Chapter 10 - Specific Performance Flashcards
SPECIFIC PERFORMANCE
Overview
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
SPECIFIC PERFORMANCE
general principles
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.
SPECIFIC PERFORMANCE
discretion to grant SP
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.
SPECIFIC PERFORMANCE
discretion to refuse SP
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.
CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED
overview
1) the law
2) no standard to ascertain actual damage
3) subject to condition precedent
CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED
the law
S.11 SRA
CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED
no standard to ascertain actual damage
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.
CONTRACTS THAT MAY BE SPECIFICALLY ENFORCED
subject to condition precedent
Loo Choo Teng v Cheok Swee Lee:
- judge granted SP for vendor to perform its obligation & fulfil the condition precedents.
CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
overview
1) the law
2) damages adequate remedy
3) uncertain terms
4) constant supervision
CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
the law
S.20 SRA
CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
damages adequate remedy
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.
CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
uncertain terms
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.
CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED
constant supervision
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.
SPECIFIC PERFORMANCE FOR PART OF CONTRACT
the law & scope
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.
DAMAGES IN LIEU OF OR IN ADDITION TO
the law
S.18 SRA
DAMAGES IN LIEU OF OR IN ADDITION TO
when available
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.
DAMAGES IN LIEU OF OR IN ADDITION TO
must be specifically pleaded
CA, 2020
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”.
DAMAGES IN LIEU OF OR IN ADDITION TO
abandonment right to SP
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.
LAD CLAUSE & SP
whether a bar
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.
SPECIFIC PERFORMANCE ON SPECIFIC CONTRACT
Building contract
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.
SPECIFIC PERFORMANCE ON SPECIFIC CONTRACT
contracts for sale of land
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.
