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GP Contract > Chapter 8 - Discharge by Performance > Flashcards

Chapter 8 - Discharge by Performance Flashcards

1
Q

DISCHARGE BY PERFORMANCE

Overview

A

1) Time for performance

2) Manner of performance

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2
Q

TIME FOR PERFORMANCE

Overview

A

1) General rule
2) Time is of the essence
3) Time is not of the essence
4) Time in conditional contracts

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3
Q

TIME FOR PERFORMANCE

General rule

A

1) S.47:
- within reasonable time.
2) Damansara Realty Bhd v Bungsar Hill Holdings Sdn Bhd:

  • when the time is at large, duty is to commence work within reasonable time;
  • failure to take necessary steps to commence work may amount to breach, i.e. anticipatory breach.
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4
Q

TIME IS OF THE ESSENCE

Overview

A

1) The law & scope
2) When is time of the essence - general rule
3) Existence of LAD clause
4) Waiver
5) Acceptance of performance other than time specified
6) Failure to perform

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5
Q

TIME IS OF THE ESSENCE

The law & scope

A

1) The law:
- S.56
2) Scope - Sim Chio Huat v Wong Ted Fui:

  • failure to perform at specified time = party may terminate;
  • no termination = contract subsisting, time ceases to be of the essence.
  • cannot claim damages for late performance unless there is specific clause allowing it.
  • can make time of the essence again, but need to send notice of new date of completion.
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6
Q

TIME IS OF THE ESSENCE

When is time of the essence - general rule

A

Tan Ah Kian v Haji Hasnan:

  • EXPRESSLY stipulated in the contract; or
  • REASONABLE NOTICE to make time of the essence; or
  • NATURE of the contract making it time of the essence.
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7
Q

TIME IS OF THE ESSENCE

When is time of the essence - existence of LAD clause

A

1) BTS Sdn Bhd v M-Concept Sdn Bhd (FC):
- when there is LAD clause, it points to time not being of the essence.
2) cf. Chye Fook v Teh Teng Seng Realty Sdn Bhd:

  • entitlement to LAD does not take away the right to rescind for failure to complete within stipulated time;
  • time is still of the essence if it is provided as such.
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8
Q

TIME IS OF THE ESSENCE

Waiver - overview

A

1) Effect of waiver
2) Silence
3) Continued negotiations
4) Extension of time
5) Extension of time + continued negotiations

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9
Q

WAIVER

Effect of waiver

A

Sim Chio Fuat v Wong Ted Fui:

  • innocent party is deemed to treat the contract as subsisting;
  • ctt exists but time is at large;
  • cannot claim for liquidated damages unless there is provision for it;
  • must give notice if wants to make time of the essence again.
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10
Q

WAIVER

Silence

A

Araprop Development Sdn Bhd v Leong Chee Kong & Anor:

  • mere silence per se cannot amount to waiver;
  • there must be additional factor which can be interpreted or inferred as waiver.
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11
Q

WAIVER

Continued negotiations

A

Wong Kup Sing v Jeram Rubber Estate Ltd:

  • Continued negotiations & allowing time to pass amounts to waiver.
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12
Q

WAIVER

Extension of time

A

Siah Kwee Mow v Kulim Rubber Plantation:

  • Mere extension of time stipulated would not amount to waiver.
  • extension of time is a waiver for substituting the original time, not waiver for time of the essence.
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13
Q

WAIVER

Extension of time & continued negotiations

A

Wong Kup Sing v Jeram Rubber Estate Ltd:

  • multiple extensions & continued negotiations amount to waiver.
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14
Q

ACCEPTANCE OF PERFORMANCE OTHER THAN TIME SPECIFIED

Overview

A

1) the law & scope

2) housing development

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15
Q

ACCEPTANCE OF PERFORMANCE OTHER THAN TIME SPECIFIED

the law & scope

A

1) The law:
- S.56(3)
2) Scope - Yeo Kim Pong Realty Ltd v Ng Kim Pong:

  • a party who grants eot to the defaulting party has accepted the performance at other time than the time agreed;
  • if he intends to sue for damages for late performance, he must give notice to the defaulting party.
  • if no notice is given, he may not be able to recover such compensation.
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16
Q

ACCEPTANCE OF PERFORMANCE OTHER THAN TIME SPECIFIED

housing development

A

Sentul Raya Sdn Bhd v Hariram Jayaram:

  • S.56(3) does not apply to housing development contract;
  • Under HDA, purchaser is able to claim for LAD for late delivery once completion dates have passed.
17
Q

FAILURE TO PERFORM

Overview

A

1) Effect of failure to perform
2) Options to rescind
3) Rights to damages

18
Q

FAILURE TO PERFORM

Effect of failure to perform

A

Linggi Plantations Ltd v Jagatheesan:

  • amounts to breach;
  • terminate the contract + sue for breach + restitution S.65; OR
  • affirm the contract + sue for breach.
19
Q

FAILURE TO PERFORM

Options to rescind

A

Loke Yuen Cheng & Anor v Vintex Sdn Bhd:

1) Option 1:

  • rescind under S.56(1);
  • rescission ab initio;
  • remedies: restitution S.65 + 66 ONLY
  • cf. with Muralidhar below.

2) Option:

  • action for breach under S.40;
  • remedies: damages S.76, restitution S.65 +66
20
Q

FAILURE TO PERFORM

Rights to damages

A

Muralidhar Chatterjee v International Film Company Ltd:

  • damages are claimable despite termination taken under S.56(1) or S.40.
  • S.56(1) is also voidable ctt, so S.65 + 66 apply.
21
Q

TIME IS NOT OF THE ESSENCE

Overview

A

1) The law
2) When
2) Right to rescind
3) Notice to make time is of the essence
4) Relief for SP

22
Q

TIME IS NOT OF THE ESSENCE

The law

A

S.56(2)

23
Q

TIME IS NOT OF THE ESSENCE

When

A

KL Landmark Sdn Bhd v Standard Chartered Bank:

  • NO EXPRESSION that time is of the essence;
  • NO NOTICE is given to make time of the essence;
  • NATURE OF THE CONTRACT does not make time is of the essence.
24
Q

TIME IS NOT OF THE ESSENCE

Right to rescind

A

Ganam Rajamany v Somoo Sinniah:

  • There is no right to rescind if the time is not of the essence.
25
Q

TIME IS NOT OF THE ESSENCE

Notice to make time of the essence

A

Yeo Liong Ho v Loh Choon Hooi:

  • No breach of on part of notice giver;
  • Notice giver is ready, willing & able to perform & complete;
  • Notice receiver must be guilty of unreasonable delay well before notice to complete is served;
  • Notice must limit a reasonable period for completion.
26
Q

TIME IS NOT OF THE ESSENCE

Relief for SP

A

Ganam Rajamany v Somoo Sinnniah:

  • Innocent party must show that he has performed or at all times ready, willing & able to perform;
  • If innocent party is not ready, SP will not be granted.
27
Q

TIME IN CONDITIONAL CONTRACTS

How to interpret

A

Aberfoyle Plantations Ltd v Khaw Bian Cheng:

  • fixes a date for completion: condition must be fulfilled by that date;
  • fixes no date of completion: condition must be fulfilled within reasonable time;
  • fixes date for fulling condition: condition must be fulfilled strictly, time cannot be extended.
  • when condition is not fulfilled, the agreement will be held unenforceable.
28
Q

MANNER OF PERFORMANCE

Overview

A

1) Manner of performance where time is stipulated
2) Refusal to accept performance
3) Performance by 3rd party
4) Partial performance
5) Performance of reciprocal promise

29
Q

MANNER OF PERFORMANCE

Who to perform

A

1) The law:

S.41

2) Refusal to accept performance - MM Ally & Co v Chellamah:

  • a promisor cannot be held in breach if promisee refuse to accept his performance;
  • A man cannot by his own deliberate fault, create a artificial fault in another.
30
Q

MANNER OF PERFORMANCE

When to perform

A

1) The law:
- S.48
2) When vendor does not have office hours - Lim Yoh v Astana Strategi (M) Sdn Bhd:
- When the vendor has no office hours or office does not open, S.48 does not apply.

31
Q

MANNER OF PERFORMANCE

Performance by third party - the law

A

S.42

32
Q

MANNER OF PERFORMANCE

Performance by third party -part-performance by 3rd party

A

1) Hj. Nik Ishak v Nik Zainab Nik Jaafar:

  • partial-performance is sufficient for S.42 to apply;
  • upon acceptance of the performance albeit partly done, promisee cannot enforce the promise against the promisor.

2) cf. Scott & English (Malaysia) v Foo Thor Lombong Bijih Sdn Bhd:
- there must be actual & full performance by 3rd party before S.42 can apply & promisor can be released from his obligation.
3) cf. Wasco Lindung Sdn Bhd v Lustre Minerals Sdn Bhd (2014)

  • there must be actual performance by 3rd party for S.42 to apply;
  • if there is a breach by 3rd party, S.42 will not apply;
  • promisee is able to hold promisor liable & enforce the promise against him.
  • this is so unless the promisee will be unjustly enriched.
33
Q

PARTIAL PERFORMANCE

Overview

A

1) General rule & exceptions
2) Factors for substantial performance
3) Relief - quantum meruit claim at common law
4) Relief - quantum meruit claim under S.71

34
Q

PARTIAL PERFORMANCE

General rule & exceptions

A

1) General rule - Bolton v Mahadeva:
- partial-performance is non-performance.
2) Exception 1 - divisible contract - Ming & Co v Leong Ping Ching:

  • Divisible contract = Contract where payments are made from time to time.
  • Entire contract = failure to complete work will disentitle him from making any claims.

3) Exception 2 - substantial performance - KP Kunchi Raman v Goh Brothers Sdn Bhd:

  • A promisor who has substantially performed his side of contract may sue for the agreed sum;
  • He however remains liable for his partial failure to fulfil his contractual obligations.
35
Q

PARTIAL PERFORMANCE

Factors for substantial performance

A

Sapiahtoon v Lim Siew Hui:

  • nature of defects / non-performance & costs of remedying defects;
  • proportion between the costs of rectifying such defects & contract price;
  • Extent to which the work has been completed.
36
Q

PARTIAL PERFORMANCE

Relief - quantum meruit claim under Contract Act

A

1) The law:

S.71

2) Conditions - Siow Wong Fatt v Susur Rotan Mining Ltd & Anor:

  • The work done must be lawful;
  • The work done must be for another person;
  • The work must not be intended to be done gratuitously;
  • The work done must be such that the other person enjoys the benefit of the act.
37
Q

PARTIAL PERFORMANCE

Relief - quantum meruit claim at common law

A

1) Option - Sumpter v Hedges:
- D as recipient of benefit whom to pay the claim must be given the option to accept or reject the benefit, in order for P to claim the benefit he has given.
2) Not at fault - Lau Kee Ko v Paw Ngi Siu:
- P must not be at fault or breach.
3) Contract provision - Sykt Binaan Utara Jaya v Koperasi Sungai Glugor Bhd:
- if the ctt provide of quantum meruit claim, P can claim for it even though he is at breach.
4) Reasonable price - Haji Hasnan v Tan Ah Kian:
- the claim is only for reasonable price for work done.

38
Q

PERFORMANCE OF RECIPROCAL PROMISE

The law & scope

A

1) The law:
- S.52, 53, 54, 55
2) Code Focus Sdn Bhd v Tan Chee Hoe & Sons Sdn Bhd:

  • S.52: promisor need not to perform unless the promise is ready & willing to perform his promise;
  • S.53: order to perform;
  • S.54: where one party prevents the other party to perform.

GP Contract (10 decks)

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