Remedies III- Specific Performance

1)Intro
 SP is an equitable remedy which compels a party to execute a contract according to the precise terms
greed upon so that justice will be down between parties
 Can only be granted by the court to exercise equity powers
 SP is applied in breach of contract where monetary damages are inadequate
 Will not be granted where damages for the breach of contract for the sale of ordinary personal
property
 SP will demand the defendant to fulfil his obligations and perform the term in the contract
 Things necessary to invoke the remedy= I)contract must be valid and enforceable, ii) must be made
between competent parties, iii) unobjectionable in nature and circumstances iv) terms must be
precisely certain to enable the court to make the order an effect exact performance

Section 11 of SRA
 S.11(1)(b) = no standard of ascertaining damage
= e.g the sale of rare and unique items
=case (1) Gan Reality Sdn Bhd & Ors v Nicholas & Ors
- In this case, the court granted the plaintiff SP of a sale and purchase of shares
Agreement because they were unavailable in the open market. The court
could not ascertain the actual loss due the non-performance by the defendant
 S.11 (1) (c)= pecuniary compensation inadequate relief
= SP will be granted if monetary compensation is inadequate
= Case (1) Lim Sin Oo & Ors v Cheah Tjeng Siong
- In this case, the plaintiff agreed to sell his landed property to the defendant.
Pursuant to the agreement to sell the property, the plaintiff terminated 3
existing tenancies in the building and paid compensation for the tenants. He
also terminated his own business at the said premise. The court grant SP for
the above reason
= Case (2) Seet Soh Ngoh v Venkateswara Sdn Bhd
- In this case, the court held that where a housing developer breached the
contract with the purchaser, damages would be an inadequate remedy
because of the appreciation in the value of the land and cost of construction.
Thus the decree of SP was granted for delivery of the house in the favour of
the plaintiff
 S.11(2) = money cannot provide inadequate relief for immovable property
= so SP should be granted instead
= case (1) Zaibun Sa bte Syed Ahmad v Loh Koon Moy & Anor
- In this case, the respondent (purchaser) applied for SP to direct the appellant
(vendor) to transfer the land to him as agreed under sale and purchase
agreement. There was an oral agreement that the vendor should pay RM 5000
to the purchaser if the vendor breached the agreement.
- The court held that the existence of this agreement showed that money was
an adequate relief. The court refused to grant SP and grant damages to the
respondent
= case (2) Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd
- In this case, s.11(2) was significant to a purchaser who failed to pay the
balance purchase price for the purchase property. The vendor sued for SP that
the purchaser complete the purchase and pay the balance of the contract
price agreed. The courted granted the order for SP
= s.11(2) only applicable to breach to the transfer immovable property
- Since land has unique value
 Specific performance of part of contract
= s.16 of SRA- SP for part of contract is only allowed in any of the cases coming under s.13,14,15
= s.15 of SRA- provides for divisible contract ( the court may direct SP on the part that can be
specifically performed)
= s.13 & s.14- governs indivisible contract, s.13 (small) & s.14 (large)(cannot obtain SP)
= case City Investment Sdn Bhd v Koperasi Serbaguna Cuepas Tanggungam Bhd
- In this case, there were 2 agreements for the sale of land and the construction
of number of houses in the said land. In both agreements, the sale price of
land and the cost of the construction were separately stated. The appellant
breached the contract and had only completed and transferred one terrace
 house under the 1st agreement and a semi detached house under the 2nd
agreement. The court grant SP for the transfer of remaining lots and damages
for the construction costs. The court applied s.15 since the agreement are
divisible contract as there are separate prices for the sale of the land and
construction of the houses.
= s.12 -applicable to situation of partial performance,
-contract may still be performed despite a portion of it may seize to exist
- case Wong Siew Sdn Bhd v Anvest Corporation Sdn Bhd
a. In this case, the sale and purchase agreement stated that the land is
100934 sq.feet. Frustration occurred when part of the land estimated
13131 sq.feet was acquired by the government. By applying s.12 of SRA,
the court held that the frustration of contract only affected a small portion
of the said land thus the remaining part of the land was still capable of SP
 Power to Award compensation
= where SP is insufficient, the court may award damages in addition to SP
= s.18(1)- award damages in lieu when the court didn’t award SP
= The plaintiff must apply SP first, then the compensation is in lieu of SP
= case 1 Lee Sau Kong v Leow Cheng Chiang
- In this case, the court refused to grant an order of SP which would involve
constant supervision by the court. Thus, the court awarded damages in lieu of
SP based on the difference between the market price and the contract price of
the scarp iron
= s.18(3)- provides for compensation in addition to SP