Specific

Performance
Definition
Whenacourtdirectsapartytoperformthe
obligationimposedonitbythecontract;
Itisaremedywhichcompelstheexecution
ofacontractwhichrequiressomedefinite
thingtobedonebeforethetransactionis
completed;
Thepartiesrightsaresettledanddefined
inthemannerintended;
A party to a contract is generally
compelledtoperformwhathehasagreed
to do when damages may not be an
adequate remedy the decree of specific
performancemayberefused.

Applicable Law

WongKupSingvJeramRubberEstate
Ltd

ThePenteredintoanagreementwiththeDto
buyfromhimarubberestatewithinaperiod
oftimeclearlystipulated.ThePfailedtobuy
within stipulated time and requested
extension,on6occassionwhichweregivento
him.
However,thePstillfailedtobuyatthatday.
Later,theDrefusedtosellandconsequently
thePclaimedSP.
Held:theDshouldgiveareasonablenoticeof
theirintentiontoabandonthecontractifthe
balanceofthepurchasemoneywasnotpaid.
However,thePprovesacontinuousreadiness
andwillingnesstoperformthecontractfrom
the date of the contract until the date of
hearing.Therefore,SPordered.

YeoLongSengvLuckyPark(Pte)Ltd

Section1129ofSpecificReliefAct

CourtrefusedtograntSPasdamagescould
provideanadequateremedy.

General Principle

LangenandWindvBell

1.Discretionaryremedy

InMalaysia,Section21ofSPAdeals
with the discretion of the court to
decreespecificperformance.
SPmaybedecreedbyacourtsolelyat
its discretion, except in cases where
clearcutprovisiondeprivesthecourtof
thisdiscretion.
The court exercise their discretion to
grantorrefuseadecreeofSPmainlyin
cases involving delay, hardship,
mistakeorconductofthePlaintiff.

Thepurchaserbroughtaspecificperformance
actionforthesaleofshares,underacontract
whereby the purchase price could not be
ascertained for about two years after the
agreeddateforthetransferofshare.Thecourt
hadregardtothe equitable principle thatan
unpaidvendorisentitletoalienonthesubject
matterofthesale,refusedtograntanorderfor
specificperformanceexceptinaformwhich
would effectively safeguards the equitable
lien.

2.Itisremedyinpersonam

Actsinpersonam,whereitwasagainst
the individual defendant not his
property.
CourtwillorderSPofacontractforthe
saleoflandwhichmaybelocatedina
foreign country but whose owner is
withincourtsjurisdiction;orthecourt
mayorderfortheadministrationofthe
assets abroad if the executors are
withinthecourtsjurisdiction.

PennvLordBaltimore

Where the plaintiffs and defendant entered

intoawrittenagreementfixingtheboundaries
ofPennsylvaniaandMaryland,theformerof
whichbelongedtotheplaintiffsandthelatter
to the defendant. The plaintiffs sued the
defendantinEnglandtohave theagreement
specifically performed, and one of the
objectionstakesbythedefendantwastothe
jurisdictionofthecourt.
This objection was overruled by Lord
Hardwickeonthegroundthatdecreedspecific
performanceofanEnglishagreementrelating
to the boundaries between Pennsylvania and
Maryland,despitetheinabilityofthecourtto
enforceitsremedyinrem.
SPofanagreementwasdecreed,eventhough
thesubjectmatterwasnotinEnglandbutin
NorthAmerica

RichardWestPartners(Inverness)Ltd
vDick

Specific performance was decreed of a

contract for sale of land outside the
jurisdiction against a defendant within it.
Although the land was not within the
jurisdiction,thedefendantwas,andthecourt
would hold him in contempt unless he
complied.

3.Damagesnotadequateremedy

Ingeneral,equitydoesnotinterveneif
theremedyoflawisadequate.
Theusualremedyatlawforbreachof
contract is damages, for failure to
returntoreturnachatteltoitsowner,it
isdamagesfordetinue.
Damages has been regarded as
inadequate to put the plaintiff in the
same position as if the contract had
beenformed(orthepropertyreturnto
him)bythedefendantinanumberof
differentareas.

Section11(1)(c)
Specificperformanceofanycontractmay,in
the discretion of the court, be in enforced,
wheretheactagreedtobedoneinsuchthat
pecuniary compensation for its non
performancewouldnotaffordarelief.

Illustrations
(a)
AcontractwithBtosellhimahouse
for$1000.BisentitledtoadecreedirectingA
to convey the house to him, he paying the
purchasemoney.
(b)
AcontractstoselltoBcontractstobuy
a certain number of railway shares of
particulardescription. A refuses to complete
the sale. B may compel A specifically to
perform this agreement, for the shares are
limitedinnumberandnotalwaystobehadin
themarketandtheirpossessioncarrieswithit
the status of share holder which cannot
otherwisebeprocured.
(c)
AcontractwithBtopaintapicturefor
B who agrees to pay therefore$1000. The
picture is painted. B is entitled to have it
delivered to him on payment or tender of
$1000.

Section11(2)
Raises a presumption that the breach of a
contract to transfer immovable property

cannot be adequately relieved by

compensationinmoney,unlessthecontraryis
proved. Similarly, it is presumed that the
breach of contract to transfer movable
propertycanbethusrelieved.

GanRealtySdnBhdvNocholas

Thedefendantnegotiatedwiththeplaintiffthe
saleoftheirrespectivesharesontheOriented
Bank of Malaya Berhad. The terms and
conditionsoftheagreementwereconfirmedin
theletter.Theplaintiffhadreasontobelieve
thatthedefendantswereabouttodisposeof
their shares in the bank and they obtained
injunctions restraining the defendants from
partingwiththeirshares.Theplaintiffclaimed
specificperformanceoftheagreement.
Ifthelosscaneasilybequantifiedinmoney,
thecourtwillnotgrantSP.

DuncuftvAlbrecht

Thecourtdecreedspecificperformanceofan
agreementforthesaleofrailwayshareswhich
are limited in number and not always to be
had in the open market. But the shares in
questionaresuchthattheycaneasilyobtained
from the open market, so that the loss can
easilybequantifiedinmoney,thecourtwill
notgrantspecificperformanceofthecontract.

H.A.SecuritiesSdn.BhdVNgKong
Yeam

in1988,Roxyhadproposedarightissuedof
135646sharesatRM1eachplaintiffandthe
defendant entered into two memorandum of
understanding (MOU), whereby the plaintiff
depositedwiththedefendanttwoandahalf
million shares (fully paid) in Roxy Co. in
exchange for a paymentof RM5 million by
the defendant. It was agreed that if the
proposed rights issue was cancelled, the
plaintiffcouldclaimbackthesaid2million
shares on payment of RM5 Million by the
defendant.Itwasagreedthatiftheproposed

rightsissuewascancelled,theplaintiffcould
claim back the said 2 million shares on
payment of RM 5 million to the defendant.
Therightissuedwasaborted.Ayearelapsed,
andthenonlythe plaintiffclaimedbackthe
sharesafterpayingRM5Million,butbefore
thedefendanthadalreadysoldouttheshares.
The plaintiff is now claiming specific
performanceoftheagreement.Thedefendant
saysthatfourmonthafterthecancellationof
rightsissuedtheywrotetotheplaintiffbuthe
didnotrespondforanyapparentreason.No
explanationwasgiven.ItwasheldtotheKL
HighCourt;
Whydidnotthe plaintiffrespondto
thatletteratall?Novalidexplanation
had been forthcoming and the only
conclusion is that they were either
waitingforthepricetogouporthey
hadthendecidednottoexercisetheir
option to demand the return of the
shares.Thedefendanthadactedstrictly
asrequired.RM5Millionwasatstake
and stoke shares are a volatile
commodity.Inthesecircumstances,the
plaintiff surely cannot now ask for
specificperformancebecause;
(a)
Theshareswerefreelyavailable
intheopenmarket,unlikethedecision
in Gan Realty Sdn. Bhd. V Nicholas
(1969)2MLJ110.
(b)
Damageswouldbeanadequate
remedyasdecidedinYeoLongSeng
v.LuckyParkPt.LTD
(c)
The plaintiff had ignored the
defendantsletterforoneyear
(d)
Of the fact that the shares had
actuallybeensoldbeforetheplaintiffs
delayeddecisiontodemand...
S.11(2)Presumption
o 1. Court always presume
transaction of immovable
property is always inadequate
damages unless can prove
otherwise(Dfmustprove)

o 2.MovablePropertytransaction
alwaysadequatedamagesunless
proveotherwise(Pfmustprove)

4. Damages may be awarded in

substitutionfororinadditiontospecific
performance
General Principle: once the specific
performance had been given, it does not
meanthattheplaintiffdoesnotgetforthe
othercompensation.

Section13ofSRA
Section14ofSRA

Damagesmaybeawardedforapart
unperformed

givenecessarywrittenconsentandtoexecute
PowerofAttorneyinfavoroftheplaintiffor
its nominee for the purpose of execution of
chargesandfinanciersdocumentstofinance
the development project. The Joint Venture
project went on without any hitch until the
demisedofthedeceased.
Thedefendantsbeingtheheirsofthedeceased
hadrefusedtohonourtheirobligationsunder
the said Agreements. Upon the death of the
deceased, the defendant was adamant and
refused to cooperate with the plaintiffs to
executethenewpowerofAttorney.Forthat
reasons,theplaintiffscouldnotdevelopedthe
Landswithin6monthasstatedunderthesaid
Agreements.
The court held that, after take into
considerationonthefactofthecircumstances,
thecourtallowstheplaintiffsclaimwithcost.

IbrahimbinSaidinvHitambinAli

Section18ofSRA
Section19ofSRA

SPevenwheredamagesareagreed
upon

5. Specific Performance unaffected by

waiver
AllenvElNasrExport

BinaanSentosaSdnBhd
Plaintiff files the Writ of Summons and
Statement of Claim against the defendant
claiming for specific performance and the
otherconsequentialrelief.
In this case, plaintiff enters a Joint Venture
Agreement and Supplementary Agreement
withCheSodabinCheHassan(thedeceased)
forthepurposetodeveloptwoofland.
Pursuant to the said agreement, a Power of
Attorneywasexecutedbythedeceaseinfavor
oftheplaintifftoact,conductandmanagedall
thedeceasedsaffairsinrelationtotheland.
Thedeceasedtoohadreceivedaconsideration
ofRM30,500.00fromtheplaintiffinrespect
ofthejointventureproject.Itwasthetermof
the said Agreements that the deceased to
delivertheLandsfreefromencumbrances,to

Theprinciplebywaiverissimplywhere,if
one party, by his conduct, leads another to
believethatthestrictrightsarisingunderthe
contractwillnotbeinsistedon,intendingthat
theothershouldactonthatbelief,andhedoes
actonit,thenhefirstpartywillnotafterwards
beallowedtoinsistonthestrictlegalrights
whenitwouldbeinequitableforhimtodoso.

PlasticmodaSocietaPerAzioniv
Davidsons(Manchester)

There must be no consideration moving for

himwhobenefitsbythewaiver.Theremaybe
nodetrimenttohimbyactingonit.Theremay
be nothing in writing. Nevertheless, the one
whowaiveshisstrictrightscannotafterwards
insistonthem.Hisstrictrightcannotatany

ratesuspendedsolongasthewaiverlasts.He
mayonoccasionbeabletoreverttohisstrict
legalrightforthefuturebygivingreasonable
noticeinthatbehalf,orotherwisemakingit
plain by his conduct that he will thereafter
insistonthem.

PlenitudeHoldingsvTanSriKhoo

Held: A court of equity enforces SP of a

contractaffectinglandbecauseitactsuponthe
equities contract and not upon the contract
itself.

6. Only Positive contracts may be

specificallyperformed
Section55

Hafshamv.Zenab

WhenPrivyCouncilemphasizedthatthebasis
ofspecificperformanceisavalidcontractin
which one party must have given adequate
considerationtotheotherparty.Agratuitous
agreement is not liable to be specifically
performed.

Section17
Section24

7. Considerations of hardship and

expiry of limitation period may not
necessarilydefeatSP

In general, specific performance may

berefusedinthediscretionofthecourt
where a decree would cause
unnecessarilyhardshiptoeitherofthe
parties,ortothirdparty.
Inadequacyofpriceisnotstandingby
itself , a ground for refusing specific
performance,butitmaybeevidenceof

other factors, such as fraud or undue

influence, which would render
enforcementinequitable.
CivilProceeding=6years
Inremproperty=12years

PatelvAli

Thevendorandherhusbandwerecoowners
of a house which were co own of a house
which they contracted to sell in 1979. The
husband bankruptcy caused a long delay in
completionforwhichneitherthevendorhada
leg amputated. She later gave birth to her
secondandthirdchildren.
Thepurchaserobtainedanorderforspecific
performance against the vendor appealed on
thegroundofhardship.
She spoke little English and relied on help
from nearby friends and relatives, hence it
would be hardship to leave the house and
moveaway.
GouldingJheldthatthecourtinapropercase
could refuse specific performance on the
groundofhardshipsubsequenttothecontract,
even if not caused by the plaintiff and not
related to the subject matter. On the facts,
there would be hardship amounting to
injustice, therefore the appropriate remedy
wasdamages.

HajiOsmanBinAbuBakarv.Saiyed
NoorBinSaiyedMahmud
R.MVenkatachalamChettiarv.N.K.R.
ArunasalamChettiar
8. SP dependant on an option is
unaffectediftheoptionisnotexercised
strictlyintheprescribedmanner.
KauNiaEnterpriseLtdvTeckWah
Corporation

Thefactthatbyanoptioninwritinggivenon
June10,1980,thedefendantsforthesumof

$5000gavetheplaintiffanoptiontopurchase
a property in Singapore with vacant
possession and at the price of $720 000.00.
Completionofthesale andpurchase wasto
takeplaceonNovember10,1980.Theoption
wasexercisableatorbefore4p.monJuly30,
1980. The acceptance was prescribed. The
plaintiffshadtosignatthefootoftheoption
attheportionentitledAcceptanceCopyand
deliver it duty signed together with the
balanceofthe10%ofthepurchasepriceator
beforethetimeaforesaid.
Theplaintiffdidnotexercisetheoptioninthe
modeprescribed.Instead,theyhandedtothe
defendants and the defendants accepted two
cheques aggregating the sum of $67 000
whichtogetherwiththeoptionfeeamounted
to10%ofthepurchaseprice.
Held: that although the Plaintiff did not
exercisetheoptioninthemannerandwithin
the time prescribe, I am satisfied that
defendantshadwaivedthesetermsandhadin
truth and in fact accepted the plaintiffs
belated and altered mode of converting the
option into a conclude contract. This is
conclusive evidence by letter dated July 31,
1980andwrittenbythedefendant.Theletter
acknowledgethereceiptofthetwocheques,
oneofwhichwasfor$5000andtheotherfor
$62000whichwaspostdatedtoAugust23,
1980.Itmadereferencetotheoptionfee.The
defendants confirmed the sale to the
plaintiffs. By saying you have already
exercisedthesaidsaletheymeantormustbe
taken to mean that the plaintiffs had been
deemed by the defendants to have duly
exercisedtheoption.Theletterevenwenton
to provide for interest to be charged if the
postdatedchequewasnotonlyhonouredon
presentation. The letter was accepted by the
plaintiffs.
On8September1980theplaintiffsrequested
the defendants to encash the postdated
cheque. The defendants did. Completion of
the sale and purchase was delayed. On 6
December 1980 the defendants solicitors

statedthatthetransferhadbeenexecutedby
thedefendants.Theyaskedforafirmdatefor
thecompletion.Uptothisstage,itisclearthat
everyactofthedefendantswasinaffirmation
thattheagreementforsaleandpurchasewas
concluded and the actions of the defendants
were steps taken by them towards the
completionofthesale.
On21 January1981 the defendants took an
extraordinary step. They wrote to their
mortgageebanktoauctiontheproperty.Itwas
calculated to deprive the plaintiffs of the
property. It was stated by counsel on both
sides that the property was by then about
$1.6m.Thedefendantsshouldnotbeallowed
to renege on their contract just because the
property market was rising. The plaintiffs
gave notice of completion. The defendants
could not give vacant possession of the
property. The encroachments mentioned
earlierinthisjudgmentwerestillthere.The
plaintiffs insisted on completion
notwithstanding the encroachments. As
evidencedbytheletterdated3April1981and
written by the plaintiffs solicitors, both
parties agreed price to meet the cost and
expenseofremovingtheencroachments.No
agreementwasreachedontheamountofthe
abatement.
Asthedefendantsfailedtocompletethesale
notwithstanding repeated notices from the
plaintiffs,theseproceedingswerecommenced
from specific performance and for an
appropriateabatementofthepriceinviewof
the encroachments. On behalf of the
defendants,itwasarguedthattheoption,not
havingbeenexercisedinthemodeandwithin
the time prescribed, had lapsed. It was also
arguedthattheletterof31July1980wasnot
asufficientmemorandum,asitallegedlydid
not contain the essential terms. The first
contention is not consistent with the plain
wordsandtenorofthedefendantsletterof31
July1980,theeffectofwhichIhadalready
dealtwith.Itissoclearandunambiguous.
This is one case where happily the
contemporaneous documents are such that

theyconclusivelydemonstratetheconclusion
ofacontractinwriting.

9. SP may claim and granted even

before the time of performance has
arrived.
General Rule = the party to the contract
canseekforspecificperformanceifthey
can foresee that the other party could
perform the obligation when the time
arrived.
Eg: B enters into contract selling of the
goodswithC.BrealizethatCcouldnot
performitsobligationonthecontractatthe
time what was promised. So in this
circumstance, B can seek for specific
performanceonthegroundsofanticipatory
breach

LeedsIndustrialCooperativeSociety
Ltd.VSlack

Held: so far, as specific performance is

concerned,theymustalwaysbecaseswhere
therehasbeenananticipatorybreach.

KhatijabaiJiwaHashamvZenab

Facts:acontractsignedbythedefendantfor
thesalebyhertotheplaintiffofa2acreplot
of land in Nairobi, provided inter alia, for

payment of a deposit immediately and the

balanceofthepurchasepriceonpresentation
ofdocumentsoftitletobeexecutedbyboth
partieswithin6monthsfromthedateofthe
contract.
Thedefendantthenrepudiatethecontractand
toreitupwithinafewminutesofsigningiton
thegroundthatshehadneveragreedtosell
thewhole2acresbutonlyanareaofhalfan
acres.OnlyJuly2,1954,someweeksbefore
the lastday for competition, August 19, the
plaintiff instituted proceeding claiming
specific performance of the contract of
February,19.
The defendant contended inter alia, that the
plaintiffwasissuedprematurely,andthatthe
plaintiff should have waited until there had
beenafailuretoperformthecontractwithin
theperiodfixedhereby,notwithstandingthat
shehadpreviouslyintimatedherrefusaltodo
so.
Held:Theplaintiffwasentitledtoanorderof
specific performance. The fallacy of the
defendants contention consisted in equating
therighttosueforspecificperformancewith
acauseofactionatlaw.Inequityallthatwas
required was to show circumstances which
wouldjustifyintheinterventionbyacourtof
equity.
The order of specific performance often
fell into two parts, the first being of a
declaratory nature and the second
containingconsequentialdirection.
Thecourtwouldnot,ofcourse,compela
party to perform his contract before the
contractdatearrived,andwouldgiverelief
from any order in the event of an
intervening circumstance frustrating the
contract.

10. Possibility of compliance is must

(Observancetotheorderisamust)

 Equitableremedieswillneverissueunless
the court can ensure that they will be
observed.
As equity does not act in vain, specific
performance will be decreed only where
the defendant is in a position to comply
withtheorder.

JonesvLipman

Facts:defendantenteredintoacontracttosell
somelandtotheplaintiff,andthensoughtto
avoidspecificperformancebysellingtheland
toacompanyacquiredbyhimsolelyforthis
purposeandcontrolledbyhim.
While specific performance would not
normallybeorderedagainstavendorwhono
longerownedtheproperty,herethedefendant
was still in the position to complete the
contract, because as Russel J said that the
company was the creature of the vendor, a
device and a sham, a mask which he holds
before his face in an attempt to avoid
recognitionbytheeyeofequity.
Thisspecificperformancewasdecreedagainst
thevendorandthecompany.

performance,whollyorpartly,ofatrust,
the specific performance of any contract
may, in the discretion of the court, be
enforced.
Eg:AholdscertainstockintrustforB.A
wrongfullydisposesofthestock.Thelaw
creates an obligationon A to restore the
same quantityof stocktoB,andB may
enforce specific performance of this
obligation

Section11(1)(b)

Anycontractmaybespecificallyenforced
whenthereisnostandardforascertaining
the actual damage caused by the non
performanceoftheactagreedtobedone
Eg:AagreestobuyandBagreestosella
picture by a dead painter and two rare
Chinavases.AmaycompelBspecifically
to perform this contract, for there is no
standardforascertainingtheactualdamage
which would be caused by its non
performance.

Section11(1)(c)

Specific
Performance under
SRA 1950
1. Contract can be specifically
enforced wholly
Specificreliefmaybeorderedforcontract
for land whereby each piece of land is
regardedasunique,contractforthesaleof
stockandshareswhichcannotbebought
in open market, and contract of sale of
chattelswhichareespeciallyrareorofa
particularmanner.

Section11(1)(a)
Contains four situations which specific
performancemaybespecificallyenforced.
Whentheactagreedtobedoneisinthe

Specificperformanceofanycontractmay,
inthediscretionofthecourt,beenforced
where the act agreed to be done is such
thatpecuniarycompensationsforitsnon
performance would not afford adequate
relief.
Eg:AcontractswithBtopaintapicture
forBwhoagreestopaytherefore$1000.
Thepictureispainted.Bisentitledtohave
itdeliveredtohimonpaymentortenderof
the$1000

Section11(1)(d)

Thespecificperformancemayalsobe
enforced when it is probable that
pecuniary compensation cannot be
given for the nonperformance of the
actagreedtobedone
Atransferwithoutendorsement,butfor
valuable consideration, a promissory
notetoB.Abecomesinsolvent,andC
is appointed his assignee. B may

compelCtoendorsethenote,forChas
succeeded to As liabilities and a
decreeforpecuniarycompensationfor
not endorsing the note would be
fruitless

Section11(2)

Raisesapresumptionthatthebreach
of a contract to transfer immovable
propertycannotbeadequatelyrelieved
bycompensationinmoney,unlessthe
contrary is proved. Similarly, it is
presumedthatthebreachofacontract
to transfer movable property can be
thusrelieved.

LohKoonMoy&Anor.v.ZaibunSA
bintiSyedAhmad
Facts:
Thefirstappellanthadagreedtobuyapiece
oflandfromtherespondent,theadministratix
ofanestate.Anorderofcourthadbeengiven
empowering the respondent to sell the land.
Thelearnedtrialjudgefoundinfavourofthe
appellant but found that there was an oral
agreement enabling the respondent to pay
damages for breach. He therefore gave
damagesinfavouroftheappellant.However,
the learned judge refused to order specific
performancebecauseofthedamagesavailable
through the oral agreement. The appellant
appealed.
Issue:
Whether,ifanalternativeremedyisavailable,
aspecificperformancecanbegranted.
Principle:
SpecificPerformanceisanequitableremedy
for breach of contract; an alternative when
money damages, the usual legal remedy; is
inadequate
Judgment:
Inaccordancewithsections18and19ofthe
SpecificReliefAct1950providesforaprayer
ofcompensationandthoughasumbenamed

indefaultiswillingtopaythesame,acontract
may be enforced by an order for specific
performance.
Thelearnedjudgefollowedthejudgementof
the Privy Council in the case of Oxford &
Ors. v. Provand & Anor. whereby the
Lordshipsdeclaredthatthecourtmayexercise
a discretion in granting or withholding a
decree of specific performance taking into
accountthecircumstancesofthecase,conduct
of the parties and their interests under the
contract.
Furthermore,section11(2)SpecificReliefAct
1950hasprovidedthat,infavourofacontract
to sell land, the court shall presume that
monetary compensation is not adequate to
relief the breach of contract to transfer
immovableproperty.
Moreover,inthecourts view, therewas an
element of public policy which operates in
favourofanorderofspecificperformancein
thiscase.
Based on the findings of the court stated
above, the appeal is allowed. The
administratix was ordered to specifically
perform the agreement to sell by executing
proper and valid transfers of the lands in
question upon payment of the full purchase
moneyandafurtherorderthatifshedefaults,
theSeniorAssistantRegistrarbeempowered
to execute the relevant documents on her
behalf.
Therespondenthadnotinanyway
rebuttedthepresumprtionraisedin
S.11(2)

HohAhKimv.PayaTrubongEstate
Sdn.Bhd.
Facts:
Theplaintiffsaretheexecutorsoftheestateof
LiewYeongChoy,deceased,whoenteredinto
an agreement in writing, dated 19 February
1972 with the managing director of the
defendant company whereby the deceased

agreed to buy and the defendant company

agreedtosellaportionofitslandtotheextent
ofabout15acres.Upontheexecutionofthe
agreement, the deceased paid the sum of
$18,000.Clause1,spellsoutthetermsofthe
agreement for sale. Clause 2, states that the
defendants shall from time to time keep the
deceased informed about the Penang
government's option. Correspondence passed
betweenthedefendantsandthedeceased.The
defendants indicatedto the deceasedthat he
couldbuythelandat$7,000peracre,notat
the old price of $4,000. Eventually on 20
January1980,thedefendants'solicitorswrote
totheplaintiffs'solicitorsrefundingthesum
of$18,000whichpurportedtodischargethe
defendants from the said agreement, thus
givingrisetothepresentproceedingsbythe
plaintiffsforspecificperformanceordamages
forbreachofcontract.
Issues:
Whethertheagreementforsaleenforceableat
lawsothattheplaintiffcanclaimforspecific
performance.

andacquiescenceaspleadedinpara10ofthe
defence, there is clear evidence from the
correspondenceandthe defendantDW1that
the parties were at all times negotiating for
specificperformanceofthesaidagreement.In
fact, the defendants through their solicitors
impliedlygave thedeceasedafalsehope of
furnishingadetailedagreementtobeexecuted
betweentheparties.Thiswasfollowedbythe
negotiationsabouttheprice.

Principle:
In granting the specific performance, court
willtakeintoaccountallthecircumstancesin
thatcasethenidentifiedwhetherthedeceased
deserveforthedamagesonlyordamagesand
specificperformance.

MohamedvHoWai

Judgment:
In an action for specific performance of an
agreementforsaleofland,Section9(1)ofthe
LimitationAct1953willapply.
In the present case, the alleged breach
occurredon20January1980.Thereforetime
begantorunfromthatdate.Eveniftheright
of action accrued from the expiry of the
'option' on10 July1973, the plaintiffs were
stillwithinthe12yearperiodfrom24May
1980,whentheplaintiffsfiledtheirstatement
ofclaim.Theplaintiffsactionisnotstatute
barred.Besides,theagreementforsaleisnot
voidabinitioforuncertaintybutenforceable
atlaw.Inaddition,onthedefenceoflaches

The court is therefore satisfied that the

defence of laches and acquiescence cannot
succeed. Then, the court did not grant
specific performance but awarded
compensationforbreachoftheagreement.It
isfairandreasonabletoassesscompensation
onthebasisof$4,000peracrewhichisthe
purchasepriceoriginallyagreedbetweenthe
parties. The defendants were ordered to pay
the plaintiffs the sum of $60,000 as
compensation.Theymustalsorefundthesum
of$18,000whichwaspaidasdepositandthe
costsoftheactiontotheplaintiffs.
Facts:
Plaintiffprayedforspecificperformanceofan
agreement to grant a monthly tenancy. The
plaintiffs uncle obtained a monthly tenancy
ofthepremisesinquestionin1929.Aftermore
than twenty years of peaceful enjoyment of
thistenancy,theplaintiffsunclehadtovacate
thepremiseswhenin1951theMenteriBesar
ordered the vacation of the whole area. In
1957,whentheareawasmadeawhitearea,
plaintiffs uncle applied to the proper
authorities for reoccupation of the premises
andthispermissionwasgiventohimayear
later. However, the owner of the premises
entered into possession of the premises
because plaintiffs uncle did neither inform
the owner of his vacation, nor about his
whereabouts, nor paid rent, giving an
impressionofabandonment.
In the meantime, the plaintiff became a
partner in his uncles business and started
proceedingsagainstthedefendant.

Issue:
Whether the Court will grant specific
performanceinthecaseofexecutedcontract.
Principle:
It is an elementary principle of equity that
specificperformancewillonlybegrantedin
the discretion of the Court in the case of
executorycontracts.
Judgment:
Theplaintiffpraysforspecificperformanceof
the agreement dated 12th September 1929,
whichhadbeenfulfilled,inotherwords,itsan
executed and not an executory contract. An
executed contract is one which is already
fulfilled.Meanwhile,executorycontractisa
contract where it remains to be carried into
effect.Itisanelementaryprincipleofequity
thatspecificperformancewillonlybegranted
inthediscretionoftheCourtinthecaseof
executorycontracts.
Section 11 ofthe Specific ReliefAct 1950
lays down the conditions under which the
discretionarypowersareexercisablewhichis,
executorcontracts.FollowingthecaseofJ.M.
AbdulKadirvShawBros,thecourtwould
notgrantspecificperformanceforthemonthly
tenancy. The more suitable remedy for the
plaintiffisinsection7andsection8 ofthe
SpecificPerformanceAct1950.
Accordingly the plaintiff fails and the
actionisdismissedwithcosts.
SP through interlocutory mandatory
injunction.

Section20

This section laid down the situations

whereby the contracts are not
specificallyenforceable.Theyare:
a) A contract for the non
performance of which the
compensation in money is an
adequaterelief
Eg: A contracts to sell and B
contractstobuy,$10,000inthe
fourpercentloanoftheCityof
Penang.
b) A contract for personal service
willorvolition.
Eg:A,anauthor,contractswith
B a publisher, to complete a
literarywork,Bcannotenforce
specific performance of these
contract.

LumleyvWagner
Ms.Wagner,awellknownoperastar,agreed
with Lumley to sing in a particular theater
duringtheperiodofthecontract,andnotsing
foranyoneelse.Shehowever,agreedtosing
for another person in contravention of her
contract with Lumley, who successfully
obtained an injunction to restrain her from
singingforanyoneelseduringtheperiodof
contract. It is to be noted that SP of the
promisetosingwasneitheraskedfornorwas
enforceable.Becauseitiswellestablishedthat
thereisnoSPofcontractswhicharepersonal
andinvolverenderingofpersonalservices.

SivaperumanvHeahSeokYeongRealty
SdnBhd
TintaPressvBIMB
2.
Contract
cannot
specifically enforced

be

c)Anuncertaincontract
Eg: A, the owner of a
refreshmentroom, contracts
with B to give him
accommodation there for the
saleofhisgoodsandtofurnish

him with the necessary

appliances.Arefusestoperform
hiscontract.Thecaseisonefor
compensation and not for
specific performance, the
amount and nature of the
accommodation and appliances
beingundefined.
Amisdescriptionoftheproperty
agreedtobesoldinthecontract
document make the contract
unenforceable.
Butwhenamisdescriptionisa
trivialnature,thenthepurchaser
who contracted to buy cannot
allowedtorepudiateonaccount
ofhistrivialitywhichisnoway
affectsthevalueorutilityofthe
property.
However, where misdescription
isofaseriousnature,thenSPis
refused on the ground that the
purchaser cannot be compelled
topurchasesomethingwhichis
substantiallydifferentfromwhat
hecontractedtobuy.
d) A contract which is in nature
revocable
Eg:AandBcontracttobecome
partners in a certain business,
the contract not specifying the
duration of the proposed
partnership.Thiscontractcannot
bespecificallyperformed,either
A or B might at once dissolve
thepartnership.
e) A contract made by the trustee
eitherinexcessoftheirpowersorin
breachoftheirtrust.
Eg: Two trustees, A and B,
empoered to sell trust property
worth$10,000,contracttosellit
toCfor$3000.Thecontractis
so disadvantageous as to be a

breachoftrust.Ccannotenforce
itsspecificperformance.
f)Acontractmadebyoronbehalfof
a corporation or public company
created for special purposes, or by
thepromotersofthecompany,which
isinexcessofitspower.
Eg:Acompanyexistingforthe
sole purpose of making a
railway contracts for the
purchaseofapieceoflandfor
thepurposeoferectingacotton
mill thereon. This contract
cannotbespecificallyenforced.
g) A contract the performance of
whichinvolvestheperformanceofa
continuous duty extending over a
longerperiodthanthreeyearsfrom
itsdate.
Eg:Acontractstoletfortwenty
oneyearstoBtherighttouse
such part of a certain railway
made by A as was upon Ns
land,andthatBshouldhavea
right of running carriages over
thewholelineoncertainterms,
and might require A to supply
thenecessaryenginepower,and
that A should during the term
keeping the whole railway in
good repair. Specific
performance of this contract
mustberefusedtoB.
h) A contract of which a material
partofthesubjectmattersupposed
bybothpartiestoexist,has,beforeit
hasbeenmade,ceasedtoexist.
Eg: A contracts to pay an
annuitytoBforthelivesofC
and D. It turns out that, at the
date of the contract, C, though

supposedbyAandBtobealive,
wasdead;thecontractcannotbe
specificallyperformed.

ScopeofSection20

Thesituationwhichacontractmaynot
be specifically enforceable are not
exhaustive
Evenifthecontractisnotcoveredby
the section, the court may still order
againstitsSP.
Eg of contract which cannot be
specificallyenforced:
o Illegal and immoral contract,
agreements

without
consideration
ContractsLackingMutuality
Equity will not permit a party to
enforce a party to enforce a contract
which the other part could not have
enforcedagainsthim.

FlightvBolland

Aninfantwhoenteredintobilateralcontract
with an adult, filed a bill through his next
friendforitsSP.Thebillwasdismissed.
Theprincipleofmutualityincontractsadmits
ofmanyexceptionslike;
i. A similar contract procured by the
fraudormisrepresentationofoneofthe
parties may be enforced against him,
althoughnotbyhim.
ii.Acontractbetweenaninfantandan
adultmaybeenforcedagainsttheadult
aftertheinfantcomesofage,although
no decree could be made against the
plaintiff.

MirSarwarjanvFakhruddin

Held:acontractwhichcanonlybeenforcedat
theoptionofonepartycannotbespecifically
enforced.

3. For whom Contract cannot be

specifically enforced

Section23
Section20(1)(e)ContractbyTrusteein
breachoftrustcannotbeenforced
ChunPengCheevChoYewFai
Facts:Thedefendantsarethepresenttrustee
ofSinSzeSiSzeYaTemple.InJanuary1945
an agreement was entered into between the
plaintiffandthethensurvivingtrusteesofthe
Temple, for the sale of a shophouse
belonging to the Temple for which the
purchasepricewasfixedandhasbeenpaid.
Theplaintiff,subsequenttotheagreementwas
permittedtocollecttherentfromthetenantof
the shophouse and did so until December
1,1950,whenasaresultofalatter,thetenant
paid rent to the trustee which he had
previously done before the date of the
agreement.
Held:
S20(e)ofthespecificreliefordinance1950
contractbytrusteesinbreachoftrustcannot
beenforced.
S2(g)ofthecontractordinanceanagreement
notenforceablebylawissaidtobevoid
S 66 of the contract ordinance when a
contract become void, any person who has
receivedanyadvantageundersuchcontractis
boundtorestoreittothepersonfromwhom
he received it. The agreement cannot be
enforcedandthedefendantsmustrepaytothe
plaintiff the amount which the surviving
trusteesreceivedfromhim.

4. For whom contracts cannot be

specifically enforced except with
a variation

Section25

Section 25 of the Specific Relief Act

1950highlightsfraudasagroundon
thebasisofwhichspecificperformance
mayberefused.
Specificperformanceisdependentona
completeanddefinitecontract.
Thus,acontractcannotbespecifically
enforced if it is suffering from
illegality, uncertainty, fraud, undue
influence, mistake, misrepresentation
orlackofconsent.
A contract which lacks in any of the
threeessentialsofproposal,acceptance
orconsiderationisalsonotenforceable.
Similarly, varied and vague contracts
where the meaning may not be
ascertainedcannotbeenforced.

RpaidofftheAdebttoC&arrangedwiththe
solicitor whereby by the said solicitor no
longerlookedupontheAforthepayment.
TheAdespitethisagreementrefusetotransfer
thesaidlandtotheR.Itwascontendedthat:
1)Thecontractwasunfair
2)Noproofoffulfillment
3)WasnoproofthattheRwasablen
willingtoperformthecontract
4)Therewasunduedelayonthepartof
R
5) Payment to C was a condition
precedent
Held:
TheAhadreceivedinthefullestmeasureall
thathebargainedforandthecourtshouldnot
exercisethepowersunderS.21
In view of the evidence, the second ground
mustfail
7. No SP of part of contract

Section16
Exception:Section1315
5. Against whom contract cannot
be specifically enforced

Section27

Specificperformanceofacontractcannot
beenforcedagainstapartyincase:
o Ifthe considerationtobe received
by him is so grossly inadequate/
couple with other circumstances
evidenceoffraud./undueinfluence
o Ifassentwasobtainedbythemisrep
,concealment,circumvention/unfair
practices
o If assent was given under the
influence of mistake of fact,
misapprehension/surprise

TanMengSanvLomKimSwee

A agreed to transfer a land to the R

inconsiderationoftheRsettlingtheAdebtto
C&payingtheAsolicitorhisfee.

Defences

i.IneffectiveContract

Acontractcannotbeenforcedifthereis
illegality, uncertainty, fraud, undue
influence, mistake, misrep or laps of
consent.
A contract which lacks in proposal,
acceptance or consideration is also not
enforceable

Section25

Highlight fraud which specific

performancemayberefused.

wasrefusedalthoughthemistakewasdueto
entirelytothedefendantsfaultandnotinany
waycausedbythevendor;andthedefendant
waited until the auction was over before
declaringthemistake.

CraddockBrosvHunt

Basically,wherethemistakeisinthewritten
recordofthecontract,theplaintiffmayobtain
rectification and specific performance in the
sameaction.

Section27(a)

Mere in adequate is not a defense

unlessfraudisevidence

iii.UnfairAdvantage
Section21(2)(a)
PolygramRecordsSdnbhdvThe
Search

ii.Misrepresentation,Mistakeoffact
Section27
Specific performance cannot be enforced
which obtained by misrep, concealment,
mistakenetc.
D not allowed to resist specific
performancebyalleginghisownfaultor
mistake.(DukeofBeaufortvNeeld)
Howeverifthecourtfeelitwouldinvolve
hardship, it may refuse to order specific
performance.
P may obtain rectification & specific
performanceifamistakeisdetect.

WatkinvWatsonSmith

no specific performance where elderly

vendorofferedbungalowforsaleat2,950by
mistake, intending 29, 500. There was no
contract.

MalinsvFreeman

Whereanestatewaspurchasedatanauction
andthedefendantbidunderamistakeasto
thelotputupforsale.Specificperformance

iv.Delay

Generallyinequitytimeisnotheldtobe
oftheessenceofacontract,thusspecific
performancemaybedecreedalthoughthe
contractual date for performance has
passed.
Failuretocompleteonthecontractualdate
may, however render the delaying party
liabletodamagesforbreachofcontract.
Thefactthattimeisnotoftheessencein
equity does not negative a breach of
contractinsuchacase.
Itmeansthatthebreachdoesnotamount
toarepudiationofthecontract.
Thusthedelayingparty,althoughliableto
damages, does not lose the right to seek
specific performance, nor will he forfeit
his deposit, provided he is ready to
completewithinareasonabletime.

v)Hardship
Section36(1),(2)LimitationAct1980
England
Nostatutoryperiodoflimitationtobarclaims
ofspecificperformance,exceptunreasonable
delay:
Delaybecomeirrelevantif:
ThePhastakenpossessionunderthe
contract
Heisseekingspecificperformanceto
getthelegaltitleoftheproperty
Delaybecomerelevant:
thecontractitselfisdisputed,andnot
itsformalization

Section6(1)(a)ofLimitationAct1953
Actionsfoundedonacontractwhichnaturally
includes specific performance shall not be
broughtaftertheexpirationofsixyearsfrom
thedateinwhichthecauseofactionaccrued.

Section22

Exemptstrustpropertiesfromperiodof
limitation

Section21(2)(b)

The court might refuse to grant specific

performance where the performanc would
involvesomehardshipontheDwhichhedid
notforesee.

PatelvAli

Thevendorandherhusbandwerecoownerof
ahousewhichtheycontractedtosellin1979.
Thehusbandsbankruptcycausedalongdelay
in completion, for which neither the vendor
hadalegamputated.Shelatergavebirthto
hersecondandthirdchildren.Thepurchaser
obtained an order for specific performance
against which the vendor appealed on the
groundofhardship.ShespokelittleEnglish,
and relied on help from nearby friends and
relatives,henceitwouldbeahardshiptoleave
thehouseandmoveaway.
Held: Hardshipmaybedefineasonewhich
theDcouldnotforeseeatthetimetoentering
thecontract.
Thecourthastotaketherelativeviewofthe
hardship to P and D before ordering and
refusingspecificperformance.

Section23

Nothing in this act shall effect any

equitablejurisdictiontorefusereliefon
thegroundofacquiescene.

VenkatachalamvArumasalam

It may well be that the performance of his

contractwouldinvolvesomehardshiponthe
estateofthevendorwhichthevendordidnot
foresee.
Therearehardshipsonbothsides:
If the vendor estate is held to his
bargain, there will be hardship in the
sensethatasaresultofcircumstances
beyondanyonecontrolthebargain.
Ifitisnotperformeditwillbeatleast
acommensuratehardshiponthePtobe
deprivedofthefruitoftheirbargain

vi)DefectinTitle

A purchase cannot be compelled to

takeabadtitle,wherethedefectintitle
isduetoreason:
misdescription

of
propertyinthecontractof
sale
Land being burdened with respective
covenants
Vendor having no title the purchaser
may rescind the contract, unless the
vendorremovesthedefectintitle

Section24ofSRA

Acontractforthesaleorlettingofproperty,
whether movable or immovable, cannot be
specificallyenforcedinfavourofavendoror
lessorwho:
knowinghimselfnottohaveanytitletohis
property
thoughtheenteredintothecontractbelieving
thathehadagoodtitletotheproperty
Previous to entering into the contract has
madeasettlementofthesubjectmatter