Chapter 10 - Specific Performance

Question 1

SPECIFIC PERFORMANCE

Overview

Answer 1

1) general principles on SP
2) discretion to grant SP
3) discretion to refuse SP
4) contracts which may be specifically enforced
5) contracts which cannot be specifically enforced
6) specific performance for parts of contract
7) damages in lieu or in addition of
8) LAD & SP
9) SP on specific ctt

Question 2

SPECIFIC PERFORMANCE

general principles

Answer 2

Ganam Rajamany v Somoo Sinniah:

• discretion to grant SP is discretionary;
• in exercising the discretion, attention must be given pn:

1) circumstances of the case;
2) conduct of the parties;
3) their respective interest under the contract.

Question 3

SPECIFIC PERFORMANCE

discretion to grant SP

Answer 3

1) readiness & willingness - Ganam Rajamany v Somoo Sinniah:
- party seeking for SP must show that he is at all time ready & willing to perform its obligation under the contract.
2) additional terms - Loo Choo teng v Cheok Swee Lee:

• court may impose additional terms it thinks necessary;
• if there is non-compliance w the terms, party against the order for SP may apply to have SP removed.

Question 4

SPECIFIC PERFORMANCE

discretion to refuse SP

Answer 4

1) hardship - Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd:

• under S.21(2)(b), court may refuse to grant SP is granting of it would involve hardship on the D which he did not foresee.
• each case must be decided on its own.

2) dirty hands - Ang Hiok Seng v Yin Yut Kiu:

• court will refuse to grant SP if the party seeking the remedy had not come to court with clean hands.
• otf, SP refused as party has involved in fraud.

Question 5

CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED

overview

Answer 5

1) the law
2) no standard to ascertain actual damage
3) subject to condition precedent

Question 6

CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED

the law

Answer 6

S.11 SRA

Question 7

CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED

no standard to ascertain actual damage

Answer 7

Gan Realty Sdn Bhd v Nicholas & Ors:

• ctt for sales of shares not available in open market;
• sp is granted since there is no standard to ascertain the actual loss for its non-performance to be compensated by damages.

Question 8

CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED

subject to condition precedent

Answer 8

Loo Choo Teng v Cheok Swee Lee:

• judge granted SP for vendor to perform its obligation & fulfil the condition precedents.

Question 9

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

overview

Answer 9

1) the law
2) damages adequate remedy
3) uncertain terms
4) constant supervision

Question 10

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

the law

Answer 10

S.20 SRA

Question 11

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

damages adequate remedy

Answer 11

Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd:

• SP will not be granted if damages are adequate remedies;
• S.20(1)(a) shall be read together with S.11(2);
• for cases involving contracts dealing with SPA of property, S.11(2) will prevail.

Question 12

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

uncertain terms

Answer 12

Lin Nyuk Chan v Wong Sz Tsin:

• SP will not always be denied just because of uncertainty of terms;
• court will look at whether the uncertain terms are so fundamental as to deprive the right to SP.
• if uncertain terms are subsidiary, SP will nonetheless be granted.

Question 13

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED

constant supervision

Answer 13

Lee Sau Kong v Leow Cheng Chiang:

• court will refuse to grant SP where granting it will require constant supervision of the court.
• OTF, confusion as to subject-matter of ctt (extract iron scrap) = SP refused.

Question 14

SPECIFIC PERFORMANCE FOR PART OF CONTRACT

the law & scope

Answer 14

1) the law - S.16 SRA
2) scope - City Investment Sdn Bhd v Koperasi Serbaguna Ceupacs Tanggungan Bhd:

• SP on part of ctt also depends whether SP can be granted in the first place (i.e. S.13/14/15 SRA);
• if SP cannot be granted at the first place, by virtue of S.16, court does not have the power to grant SP on part of the ctt.

Question 15

DAMAGES IN LIEU OF OR IN ADDITION TO

the law

Answer 15

S.18 SRA

Question 16

DAMAGES IN LIEU OF OR IN ADDITION TO

when available

Answer 16

1) Only for contract that is able to be specifically enforced - Lee Hoy & Anor v Chen Chi:

• Damages under S.18 is only available for contract that is able to be specifically enforced;
• If the ctt is not able to be specifically enforced, court in refusing SP for such contracts may NOT grant compensation under S.18.

2) Only available when expressly claimed - Loh Boon Siew v Chin Kim & Anor:
- damages under S.18 will only be available if party sues for them, i.e. specifically claimed for it.

Question 17

DAMAGES IN LIEU OF OR IN ADDITION TO

must be specifically pleaded

CA, 2020

Answer 17

Bukit Melita Sdn Bhd v Revolusi Rancak Sdn Bhd:

• for court to exercise power under S.18, there must be specific prayer asking for damages in lieu of or in addition to the prayer of specific performance;
• P could not rely on catch-all clause “any other order the court deems just”.

Question 18

DAMAGES IN LIEU OF OR IN ADDITION TO

abandonment right to SP

Answer 18

Insofex Sdn Bhd v Labasama Group (M) Sdn Bhd:

• once claim for SP is abandoned, pleadings cannot stand for the purpose of alternative claims for damages unless the pleadings are amended.
• w/o doing so, P cannot be allowed to change the whole nature of the claims.

Question 19

LAD CLAUSE & SP

whether a bar

Answer 19

1) The law:

S.19 SRA

2) Application - Zaibun Sa binti Syed Ahmad v Loh koon May:

• liquidated damages are not bar to SP.
• otf, FC held that HC judge has erred when he refused to grant SP on grounds that parties have fixed sum payable as compensation.

Question 20

SPECIFIC PERFORMANCE ON SPECIFIC CONTRACT

Building contract

Answer 20

1) The law:
- S.20(1)(b) SRA
2) Application - Wolverhampton Corp v Emmons:

• GR: court will not enforce building contracts
• exceptions: particulars of work are clearly ascertained, P has substantial interest to have the ctt performed, D has substantially obtained the possession of the land which obligation is to be performed.

3) Application - Oon Hock Lai v Lee Kok Leong:
- building ctts usually need constant supervision & damages are usually an adequate remedy.

Question 21

SPECIFIC PERFORMANCE ON SPECIFIC CONTRACT

contracts for sale of land

Answer 21

1) The law & factors:

• S.11(2) SRA;
• Delay;
• Whether the land has been sold off;
• Impossibility.

2) Scope of S.11(2) - Loh Koon Moy & Anor v Zaibun Sa:

• there is presumption that in ctts for immoveable property, monetary compensation cannot be an adequate remedy.
• burden is on the D to rebut the presumption.

3) Application - Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd:

• SP will not be granted if damages are adequate remedies;
• S.20(1)(a) shall be read together with S.11(2);
• for cases involving contracts dealing with SPA of property, S.11(2) will prevail.

4) property has been disposed off - Eng Mee Yong & Ors v Letchumanan:

• SP may not be granted if the land in question has been sold to a subsequent purchaser;
• the purchaser will instead be able to recover for damages;
• if the purchaser becomes aware that the vendor wants to dispose off the land to subsequent purchaser, he may seek injunction to prevent vendor from doing so.