LAWS 3330 | TUTORIAL PRESENTATION WEEK 8

Specific Performance
Madihah binti Mohd Narawi (1914962) | Wan Nurin Amalia Wan Zulfikri (1919374)
Najla Alysha binti Noorulhadi (1916926) | Nurul Idayu Binti Abd Karim (1918616)
 Question 1

The court generally grants specific performance in the following

two circumstances:

(a) when there exists no standard for ascertaining actual damage.

(b) when money compensation does not provide adequate relief.
Specific Performance

An order from the court to direct a party in a

Definition contract to carry out his contractual obligation
or in other words, to enforce the contract.

Section 21 Specific Performance is equitable remedy at the

discretion of the Court
 Section 11(1) SRA
Contracts which may be Specifically Enforced
Cases in which specific performance enforceable

(b) when there is no standard to ascertain actual

Q1 (a)

damage caused by non-performance of the act

which was agreed to be done

(c) when pecuniary compensation for its non-

Q1 (b) performance would not provide adequate relief
Q1 (a)

Section 11(1)(b) SRA

(b) when there is no standard to ascertain

actual damage caused by non-performance of
the act which was agreed to be done
Illustration of Section 11(1)(b)

A agrees to buy, and B agrees to sell, a picture by a dead

painter and two rare China vases. A may compel B
specifically to perform this contract, for there is no
standard for ascertaining the actual damage which
would be caused by its non-performance.
Q1 (b)

Section 11(1)(c) SRA

(c) when pecuniary compensation for its non-

performance would not provide adequate relief
 Illustration of Section 11(1)(c)

a) A contracts with B to sell him a house for RM1,000. B is entitled to

decree directing A to convey the house to him, he paying the
purchase-money

Immovable property

b) In consideration of being released from certain obligations imposed on it by its Act of

incorporation, a railway company contracts with Z to make an archway through their railway to
connect lands of Z served by the railway, to construct a road between certain specified points,
to pay a certain annual sum towards the maintenance of this road, and also to construct a
siding and a wharf as specified in the contract. Z is entitled to have this contract
specifically enforced, for his interest in its performance cannot be adequately
compensated for by money; and the court may appoint a proper person to superintend the
construction of the archway, road, siding, and wharf.

Special interest
Illustration of Section 11(1)(c)

c) A contracts to sell, and B contracts to buy, a certain number of railway-shares

of a particular description. A refuses to complete the sale. B may compel A
specifically to perform this agreement, for the shares are limited in number
and not always to be had in the market, and their possession carries with it
the status of a shareholder, which cannot otherwise be procured.
Not easily available in the market

d) A contracts with B to paint a picture for B, who agrees to pay

therefor RM1,000. The picture is painted. B is entitled to have it
delivered to him on payment or tender of the RM1,000.

Special value
Issue relating to Section 11(1)(c) SRA

Whether damages for its non-performance would be

inadequate remedy for the court to grant specific
performance of the contract?
 Nutbrown v
Thornton (1805) 10
Ves 159 The plaintiff entered into a contract with
the defendant to purchase some machinery.
However, the defendant refused to deliver the
goods and thus, he breached the contract.
The plaintiff sought the specific
performance.

Held:
The court granted specific performance of the
contract to supply machinery as the damages
would be inadequate to compensate.
The plaintiff was not able to buy the
machines elsewhere as the defendant was the
only manufacturer of the type of machinery,

Not easily available in the market

Gan Realty Sdn Bhd The plaintiff applied to dissolve the ex parte
& Ors v Nicholas & injunction (a command to restrain, which is
granted after hearing only one party in matters
Ors [1969] 2 MLJ 110 of 'urgency')
The defendants were the directors of the bank
and they had conducted an agreement for the
plaintiff to acquire their shares in the bank.
However, later, the defendant refused to sell
the company shares to the plaintiff.
Plaintiff then claimed for specific performance
of an agreement for the sale of the shares.

Held:
Due to the unavailability of the shares of the
bank in the open market, damages is not an
adequate remedy for the plaintiff. Thus, Court
order the agreement to be specifically
enforced.
Not easily available in the market
 Presumption Relating to Contract
Dealing with Property

Section 11(2) SRA

Unless and until the contrary is proved,
the court shall presume that the breach of a contract to
transfer immovable property cannot be adequately
relieved by compensation in money, and that
the breach of a contract to transfer movable property can
be thus relieved.
 Loh Koon Moy v
The respondent had entered into an agreement
Zaibun [1978] 2 MLJ with the appellant to sell some land to the
29 appellant
Respondent refused to continue the contract on
the ground that there was an oral agreement
for damages.
Appellant sought specific performance as he
refused to accept the damage.

Held;
Specific performance was granted to the
appellant
as the respondent had not rebutted the
presumption
that breach of contract involving immovable
property cannot be adequately relieved by
monetary compensation.
Immovable property
Question 3 (a)

Febianto entered into a contract with one local F&B Company in

Puchong to serve as a night watchman. It was stipulated in the
terms of contract that Fabianto is to carry out his duty from 7pm to
7am daily and only entitled to apply for one day off, once a month.
After serving for some time, Febianto refused to work and tendered
his resignation letter. The company refused to accept his resignation
and decided to bring action for decree of specific performance.
ISSUE

Whether the F&B Company can seek a decree of

specific performance against Febianto to continue
working as stipulated in the contract.
General Principle of Specific Performance

Specific Performance is granted in the discretion of the

Section 21 Court and there are instances where it will not be
granted in cases listed in this section.

Specific Performance may be enforced in the discretion

Section 11 of the court in several cases and there is presumption
with regards to contract dealing with property.
Section 20(1)(b)
Reasons for the
Service / employment contract
contract not to be
will not be specifically enforced
enforced
Illustration s 20(1)(b)
A contracts to render personal 1. Involve hardship /
service to B;
inconvenience to
A contracts to employ B on
personal service; defendant
A, an author, contracts with B, a 2. Lack of mutual trust
publisher, to complete a literary
and confidence
work;
B cannot enforce specific 3. Constant supervision
performance of these contracts. is not possible
 Dayang Nurfaizah Bte Facts:
Awang Dowty v Bintang Defendant → interlocutory injunction to
Seni Sdn Bhd & Ors refrain Plaintiff from appointing
another person as her manager &
[2004] 2 MLJ 39
restrain from making public performance
without Defendant's consent.

Held:
Management agreement = contract to
render personal services.
If there is no cause of action, the
interlocutory injunction must be
dismissed.
Remedy was barred by s 20(1)(b) of
SRA 1950, Defendant have no cause of
action against the Plaintiff.
 APPLICATION

The contract entered by Febianto with the F&B Company is a contract of personal service
where Febianto render his service as a night watchman.
According to section 20(1)(b) of SRA 1950 and the illustration given, specific performance
cannot be obtained in a contract of personal service or employment.
This is also similar with the case of Dayang Nurfaizah where there is a fall out between the
parties and enforcing such contract of personal service can be detrimental because there is no
more mutual trust and confidence between the parties.
We can also presume that the continuance of the contract would cause hardship upon Febianto
because he would be working throughout the night every day with only one day off in a month.
 CONCLUSION

A decree of specific performance will not

be granted to the F&B Company because a
contract of personal service in general
cannot be specifically enforced.
Question 3 (b)
George Tan, a successful Malaysian businessman contracted to sell his
land, situated in Gelang, Singapore, to Zaki, for $350,000. The agreement
was made in Gelang Patah, Johor. Zaki paid the purchase price in full but
George Tan refused to execute the sale deed and showed his willingness
to refund the whole amount with interest to Zaki. Zaki was upset and
disappointed. Zaki decided to proceed with legal action and a suit has
been filed by Zaki in Johor Bahru to compel George Tan to specifically
perform his part of the contract.

Discuss.
 Whether Court in Johor has jurisdiction to direct
ISSUES
George Tan to execute the sale of his land situated
in Gelang, Singapore

Whether Zaki would be entitled to the relief

of the land
 1 The court of equity binding the conscience of
Remedy acts in
Remedy acts in a person. the court may exercise jurisdiction
over the person within the power of the court,
Personam
Personam even if the property is outside the
jurisdiction

Penn v Lord Baltimore [1558-1774] ALL ER Rep 99

An order of specific performance was granted to

the plaintiff who brought a boundary dispute case
to an English court, yet the land was in Maryland,
USA. The parties to the dispute were English and
both lived in England

Principle: Equity can make orders affecting

property outside its jurisdiction by making orders
against the person as long as the person was
within the jurisdiction
Remedy acts in
Personam Swiss Bank Corporation v Lloyds Bank
Ltd [1979] Ch 548

It upholds,

The courts of equity act ‘in personam’, allowing

the court to enforce contractual rights between
the parties notwithstanding the fact that the
land transaction is not recognised under the
Code
 APPLICATION

The land was situated in Gelang, Singapore however the agreement was made in Johor.
Following the principle of specific performance acted in personam, the Court in Johor would
still have jurisdiction to hear the case.
Under the maxim, the obligations to perform the contract would attached to the person or
parties to contract regardless the subject matter was within the jurisdiction or not

Therefore, Court in Johor has the rights to order George Tan to perform his part of the contract, to
transfer the land to Zaki as stated in the agreement
ISSUE 2

Whether Zaki would be entitled to the relief

of the land
 For cases where the damages would not be adequate remedy

2
Applicable where
damages would not be
adequate remedy
Section 11(1)(c) of Specific Relief Act 1950

Except as otherwise provided in this Chapter, the

specific performance of any contract may, in the
discretion of the court, be enforced--

(c) When the act agreed to be done is such that

pecuniary compensation for its non-performance would not
afford adequate relief
 Presumption with contract
dealing with property

Section 11 (2) of Specific Relief Act 1950

Unless and until the contrary is proved, the court

shall presume that the breach of a contract to
transfer immovable property cannot be adequately
relieved by compensation in money, and that the
breach of a contract to transfer movable property
can be thus relieved.
 Zaibun Sa bte Syed Ahmad v Loh Koon Moy & Anor

Immovable property
Property is cannot be adequately relieved
by monetary compensation

An agreement had been entered by the respondent and

the appellant on a purchase of the appellant's
land. The appellant then breach the agreement hence
the respondent brought action to the court,
claiming for specific performance over the land.
However In the agreement, the appellant orally
agreed to only pay RM5000 to the respondent upon
the breach of contract.

Held, the Privy Council epheld the decision of the

Federal Court, granted the specific performance to
the respondent
Tan Ah Chin & Sons Sdn Bhd v Ooi
Bee Tat & Anor [1993] 3 MLJ 633

Land is deemed to have its own special value of

loss, which may not be adequately compensated
by damages.

The High Court granted specific performance

and damages for the breach of joint venture
agreement for the sale and purchase of land
and the construction of dwelling houses
thereon
 Eagaivallinayagi Ammal V
Chin Min Hua [2020] 2 MLJ 771

Court upholds,

In the Breach of contract to transfer

immovable property, an award of damages
is not a sufficient remedy. Similarly,
this relief could not also be granted in
the executory contracts and where actual
losses could not be ascertained
 Movable property
Property is adequately relieved by
monetary compensation

Fothergill v Rowland
Facts: The defendant failed to supply the coal to
the plaintiff in the contract of sale and purchase.
The plaintiff then brought an action against the
defendant, claiming for specific performance.

Held,
The court refused specific performance due to the
fact that the contract of sale and purchase was
related to ordinary coal and the damages in this
case are ascertainable. Thus, the plaintiff are
only entitled to damages
Burden of Proof

Relies on the defendant

He needs to prove that it is adequate
to only compensate the plaintiff with
damages without granting the specific
performance
 APPLICATION

Following the law, the land is presumed to cannot be adequately relieved by

monetary compensation as it was categorised under immovable property
Burden of Proof relies on George Tan to prove otherwise
Assuming that George Tan failed to rebut the presumption, Zaki would be entitled to
the relief of the land
 CONCLUSION

Court in Johor should granted

the relief of the land to Zaki
Question 3 (c)
Z paid RM50,000,00 to Y as a deposit for a sale of an apartment situated at
Jalan Loke Yew, Cheras. The apartment is still under construction and is
expected to be ready in January 2017. Last week, Y informed Z that he has to
return the deposit together with an additional amount of RM1,000 to Z as
compensation for the short notice decision. Y is planning to re-schedule the
project due to various unexpected circumstances faced by his company. Y
foresee that he would not be able to complete the project as scheduled. Z
who is frustrated with the news, consults you on his rights.

Advise Z.
ISSUE

Whether Z can invoke specific performance against

Y for the breach of contract
What is specific performance?

Section 21 of SRA 1950 Caesar Lamare v Thomas

recognized specific Dixon [1873]
performance as an

An order for specific

equitable remedy in which
performance has the effect
the court has the discretion
of ordering a contracting
in granting it and will not be
party to do what he has
granted just because it is
undertaken to do in the
lawful to do so
contract.

When it is granted?

Section 11(1)(c) Illustration (a)

A contracts with B to sell
him a house for RM1,000. B is
entitled to decree directing
specific performance is granted A to convey the house to
when the act agreed to be done is him, paying the purchase
such that pecuniary compensation money.
for its non-performance would not
afford adequate relief
 Breach of contract involving immovable property

Section 11(2) of Specific Relief Act 1950 Sekemas Sdn Bhd v Lian Seng
Co. Sdn Bhd [1989] 2 MLJ 155
The law presumes that the breach of contracts of immovable
property cannot be adequately relieved by monetary
compensation but as for the transfer of movable property, it is Plaintiff agreed to sell land to the
y
propert
relieved Immovable
land an
d all defendant who then failed to pay the last
o
refers t part
things t
h a t fo rm
as the
installment on the agreed date.
w e ll
of it as
rights,
in t e r e sts, and The plaintiff claimed for specific
s r e la t e d to the
benefi t
owne r sh ip of a re
al
performance.
estate. The Supreme Court held that Section 11(2)
Zaibun SA Syed Ahmad v Loh Koon Moy [1982] of SRA will prevail in a case involving
Specific performance against the appellant was granted contracts dealing with the sale and
despite there being an oral agreement on damages for the purchase of property and an order for
breach of contract on the sale of land. The Privy Council specific performance is appropriate in this
emphasized that it was the discretion of the court to grant case.
the specific performance and the Federal Court was correct
in doing so.
 Yong Kon Fatt & Anor v Hock

Burden of Proof Seng Construction Sdn Bhd &

Anor[2000] 5 MLJ 551

A sale and purchase agreement of a double-storey

shophouse was entered where the first defendant
The defendant needs to prove that agreed to sell it to the first plaintiff.
monetary compensation is adequate to The first plaintiff then assigned his rights, title, and
compensate the plaintiff for the loss interest in the property to the second plaintiff.
When the property was completed, the first defendant
suffered therefore no need for the
refused to deliver vacant possession of the property
order of specific performance to the plaintiffs.

Held:
Specific performance to vacant the possession of the
said property is granted as well as damages as the
presumption is insufficiently rebutted by the
defendant.
 Lim Cheng Im v Jagdish
Kaur a/p Gurdial Singh
[2016] MLJU 1204

Held:
High Court dismissed the attempt to the
In 2004, plaintiff and defendant entered into a
defence of hardship by the defendant and
contract of sale of the piece of land owned by the
grant specific performance as
defendant for the consideration of RM107,000.00
any appreciation of the land’s price cannot
Defendant then entered a contract with a third party
be claimed as the defendant has agreed to
in 2013 to sell the same land as he argued the
sell the land for the agreed price since 2004
agreement with the plaintiff had lapsed therefore he
as section 21(2)(b) mentioned, the plaintiff
had the right to sell it to someone else.
shall not suffer more than the defendant
Plaintiff claimed for an order of specific performance
and here the plaintiff's right to the land
The defendant did not invoke the defence of
appreciation has been deprived if the
hardship nor submit any evidence that the plaintiff
contract is not performed
could be adequately compensated with monies
no defence has been invoked by the
defendant
Application Conclusion
As the case involved a breach of contract involving
immovable property, S11(2) of SRA 1950 applies where
the law presumes monetary compensation is
inadequate to remedy Z for the apartment that he paid
Z has a strong case to apply for specific performance
for.
against Y for the breach of sale and purchase
The burden of proof is laid on Y to rebut the
contract of an apartment as the law mentioned that
presumption by raising defenses that are available monetary compensation is inadequate to remedy
under the law of contract. the breach of contract on immovable property.
If Y is about to raise the defence of hardship as the Therefore, Z can invoke the order of specific
failure for the construction is due to enexpected performance in court against Y.
circumstances, it must be ensured that Z is not to suffer
more than him by virtue of subsection (2)(b) of S21 SRA
1950 and the cases mentioned.
THANK YOU!