upon the market price of the stock or goods, are as into shares. The notes had a special value because the purchaser
complete a remedy to the purchaser as the delivery of the stock or goods wanted to acquire as many shares as possible in the corporation
contracted for; in as much as, with the damages, he may purchase the during this year to gain tax advantages for its take-over. ANZ’s case -
same quantity of the like stock or goods.”
Extremely difficult to measure this value to calculate damages.
• DUNCUFT v ALBRECHT – SP of an agreement for sale of railway shares
which were limited in number and not always in the open market. If the • Held that damages were inadequate because of the complexity
shares in question can be easily obtained from the open market, so that associated with the valuation of the notes, and P would not be placed
loss can easily be quantified in money, the court will not grant SP in as good a position by an award of damages .
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• GAN REALTY SDN. BHD. v NICHOLAS 1969 2 MLJ 110 - D negotiated • Contract of Realty/Land – SP will generally be awarded whatever the
with the P the sale of their respective shares in the Oriental Bank of nature of the estate or interest, Reason - each piece of land is
Malaya Bhd. Not available in open market – SP granted. considered to be unique; an award of damages is usually
• H.A. SECURITIES SDN. BHD. v NG KONG YEAM 1993 2 AMR 43 -1988, inappropriate because monetary relief cannot replace the actual form
Roxy Co. had proposed sales of shares. P and D entered into two of the land and is not an equivalent substitute.
MOU whereby P deposited 2 ½ million fully paid shares of Roxy Co. • It may also be the case that damages cannot adequately compensate
with D in return of RM5 Million. Option to repurchase at same a purchaser for the time consuming process of seeking out and
amount to P. Lapse one year – P claim SP. Held – no SP, shares freely purchasing another comparable property.
available in market, delay, damages adequate remedy. • Damages at common law have almost invariably been seen as
inadequate in contracts involving land.
• LOAN INVESTMENT CORP OF AUSTRALASIA v BONNER [1970] NZLR • If a plaintiff can be adequately compensated by an award of damages at
724 at 745 -Sir Garfield Barwick said: No two pieces of land can be common law the court has no jurisdiction to order specific performance.
identically situated on the surface of the earth. When a buyer • Generally, contracts to pay or lend money are ones where a plaintiff will be
purchases a parcel, no other piece of land, or the market value of the adequately compensated by an award of damages at common law.
chosen land can be considered, in my opinion, a just substitute for However, in some circumstances common law damages will not do justice
the failure to convey the selected land. to the plaintiff and the court will have jurisdiction to award equitable relief.
• Section 11 (1) (c) of the Specific Relief Act, 1950 provides: “Specific • Contracts in which the promisor’s obligation to be enforced is the conferral
performance of any contract may, in the discretion of the court, be of a benefit upon a third party to the contract - example of such a contract
enforced – where the act agreed to be done is such that pecuniary is where the promisor’s obligation is to pay a sum of money to a third
compensation for its non-performance would not afford adequate party. Damages may not be adequate where the measure would be
nominal but measurable loss has occurred. E.g BESWICK v BESWICK
relief.”
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GENERAL CHARACTERISTICS: Awarded only if damages

is not an adequate remedy
• BESWICK v BESWICK - Peter Beswick contracted with his nephew John Beswick,
that Peter was to transfer his business to John and in return John agreed to
employ Peter as a consultant for the rest of his life and after Peter’s death to pay
Ruth Beswick (Peter’s wife) an annuity for the rest of her life.
Damages may be awarded in
• After Peter’s death John refused to make the payments to Ruth. Ruth, in her
capacity as the administratrix of Peter’s estate, brought an action seeking specific
substitution for, or in addition to
performance of the obligation to pay the annuity.
• The House of Lords ruled in Ruth’s favour holding that common law damages
were an inadequate remedy. Lord Upjohn, observed that in such a case,
specific performance
especially where the plaintiff has performed his or her contractual obligations
and all that remained to be done was for the defendant to honour his or her
obligation and pay money to the third party, equity would enforce the obligation
as common law damages would be inadequate to meet the justice of the case.
GENERAL CHARACTERISTICS: Damages may be awarded GENERAL CHARACTERISTICS: Damages may be awarded
in substitution for, or in addition to specific performance in substitution for, or in addition to specific performance
• A claimant who has been awarded SP by the court can later rescind it • Sec. 19 of SRA 1950 states that liquidation of damages is not a bar to
& claim for damages with the leave of the court. This usually happens specific performance:
in situations where the SP could not be carried out for whatever • - A contract, otherwise proper to be specifically enforced, may be so
reasons. enforced, though a sum be named in it as the amount to be paid in
• Main requirement – establish that court has jurisdiction to make SP & case of its breach, and the party in default is willing to pay the same.
damages. • IOW even if stated in agreement that certain $ will be paid in case of
• Sec.18(1) :any person suing for the specific performance of a contract breach, does not preclude SP. Only limit the amount of damages to
may also ask for compensation for its breach, either in addition to, or that stated amount.
in substitution for, its performance.
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GENERAL CHARACTERISTICS: Damages may be awarded

in substitution for, or in addition to specific performance
• Furthermore, in s. 18 (3):Specific Relief Act gives power to
the court to award compensation in addition to SP if SP
alone NOT SUFFICIENT to satisfy the justice in the case.
• LEE HOY & ANOR V CHEN CHI [1971] - “the grant of Types of Contract that Can be
compensation under this section is permissible only if SP is
pleaded but not otherwise”.
granted SP
Contracts/situation which SP may be awarded Situations /types of contact where Specific Performance
- S.11 : 4 circumstances may be granted ( Sec 11 SRA 1950)
1. act agreed to be done is in the • Note: * Cross refer /read together with Sec 22 - Person who can pray
performance, wholly or partly of a trust for SP, sec 20, sec 21(2a & b)
• Section 11 (1)(a) -When the act agreed to be done is in the
performance wholly or partly of a trust.
3. when pecuniary compensation
for its non-performance would not • Illustration of Section 11(1), A holds a certain stock in trust for B. A
2. if there exists no standard to determine
actual damage caused by the non- be adequate relief. wrongfully disposes of the stock. The law creates an obligation on A
performance of the act agreed to be done to restore the same quantity of stock to B, and B may enforce specific
performance of this obligation.
4. when it is probable that pecuniary
compensation cannot be obtained for the
non-performance of the act agreed to be
done.
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Situations /types of contact where Specific Performance Situations /types of contact where Specific Performance
may be granted ( Sec 11 SRA 1950) may be granted (Sec 11 SRA 1950)
• Section 11 (1)(b) -When there exist no standard for ascertaining the actual • Sec 11(1)(b) – whether damages would be an adequate remedy
damage caused by the non-performance of the act agreed to be done (subject would depends very much on the type of contracts involved & subject
matter). Illustration of Section 11(1), A agrees to buy and B agrees to sell a
matter.
picture by a dead painter and two rare China vases. A may compel B specifically
to perform this contract, for there is no standard for ascertaining the actual • Subject matter – cross refer with sec 11(2) – difference between
damage which would cause by its non-performances.[*see earlier discussions on land, goods, shares.
damages not an adequate remedy ]
• Sec 11(1)(c) – refers to situations wherein the claimant would not be
• Sec 11(1)(c) When the act to be performed is such that pecuniary compensation
for its non- performance would not afford adequate relief. Illustration (a) Section
awarded adequate relief by way of monetary compensation. Again
11(1), A contract to B to sell him a house for RM 1,000. Then, he refused to this would depends very much on the types of contract & subject
convey the said house. B is entitled to a decree of SP, directing A to convey the matter involved. See illustrations provided.
said house to him since a monetary compensation would not satisfies B. • Equity will not grant SP is monetary damages is adequate (see earlier
slides)
Situations where Specific Performance may be granted

(sec 11 SRA 1950) CONTRACTS UNDER S 11(2) SRA
• Section 11 (1) (d) When it is probable that pecuniary compensation • Section 11(2), when there is a breach of a contract to transfer
cannot be got for the non performance of the act agreed to be done. immovable property cannot be adequately relieved by compensation
Illustration ; A made a contract with B for delivery of certain goods. of money.
Unfortunately A becomes insolvent and C is appointed as his assignee. B • Therefore, SP can usually be use to enforce land transaction.
may compel C by SP to surrender the goods to him because it is
impossible for B to get any compensation for the breach, since A is • Different presumptions applicable to moveable & immoveable
already insolvent. property (see earlier slides)
• Sec 11 (1) are circumstances of contract where it has to be prove to • Immoveable property (includes rights, interests, benefits related to
court prima facie as present in a suit for SP. ownership of realty) – law presumes breach of Contract cannot be
• Court still has right to refuse SP even though contracts are those adequately relived by monetary compensation.
specified under sec 11(1) in situations under sec 20, sec 21(2)(a),(b) of • However, presumption can be rebutted.
SRA.
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Situations where Specific Performance may be granted

CONTRACTS UNDER S 11(2) SRA (sec 11 SRA 1950)
• Moveable property – other than real estate. Presumption of law – • LOH KOON MOY v ZAIBUN BINTI SYED AHMAD 1978 2 MLJ 29 - This case
contracts which can be adequately relieved with monetary relates to section 11, sub-section (2), which allows a presumption of SP
where the contract relates to sale of land. R contracted to sell to App
compensation. Again, presumption is rebuttable. certain pieces of land adjacent to some lands which App was carrying out
• Cases: GAN REALTY v NICHOLAS 1969, HA SECURITIES V NG KONG for mining operation. Later R refused to continue with the contract. App
YEAM 1993, ZAIBUN SA V LOH KOON MOY 1982 sued R .
• The particular lands were important for use in association with App’s tin
mining operation, and compensation by way of money i.e. damages would
not afford adequate relief. As the respondent could not rebut this
presumption, the Federal Could held that “there existed therefore no
grounds for the exercise by the learned (trial) judge of his discretion (to
award damages instead of specific performance).
Situations where Specific Performance may be granted Situations/ types of contract where Specific
(sec 11 SRA 1950) Performance may be granted ( Sec 11 (2) SRA 1950)
• Thus, court granted SP. • YEO LONG SENG V LUCKY PARK (PTE) LTD 1971 1 MLJ 20 – P by a written
• The Privy Council considered S. 11 (1) (c ) and S.11 (2) and affirming the decision agreement, agreed to purchase a piece of land from D, paid a sum of $500
of the Federal Court by ordering SP of a contract for the sale of land. It was also to as booking fee. Next day, D cancelled the booking without stating any
pointed that although there was an alternative claim for damages but the Judges reason and sent to a cheque for $500 to P. P claimed for SP or in the
viewed that it was irrelevant to the exercised of their discretion in that case.
alternative damages. Damages awarded.
• HOH AH KIM v PAYA TRUBONG ESTATE SDN. BHD. 1987 1 MLJ 143 - Held that
section 11(2) may not apply where “it may be difficult due to the changes in the • In ARAB MALAYSIAN CORP BUILDERS SDN BHD & ANOR v ASM
area of the said land for the parties to agree on the particular location to be DEVELOPMENT SDN BHD [1998] 6 MLJ 136 Kamalanathan Ratnam JC stated
demarcated for sub-division for alienation to the plaintiff pursuant to (an) that the relief provided under this section “is, the performance of a specific
agreement. The plaintiffs have pleaded… for damages for breach of contract in act or the delivery of particular articles and not relating to the payment of
lieu of or in addition to specific performance. Therefore, (the court may) in the
exercise of discretion which is statutorily provided in section 18, Specific Relief money.”
act, 1950 inclined… not to grant specific performance but to award …. • REFER :SEKEMAS S/B v LIAN SENG CO S/B [1989] 2 MLJ 155,
compensation.”
• MOHAMED v HO WAI 1961 27 MLJ 7
LLB 20503 : SP 11/01/2022
Situations where Specific Performance CANNOT be

granted (sec 20 SRA 1950)
• Contracts which cannot be specifically enforced – S.20 : EIGHT CIRCUMSTANCES
• * Cross refer/read together with Sec 23 - Personal bars to Relief and sec 24
contracts by a person who has no title/voluntary settlor.
• The situations provided are not exhaustive, can refer to CL & equity. So even if
not stated under Sec.20 but stated as such in CL & equity – same principle applies
CONTRACTS NOT ENTITLE TO SP

• Section 20 (1) : circumstances when a Specific Performance cannot be granted:
• (a) Where money compensation is an adequate relief;
• (b) A contracts which is so dependent on the personal qualifications or volition of
the parties;
• (c )A contract the terms of which the contract cannot find with reasonable
certainty.
Situations where Specific Performance CANNOT be Situations where Specific Performance CANNOT be
granted (sec 20 SRA 1950) granted (sec 20 (1)(a) SRA 1950)
• (d) A contract which is in its nature revocable. • Breaches of Contract for which damages would be an adequate
• (e) A contract made by trustees either in excess of their powers or in remedy. See earlier slides.
breach of their trust • Cases: BOO KOK NGEAK v LIM KIAN HOE [1998] 6 MLJ 727
• f)A contract made by or behalf of a corporation created for special • SEKEMAS SDN BHD v LIAN SENG CO SDN BHD [1989] 2 MLJ 155
purposes.
• (g) A contract the performances of which involves the performance of • HO AH KIM v PAYA TRUBONG ESTATE SDN BHD [1985]
a continuous duty exceeding over a longer period than three years
from its date
• (h)A contract of which material part of the subject matter supposed
by both parties to exist, has, before it has been made, ceased to exist.
LLB 20503 : SP 11/01/2022
granted (sec 20 (1)(b) SRA 1950) granted (sec 20 (1)(b) SRA 1950)
• Court will not grant SP to enforce contract wherein the material terms • 1.Constant court supervision - Contracts in which the parties’
of the contract cannot be enforce. obligations are imprecisely defined will generally not be specifically
• E.g. where court would not be able to supervise the works required enforced.
e.g. supervision of a contractor for building a house. • It is the possibility of the court having to give an indefinite series of
• Includes contract of employment or personal services – reason ,such rulings to ensure the execution of the order which has been regarded
contract would inconvenience or cause hardship to defendants. as undesirable.
• Might encourage multiple breaches of contract. • If the obligations are of an ongoing nature, SP would not generally be
ordered because of the threat of repeated litigation arising from
disputes as to whether at any particular time the defendant was
complying with the order.
granted (sec 20 (1)(b) SRA 1950) granted (sec 20 SRA 1950)
• 1. Constant/continuous Supervision/too detail – another reason the • MOHAMMAD BIN BAEE v PEMBANGUNAN FARLIM SDN BHD [1988] 3 MLJ
211 the Court held that where the facts of the case showed that the Court
court will not order SP because it is inconvenient for the court will be unable to superintend the works required, for e.g. to complete the
officers, and will protract litigation. Example if the parties are going to construction of a specific house the Court will not order SP.
continually argue about complex contractual terms. The exception to • POSNER v SCOTT-LEWIS [1986] 3 AER 513, the relevant considerations
this rule is Building Contracts were said to be: Was there a sufficient definition of what was to be done in
order to comply with the order of the court? Would enforcing compliance
• JC WILLIAMSON v LUKI & MULHOLLAND - The plaintiff leased a shop involve the superintendence by the court to an unacceptable degree?
What were the respective prejudices or hardships that would be suffered
and part of a picture theatre, with the exclusive right to sell by the parties if the order was or was not made?
confectionary. Clothing, time etc... were terms of the contract. The • RE C, where Stuart-Smith LJ indicated: ”… The court will not specifically
theatre owner tried to repudiate the contract. The court refused SP enforce a contract in which one party is bound by continuous duties, the
due to all the details in the terms. due performance of which might require constant supervision by the
court...”
LLB 20503 : SP 11/01/2022
granted (sec 20(1)(b)SRA 1950) granted (sec 20 SRA 1950)
• 1. Personal volition/services contracts - Equity will not enforce a contract if to do • Reason? may involve hardship or inconvenience to particular
so would result in compelling the defendant to maintain a personal relationship defendants.
with the plaintiff.
• 2ndly, general policy considerations make it undesirable to force
• The underlying rationale for this principle lies in human nature and the
undesirability of maintaining a personal relationship against the will of one of the individuals to maintain particular personal relationships; even though
parties to the contract. the parties may have earlier agreed to do so.
• Personal Services - Examples Master/Servant, Partners in a partnership. The • 3rdly, enforcement of such contracts may result in repeated
courts will order SP to execute an agreement but not to enforce a person to contractual breaches and required continual court supervision.
perform an executed agreement.
• Contracts of personal service – court would rather grant an injunction
• Fry LJ in DE FRANCESCO v BARNUM (1890) 45 ChD 430, at 438, said: courts ‘are under Sec 55 of SRA, requiring the defendant to perform a negative
bound to be jealous, lest they should turn contracts of service into contracts of
slavery’ agreement.
granted (sec 20 (1)(b) SRA 1950) granted (sec 20 (1)(c) SRA 1950)
• LUMLEY V WAGNER is the cited leading case on this point. • Sec.20 (1)(c) Uncertain contracts cannot be enforced – of subject-matter or
the parties to a contract , cases where the court cannot find with
• This has been decided as such in the cases of reasonable certainty as to what is really required to be done by the
Defendant in a contract.
• PENANG HAN CHIANG ASSOCIATED CHINESE SCHOOL ASSOCIATION v • Q? of fact to be gathered out of documents and evidences. Misdescription
NATIONAL UNION OF TEACHERS In INDEPENDENT SCHOOLS, WEST – of serious nature of the subject matter which affects the value or utility
MALAYSIA [1988] 1 MLJ 302 of the property sold, then SP not granted to seller. Reason? purchaser
cannot be compelled to purchase something which is substantially different
• DATO ABDULLAH AHMAD v SYARIKAT PERMODALAN KEBANGSAAN from what he contracted to buy.
BHD & ORS [1990] 3 MLJ 505. • Quality of subject matter - may be difficult to be brought within
uncertainty, and damages may be an adequate remedy. In ISMAIL MOHD
• DAYANG NURFAIZAH v BINTANG SENI SDN BHD 2004 2 MLJ 39 YUNOS v FIRST REVENUE SDN BHD [2000] 5 MLJ 42 the court decided that
no SP can be granted where there is uncertainty as to the identity of the
property under a contract.
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PARTIES ENTITLE TO SP
• Sec 22 : 5 class of person who can sue for SP
• Any party to contract
• Representative in interest/ principal
• Parties in settlement of marriage
Parties in a SP suit • On amalgamation of company
• Contract entered by promoters
PARTIES NOT ENTITLE TO SP SP against Government

• Section 23, SRA 1950, no SP in favor of 4 categories of persons: • Sec 29 of Government Proceedings Act 1956 states: (1) In any civil proceedings
by or against the Government the court shall, subject to this Act, have power to
• who could not recover compensation for its breach; make all such orders as it has power to make in proceedings between subjects,
• who has become incapable of performing, or violates, any essential term of and otherwise to give such appropriate relief as the case may require: Provided
the contract that on his part remains to be performed; that--
• who has already chosen his remedy and obtained satisfaction for the • (a) where in any proceedings against the Government any such relief is sought as
alleged breach of contract; or might in proceedings between subjects be granted by way of injunction or
specific performance, the court shall not grant an injunction or make an order for
• who previously to the contract, had notice that a settlement of the subject- specific performance, but may in lieu thereof make an order declaratory of the
matter thereof (though not founded on any valuable consideration) had rights of the parties; and
been made and was then in force.” • (b) in any proceedings against the Government for the recovery of land or other
• These categories of people will be unable to ask for a decree of SP from the property the court shall not make an order for the recovery of the land or the
court basically due the occurrence of the circumstances explained by the delivery of the property, but may in lieu thereof make an order declaring that the
section itself. plaintiff is entitled as against the Government to the land or property or to the
possession thereof.
LLB 20503 : SP 11/01/2022
DEFENCES
• UNFAIR ADVANTAGE/CONDUCT – sec 21(2a)
• UNFORESEEN HARDSHIP – sec 21(2b)
• SECTION 23 – parties not entitle to SP.
• SECTION 27 – (a) consideration received is so grossly inadequate, either,
with reference to the state of things existing at date of contract, by itself or
coupled with other circumstances evidence of fraud or of undue advantage
DEFENCES TO SP taken by the plaintiff;
• Sec 27(b) assent to the contract obtained by misrepresentation (whether
willful or innocent), concealment, circumvention, or unfair practices by
action of the other party
• Sec 27(c) assent to the contract given under influence of mistake of fact,
misapprehension, or surprise
DEFENCES: s 21(2)(a)unfair advantage DEFENCE: Sec.21(2)(a) – unfair advantage

• Section 21(2)(a) of SRA • Will depend upon an assessment of all the relevant circumstances -
determined primarily by a reference to the behaviour of the plaintiff.
• Where the circumstances under which the contract is made are such • Contract secured by unfair means/conduct though not necessarily amount
as to give the Plaintiff an unfair advantage over the Defendant, to invalidation of contract, will be taken into consideration by court in
Though they may be no fraud or misrepresentation on the Plaintiff’s exercising its discretion.
part. • Inadequacy/ excess of consideration, per se, generally not a sufficient
unfairness for a court to refuse SP.
• Illustration: A contract to sell B certain land. To protect the land from • Unfairness due to various factors e.g.: whether the P in a position of
floods, it is necessary for its owner to maintain expensive advantage; had greater information available to him; was aware that the
embankment. B does not know of that circumstances and A conceals defendant lacked requisite knowledge about the consequences of the
contract; P took advantage of any special disability held by the defendant.
it from B. A cannot enforce the contract by SP. • *Note: see discussion on vitiating factors as well
LLB 20503 : SP 11/01/2022
DEFENCES: s 21(2)(b) hardship DEFENCE: Sec.21(2)(b) unforeseen hardship

• Section 21(2)(b) of SRA: Where the performance of a contract would • Mere financial hardship which is a direct result of the conduct of the
involve some hardship on the defendant which he did not foresee, whereas defendant & bad bargain is not sufficient hardship. Cases: HJ OSMAN v
its nor performance would involve no such hardship on the Plaintiff. SAIYED NOOR, NICHOLAS v INGRAM, HAYWOOD V COPE
• A question of fact in each case. • Acceptable hardship – where Def proves that such hardship would amount
• Hardship are determined by reference to the consequences of the SP upon to an injustice to him & unreasonable to be so. Court would have to
the D or 3rd party. balance interest of the parties in deciding so.
• Mere changes in circumstances since the contract was entered into making • Merely entering into a foolish transaction is not sufficient.
it less attractive to the defendant – not sufficient for hardship.
• If hardship is alleged, the D must establish that the detriment suffered by • The question is : At the time of the Contract did the bargain operate
him will exceed that of the P if the SP is granted. Need to prove that SP oppressively?
would be oppressive to Def. • In answering this question the courts may also look at the events after the
• Not just any hardship, must be excessive hardship to the D. The contract contract.
must be harsh and oppressive as to be unjust to order SP.
DEFENCE: HARDSHIP HARDSHIP

• An order for SP will be refused if it would result in unconscionable • PATEL v ALI - There was a delay of four years between entry into a
hardship upon the defendant. contract and coming to the court. The purchaser wished to enforce a
• In DOWSETT V REID (1912) 15 CLR 695, the court must balance the contract against a plaintiff who's husband was bankrupt, had a leg
potential hardship to the defendant that would result if SP were amputated and was in jail. Due to the circumstances, it was not the
granted with the potential hardship to the plaintiff if SP were refused. same bargain that the plaintiff entered into. SP refused.
If the two cancel each other out, SP will be ordered despite the
hardship to the defendant. R owned land which was leased to D with
option to purchase. The lease imposed very onerous conditions on R
who has to make very expensive improvements, pay all outgoings and
the lessee was not obliged to pay rent. The court would not order SP
in this circumstance against R.
LLB 20503 : SP 11/01/2022
HARDSHIP Defence: delay

• FALCKE v GRAY (1859) 62 ER 250 - Specific performance of an option • * Laches (see also notes on maxim: delay defeats equity for detail
discussion on laches)
to purchase rare China jars at a price 80 per cent below market value
• Unreasonable delay which causes prejudice to be suffered by the party
was declined on grounds of hardship to the defendant. against whom SP is being sought. Mere delay is not enough, it must
• Because the contract was for a rare and special chattel, the court had prejudice the defendant or third parties, including the loss of evidence.
jurisdiction to award specific performance, as common law damages • LAMSHED v LAMSHED -A dispute about the terms of a contract in 1957. As
a result the defendant stated to the plaintiff that D did not believe it was
to the plaintiff would have been an inadequate remedy. bound by the contract. Plaintiff promptly issued a writ, but did nothing else
for 5 years. Were not successful in SP due to laches. Court looked at the
• However, the hardship to the defendant led the court to refuse the maintenance of the action and the reason for the delay. An unwillingness
grant of relief in the exercise of its discretion. to take action against family was not enough. The prejudice suffered was
uncertainty as to the ability to do anything with the land.
• *Note: refer to notes on equitable maxim for meaning of laches
Defence : others Factors affecting grant of SP

• See pages 99-100 of Zuraidah Ali et all – Equity & Equitable • Lack of Mutuality : If the remedy is not available to both parties then the courts
will not order SP. Example in a contract against a minor an adult could not get SP.
remedies for detail discussions. • SP is not available to a plaintiff unless the defendant could also have obtained
relief against the plaintiff. This principle of mutuality cannot be raised by a
defendant if the reason that the defendant could not get equitable relief against
the plaintiff is to be found in the defendant’s own conduct or default.
• Other reasons for lack of mutuality are continued supervision or personal
services. The lack of mutuality is at the date coming to the court.
• PRICE v STRANGE - A lessee-lessor dispute where P claimed S promised that if P
painted the property, S would give a new lease. P completed the work and S
refused to renew. S tried to argue that it was a contract for personal service and S
could not have enforced against P. HELD: There was no lack of mutuality as at the
time of the court, the work had been completed.
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Factors affecting grant of SP Factors affecting grant of SP
• Futility - Courts will not order a futile remedy. Eg ordering specific • Equitable relief will be refused if the contract is affected by vitiating factors due to
the other party’s conduct or actions.
performance of a lease which has expired, ordering entry into a • Thus, contracts induced by the other party’s misrepresentation, mistake, duress,
partnership that can be terminated at will. MUNDY v JOLIFFE undue influence – generally not subjected to SP. To grant SP in such contract
would be unconscionable.
• Impossibility - If the party could not comply, the court will not make • However, if the defendant cannot get equitable relief because of some
such an order. E.g. a sale to a 3rd party who is bona fide and without misrepresentation, unconscionable conduct, undue influence, laches and the like
notice. on his or her part, the plaintiff will not be denied relief on lack of mutuality
grounds.
• E.g. S. 20(1)(e) Contracts by trustees in breach of trust cannot be • The classic example of a lack of mutuality is a contract with a minor. The minor
enforced – Reason? The property did not actually belongs to trustee. will be unable to receive an order for specific performance against the other
party as that person will be unable to insist upon his or her rights against the
• CHUNG PENG CHEE v CHO YEW FAI 1954 20 MLJ 100 minor. Thus, there is a lack of mutuality, which impairs the minor’s own ability to
seek the equitable remedy.
Vitiating factors CONCLUSION

• Misrepresentation or mistake - A misrepresentation as to a non-essential • SP is a discretionary remedy – meaning though an applicant might
term or a mistake may not warrant the rescission that has occurred and the
court will order specific performance. claim it but the court will have the last say whether to grant or not.
• Equally, where there has been deliberate misrepresentation or the plaintiff • In granting the court will look not only at the existing provisions
has induced the mistake, the court will not grant the plaintiff specific under SRA but also guidance from common law & equity and also the
performance. If the mistake was unilateral or the plaintiff did not induce
the mistake then the courts may consider SP. conduct of the parties in each case.
• Unfair Conduct - The court will look at the plaintiff's conduct and
determine if there was any unconscionability on their part.
• Plaintiff in Breach or not Ready, Willing and Able - Not every breach will
result in the loss of opportunity for SP. Where the breach is of an essential
term, or is substantial in nature, the plaintiff will not get SP unless the
defendant contributed to the breach, or other circumstances
LLB 20503 : SP 11/01/2022
References
• Zuraidah Ali et al – Equity & Equitable Remedies
• Mohsin & Wan AZLAN, EQUITY & TRUSTS IN MALAYSIA : Chapter xii
• ANY OTHER BOOKS ON EQUITY
• SPECIFIC RELIEF ACT 1950
LLB 20503 MKM (c) FUHA, UNISZA. 93

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LLB 20503 : SP 11/01/2022

LLB 20503 MKM (c) FUHA, UNISZA. 2

OUTLINE OF TOPIC INTRODUCTION

INTRODUCTION APPLICABLE LAW

DEFINITION & NATURE DEFINITION & NATURE

NATURE OF SP REQUIREMENTS BEFORE COMMENCING SP

• Generally - granted pursuant to breach OR a threatened breach of a • Requirements:

NATURE OF SP UNDER SRA 1950

GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is

GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is

GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is

GENERAL CHARACTERISTICS: SP is GENERAL CHARACTERISTICS: SP is discretionary

GENERAL CHARACTERISTICS: SP is discretionary remedy

• HAYWOOD v COPE (1858) 25 Beav 140 – SP even though mine was

GENERAL CHARACTERISTICS: SP a remedy in personam GENERAL CHARACTERISTICS: SP a remedy in personam

GENERAL CHARACTERISTICS: SP a remedy in

GENERAL CHARACTERISTICS: Only GENERAL CHARACTERISTICS: Only positive/enforceable

GENERAL CHARACTERISTICS: Awarded only if

GENERAL CHARACTERISTICS: Awarded only if damages GENERAL CHARACTERISTICS: Awarded only if

GENERAL CHARACTERISTICS: Awarded only if damages

GENERAL CHARACTERISTICS: Damages may be awarded

Situations where Specific Performance may be granted

Situations where Specific Performance may be granted

Situations where Specific Performance CANNOT be

CONTRACTS NOT ENTITLE TO SP

PARTIES NOT ENTITLE TO SP SP against Government

DEFENCES: s 21(2)(a)unfair advantage DEFENCE: Sec.21(2)(a) – unfair advantage

DEFENCES: s 21(2)(b) hardship DEFENCE: Sec.21(2)(b) unforeseen hardship

DEFENCE: HARDSHIP HARDSHIP

HARDSHIP Defence: delay

Defence : others Factors affecting grant of SP

Factors affecting grant of SP Factors affecting grant of SP

Vitiating factors CONCLUSION

LLB 20503 MKM (c) FUHA, UNISZA. 93

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