lOMoARcPSD|3734110

Specific-performance

Equity and trust (Multimedia University)

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Specific performance

Definition

 When a court directs a party to perform the obligation imposed on it. Usually in the context of a
contract.
 The parties’ rights are settled and defined in the manner intended
 Hasham v Zenab court can still give orders for SP even if time of performance of contract has yet to
arrive.

General principle

1. Discretionary remedy
o Decreed by a court solely at its discretion and not as a matter of right
o Not given at the whim or pleasure of the judge but upon sound and reasonable discretion and
reasoning.
o S21 of SRAThe jurisdiction to decree specific performance is discretionary, and the court is
not bound to grant any such relief merely because it is lawful to do so; but the discretion of the
judge is not arbitrary but sound and reasonable, guided by judicial principles and capable of
correction by a court of appeal.
o Ganam d/o Rajamany v Somoo s/o Sinniah
 It is under the discretionary of the courts to grant specific performance; and all of the
circumstances of case, the conduct of parties and their respective interest must be taken
into consideration
o Lamare v Dixon
 The defendant wished to lease some cellars. He went to view cellars owned by the
claimant but saw that they were damp.
 The claimant promised that he would make the cellars dry before the lease commenced
and the defendant agreed orally to take the lease.
 The claimant did not keep his promise and the defendant refused to complete the lease.
 The claimant bought an action for breach of contract seeking specific performance of the
lease agreement.
 Specific performance was refused due to the claimant not keeping his promise in making
the cellars dry.
o Exercise of discretion to withhold SP mainly in cases involving delay, hardship, mistake or
conduct of the plaintiff
o S.21(2)(a)where the circumstances under which the contract is made are such as to give the
plaintiff an unfair advantage over the defendant, though there may be no fraud or
misrepresentation on the plaintiff’s part; and
o S21(2)(b) where the performance of a contract would involve some hardship on the defendant
which he did not foresee, whereas its non-performance would involve no such hardship on the
plaintiff.
o Wong Kup Sing v Jeram Rubber Estate Ltd
 High Court held that the defendants had failed to give reasonable notice to the plaintiff
that it intended to terminate the contract after having agreed to an extension of time for
performance in a contract for the purchase of a rubber estate.

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o Yeo Long Seng v Lucky Park (Pte) Ltd

 Court refused to grant specific performance as damages could provide an adequate
remedy.
o General rule regarding the defense of hardship
 Hardship is not a strong defense
 Financial hardship alone is not sufficient for a successful defense
 Entering bad bargain is not hardship
 Venkatachalom Chettiar V Arunasalam Chettiar
 The court held that a bargain that turned out worse than expected cannot
constitute hardship
 Hardship amounting to injustice and unreasonable consequences is a sound defence
 Suttor v Gundowda
 Contract for sale and purchase of pastoral property subject to consent of
Treasurer by a certain date which came and went
 It was also a situation where there was a complex formula to determine the
vendor’s tax liability which was to be subtracted and he did not properly
understand it.
 So he ended up with way less than what he expected
 By the time the consent of the treasurer had passed, he had not yet understood
the problem
 SO the vendor took no steps to terminate and nor did the purchaser.
 When the Vendor discovered he had made a bad bargain he sought to bring
the contract to an end but by then the Treasurer’s consent had arrived and the
contract became unconditional.
 This was actually an action by the purchaser for specific performance that the
Vendor no longer wanted to perform.
 Interesting discussion in the case where the court will grant an action for
specific performance in a case where it will cause hardship for one of the
parties.
 Patel v Ali
 The vendor and her husband were co-owners of the house they contracted to
sell in 1979.
 The husband's bankruptcy caused delay in completion. After the contract the
vendor got bone cancer, had a leg amputated and later gave birth to her second
and third children.
 The purchaser obtained specific performance, against which the vendor
appealed on grounds of hardship. She spoke little English and relied on
friends and relatives for help, hence it would be hardship to leave the house
and move away.
 It was held that the court could in a proper case refuse specific performance
on the grounds of hardship subsequent to the contract, even if not caused by
the plaintiff and not related to the subject matter. On the facts, there would be
hardship amounting to injustice, therefore damages were awarded.
 Tamplin v James

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 Plaintiff selling some property, the buyer mistakenly though he was

purchasing additional land with tenants. He does not want to perform the
contract, plaintiff seeks specific performance, which is denied int this case,
but on the matter the following is said about allowing specific performance
when a mistake has been made
 Hope v Walter
 The vendor can ‘thrust the property down the purchaser’s throat’.
 Thus the vendor is able to rid themselves of the property and obviate the need
to seek damages
o Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd
 The app had failed to pay the last installment even it was given time to pay and the
amount even were reduced to $4,500,000. When this was not done the Resp sued and
applied for SP. The SC noted that SP was discretionary remedy and made reference to
S.11(2), 20(1)(a) and 21(2)(b) and dismissed the appeal
o Haji Osman b Abu Bakar v Saiyed Noor b Saiyed Mohamed
 X had executed the transfer of land; the transfer & document of title were handed over
the purchaser. Before transfer was presented to the registration, X died & the registration
was refused under s.8(ii) of Land Code. Claim for SP was refused. Court claimed that the
death of proprietor does not rendered the contract to be void. The legal representative
may take reasonable steps on behalf of deceased and is subjected to the terms of contract.
o Johnson v Agnew
 if an order for specific relief became impossible to enforce, the defendant had the right to
ask the court to discharge the order and terminate the contract
o Nicholas v Ingram
 in an action for SP of a contract for the sale of land, hardship on the part of the defendant
may operate as a defence. But the hardship must have existed at the time of the contract.
o S.21 (3)  a case in which the court may properly exercise a discretion to decree specific
performance is where the plaintiff has done substantial acts or suffered loss in consequence of a
contract capable of specific performance
o “He who comes into equity must come with clean hands.”
 Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
 Conduct of the plaintiff is also key in determining the award of SP. Gross breach
of personal faith and the use of threat of non-performance of contract as blackmail
will result in failure in an application for SP.
 Fraud is a strong ground in denying an application for SP
 Walters v Morgan
 The defendant agreed to grant the plaintiff a mining lease over land he had
just bought. Specific performance was refused as the plaintiff had produced a
draft lease and induced the defendant to sign the agreement in ignorance of
the value of the property. The plaintiff had hurried the defendant into signing
the lease before he knew the value of the property.
 Jericho v Guglieimin
 Poor grounds for a claim for SP if the applicant has taken advantage of the
weakness or the like of the defendant, e.g. drunkenness, lack of awareness of
one’s right, illiteracy, etc.

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2. It is a remedy ‘in personam’

o An order for SP is made out to an individual defendant.
o If the defendant is within the jurisdiction of the court and can be compelled personally to carry
out his obligation, the court may order him to do so even though the subject matter of the
contract is outside the jurisdiction of the court.
o Penn v Lord Baltimore
 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, in the USA.
 The parties to the dispute were English and both lived in England.
 Equity can make orders affecting property outside its jurisdiction by making orders
against the person of the defendant in the jurisdiction.
3. Damages not adequate remedy
o Beswick v Beswick
 PB was in poor health and agreed with the defendant, his nephew, that he would transfer
the trade and good will of his coal business to him on the basis that the nephew employed
him as a consultant for the rest of his life and paid him for this. The nephew also agreed
to pay PBs wife after PB died for the rest of her life. She was not a party to the
agreement. Upon the death of PB, the nephew paid PB’s wife once but then not again.
PBs widow brought an action as administrator of PB’s estate and also in her personal
capacity claiming for specific performance.
 The court granted the widow an order of specific performance for the payment owed by
PB’s nephew as an administrator to her husband’s estate.
 If remedy adequate, equity won’t step in.
o Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
 SP applicable in cases where loss would be difficult to quantify
o Yeo Long Seng v Lucky Park (Pte) Ltd
 Court refused to grant SP as damages could provide an adequate remedy.
o Legh v Lillie
 SP will not be available if the parties have agreed in the contract that a specific sum of
money is to be paid as an alternative to performing a contract.
o Gan Realty Sdn Bhd v Nicholas
 Defendant refused to sell shares of company.
 Plaintiff claimed for specific performance of the agreement and a permanent injunction.
 The court held that where the shares of the bank were not available in the open market,
the court could therefore order specific performance of an agreement for the sale of the
shares
o H.A. Securities Sdn. Bhd. v. Ng Kong Yeam
 Defendant refused to sell shares of company. Plaintiff claimed for specific performance
of the agreement. An order for specific performance was not granted, on the grounds,
inter alia, that the shares contracted for were freely available in the open market, and that
damages would be an adequate remedy.

4. Damage may be awarded in substitution for or in addition to specific performance

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o S18(1)Any person suing for the specific performance of a contract may also ask for
compensation for its breach, either in addition to, or in substitution for, its performance.
o S18(2)  If in any such suit the court decides that specific performance ought not to be granted,
but that there is a contract between the parties which has been broken by the defendant and that
the plaintiff is entitled to compensation for that breach, it shall award him compensation
accordingly.
o S.19A contract, otherwise proper to be specifically enforced, may be so enforced, though a
sum be named in it as the amount to be paid in case of its breach, and the party in default is
willing to pay the same.
o Ibrahim bin Saidin v Hitam bin Ali
 existence of damages as compensation does not prohibit the party from applying to the
court for specific performance
o s13Where a party to a contract is unable to perform the whole of his part of it, but the part
which must be left unperformed bears only a small proportion to the whole in value, and admits
of compensation in money, the court may, at the suit of either party, direct the specific
performance of so much of the contract as can be performed, and award compensation in money
for the deficiency.
o S. 14Where a party to a contract is unable to perform the whole of his part of it, and the part
which must be left unperformed forms a considerable portion of the whole, or does not admit of
compensation in money, he is not entitled to obtain a decree for specific performance. But the
court may, at the suit of the other party, direct the party in default to perform specifically so
much of his part of the contract as he can perform, provided that the plaintiff relinquishes all
claim to further performance, and all right to compensation either for the deficiency, or for the
loss or damage sustained by him through the default of the defendant.

5. Specific performance unaffected by waiver

o Plenitude Holding v Tan Sri Khoo Teck Puat
 Rumah Nanas Estate Sdn Bhd, the vendor agreed to sell to the plaintiffs, Plenitude
Holdings Sdn Bhd a piece of estate land. The land was purchased for the purpose of
development and the vendor was aware of this fact.
 The first defendant promised to obtain a loan for the plaintiffs and gave an undertaking
that in the event that he was unable to do so, the defendants would join the plaintiffs in a
joint venture to develop the land.
 The purchasers paid a deposit, but failed to pay the balance sum within the stipulated
period. The vendor then terminated the agreement and forfeited the deposit.
 The trial judge came to the conclusion that the termination of the agreement by the
vendor was not valid and ordered specific performance of the agreement for the sale
6. Only positive contracts may be specifically performed
o SP applicable for the enforcement of positive contractual enforcement of positive contractual
obligations.
o Obligation binding to defendant
 Spiro v Lintern

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 Litern said nothing when his wife (who had no authority to do so) entered into a
contract or the sale of Litern’s house, and, as a result, the buyers incurred various
expenses in contemplation to completion of the sale-
 Litern’s silence amounted to a representation that his wife had authority to sell the
house
 Worboys v Carter
 Carter (P) owned the lease on Lower Ledge Farm. His business was in trouble and
the farm became run down.
 Clark(A) offered help and advised selling the farm lease but Carter objected the
idea
 In the event, Clark persuaded him to sign a document which did no more than
appoint Clark as his agent.
 Clark mistakenly thought that this gave him authority to sell the farm and he went
ahead with the sale to Worboys.
 Worboys then requested of Cater several occasions a date by which Carter might
vacate the farm but carter would not give it.
 Worboys measure up Lower Ledge Farm in Carter’s presence and to the
knowledge of Carter, Worboys sold his own farm on the expectation of moving to
Lower Ledge Farm.
 Carter confined his objections to the sale to his agent Clark and Worboys sued for
SP
 Held that Clark had no actual or apparent authority to sell the property but the
Carter’s conduct in the presence of Worboys amounted a representation that he
approved of the sale.
 Carter was estopped from denying the contract and SP granted
o Sky Petroleum Ltd v V.I.P. Petroleum Ltd
 Injunction can be obtained on an interlocutory basis, while SP cannot.
7. Considerations of “hardship” and expiry of “limitation period” may not necessarily defeat SP
o RM. Venkatachalam Chettiar v N.K.R. Arunasalam Chettiar

8. SP dependant on an option is unaffected if the option is not exercised strictly in the prescribed manner
o Kau Nia Enterprise (Pte) Ltd v Teck Wah Corporation (Pte) Ltd
 Specific performance dependant on an option is unaffected if the option is not exercise
strictly in the prescribe manner
9. SP may be claimed and granted even before the time of performance has arrived
o SP may in some circumstances be obtained before the time for performance arriving
o Marks v Lilley
 Claimant commenced an action for the SP of a contract for sale of land after contractual
completion date but without having first served notice making time of the essence of the
contract.
 It was held that the action not premature , as the equitable right to SP, based on the
defendant’s equitable duty to perform his contract, had already accrued
o Hasham v Zenab
 SP of a contract for the sale of land was granted before the contractual completion date
where the defendant was guilty of anticipatory breach of contract.

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o Courts do not normally interfere before the time for performance, and may penalise the claimant
in costs.

Specific Performance available

 S11SP is available in the following circumstances

1. Performance of an Act
 S11(1)(a) the specific performance of any contract may, in the discretion of the court, be
enforced when the act agreed to be done is in the performance, wholly or partly, of a trust
 Wood v Rowcliffe
 specific delivery of a chattel has been ordered against the person in a fiduciary
relationship eve if the applicant may receive satisfactory monetary compensation
2. No Standard to Ascertain Actual Damage
 S.11(b) The specific performance of any contract may, in the discretion of the court, be
enforced when there exists no standard for ascertaining the actual damage caused by the non-
performance of the act agreed to be done
 Uniting Church in Australia Property Trust (NSW) v Immer (No 145) Pty Ltd
 Substantiated by common law that specific performance may be granted when
damages are difficult to quantify.
3. Pecuniary compensation not adequate relief
 S11(1)(c)the specific performance of any contract may, in the discretion of the court, be
enforced when the act agreed to be done is such that pecuniary compensation for its non-
performance would not afford adequate relief
 Perbadanan Setiausaha Kerajaan Selangor v Metroway Sdn Bhd
 SP not normally granted where damages amount to be adequate remedy
 Puncak Niaga Holdings Sdn Bhd v NS Water Sdn Bhd
 SP not normally granted where damages amount to be adequate remedy
 Adderley v Dixon
 No SP where damages is complete remedy.
 Beswick v Beswick
 No SP where damages provides justice
 Cooperative Insurance Society Ltd v Aryll Stores (Holdings) Ltd
 Whether damages is adequate is upon the consideration of judges and depends on the
kinds of contract.
 General rules on the matter revolve around the following types of contracts:
-Contracts for disposal of interests in land
-Contracts for sale of goods
-Contracts for disposal of shares
-Contracts to lend money
-Contracts for personal services
 Contracts for disposal of interests in land
o S.11(2) 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.
o Adderley v Dixon
 land might have a peculiar and special value

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o Uniting Church in Australia Property Trust (NSW) v Immer (No 145)

 SP granted for airspace, difficulty in assessing damages.
o
 Contracts for sale of goods
o Generally no SP where suitable substitutes available, therefore damages is adequate and
sufficient
 Fothergill v Rowland
 The plaintiffs went into a contract with the defendants for the exclusive supply of
coal obtained from a seam in the defendant’s mine for a period of five years. The
plaintiffs were entitled to that exclusivity as the plaintiffs have advanced money
to help the defendant extend his coal mine operations. The defendant however,
breached the contract by subsequently selling the coal supply to another purchaser
at a higher rate.
 Court refused the decree of specific performance. Besides the fact that the
contract of sale and purchase was related to ordinary coal, the court also refused
specific performance on the basis that the damages in this particular case are
ascertainable. Therefore, the plaintiffs are only entitled to damages constituting to
the market price for the coal that the defendant has failed to supply to them as
provided in the contract
o Exceptionplaintiff cannot secure similar or suitable replacement. Applicable to objects of rarity
or beauty, for example
 Eicobina (M) Sdn Bhd v Mensa Mercantile (Far East) Pte Ltd
 Courts have stated that if the substitute goods are available in the market, then
specific performance will not be granted and there is no reason why damages is
not an adequate remedy in such circumstances
 Cohen v Roche
 In this case, the plaintiff owned a furniture shop and entered an agreement to
purchase a quantity of Hepplewhite chairs to be sold in his shop.
 The defendant was in breach of contract because he refused and failed to deliver
the chairs.
 Plaintiff then sued for breach of contract and sought for specific performance for
delivery of the chairs.
 The court held that specific performance could not be granted as the chairs were
considered as an ordinary article of commerce and held no special value or
whatsoever. The claimant could thus have purchased the chairs elsewhere.
 Therefore, the plaintiff would be adequately compensated with an award of
damages.
 Contracts for disposal of shares
o S.11(1)(c) Illustration
o Duncuft v Albrecht
 shares were limited and not available on the share market, can be specifically enforced.
o Gan Realty v Nicholas
 there is no standard to ascertain the actual loss that the plaintiff would suffer by the non-
performance of the sale as the effects would be irreparable and could not be remedied by
damages.

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o Dougan v Ley; Stern v Schwabacher

 where and if shares are available on the market this principle may not be as readily apply.
 Contracts to lend money
o By nature, this contract is for money, and thus can be readily and adequately be compensated
monetarily. Therefore, SP is normally refused
o Loan Investments Corporation of Australia v Bonner
 Exception to the rule where it is a contract with more than just the component of lending
money: a contract for the sale of land and unsecured loan
 Contracts for personal services
o CH Giles v Morris
 courts refuse SP of personal services as it is difficult or impossible to ensure compliance.
o De Francesce v Barnum
 courts refuse SP of personal services as it may amount to some kind of slavery.
o Dayang Nurfaizah bte Awang Dowty v Bintang Seni Sdn Bhd
 D had failed to obtain SP of a management agreement against P since it calls for the
enforcement of personal services.
o S11(1)(c) Illustration (b)

4. Pecuniary compensation cannot be attained

 S.11(1)(d)the specific performance of any contract may, in the discretion of the court, be
enforced when it is probable that pecuniary compensation cannot be got for the non-
performance of the act agreed to be done
 Evans Marshall & Co Ltd v Bertola SA
 In order to determine whether to grant SP is not whether damages are an adequate
remedy but whether “just, in all the circumstances, that a plaintiff should be confined to
his remedy in damages
5. SP where subject has partially ceased to exist
 s 57 Contracts Act 1950which says that contract is not valid if after the contract is made,
the performance becomes impossible. So the contract is impossible to perform
 S12SRA a contract is not wholly impossible of performance because a portion of its
subject matter, existing, at its date, has ceased to exist at the time of the performance
 Wong Siew Choong Sdn Bhd v Anvest Corp Sdn Bhd
 App is the registered owner of all the land.
 A dispute arose over the transfer of the said land, the resp had claim for specific
performance and damages.
 Court held: As the payment had been made by the Resp for the purchased land, the
beneficial ownership of the remaining land would pass to the Resp
6. SP of a part of a contract
 S16 The court shall not direct the specific performance of a part of a contract except in
cases coming under one or other of the three last preceding sections.
 Where part unperformed is small
 S.13Where a party to a contract is unable to perform the whole of his part of it, but the
part which must be left unperformed bears only a small proportion to the whole in value,
and admits of compensation in money, the court may, at the suit of either party, direct

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the specific performance of so much of the contract as can be performed, and award
compensation in money for the deficiency.
 Wong Siew Choong Sdn Bhd v Anvest Corp Sdn Bhd
- App is the registered owner of all the land.
- A dispute arose over the transfer of the said land, the resp had claim for specific
performance and damages.
- Court held: As the payment had been made by the Resp for the purchased land, the
beneficial ownership of the remaining land would pass to the Resp
 Where part unperformed is large
 S.14Where a party to a contract is unable to perform the whole of his part of it, and
the part which must be left unperformed forms a considerable portion of the whole, or
does not admit of compensation in money, he is not entitled to obtain a decree for
specific performance. But the court may, at the suit of the other party, direct the party in
default to perform specifically so much of his part of the contract as he can perform,
provided that the plaintiff relinquishes all claim to further performance, and all right to
compensation either for the deficiency, or for the loss or damage sustained by him
through the default of the defendant.
 Independent part
 S. 15 When a part of a contract which, taken by itself, can and ought to be
specifically performed, stands on a separate and independent footing from another part
of the same contract which cannot or ought not to be specifically performed, the court
may direct specific performance of the former part
 Odessa Tramways Co v Mendel; Ogden Fossick; City Investment Sdn Bhd v
Kooperasi Serbaguna Cuepacs Tanggungan Bhd
- the parts of the contract that the plaintiff seeks to enforce must be severable from the
whole contract.
-

Contract not specifically enforceable

 s20(1) contract not specifically enforceable

A. a contract for the non-performance of which compensation in money is an adequate relief
 Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
o disputing parties were large commercial organisations whose interests were purely
financial. There was no personal breach of faith. Therefore damages was the appropriate
remedy
B. a contract which runs into such minute or numerous details, or which is so dependent
 Contracts for personal service.
 Especially applicable when there is a necessity for the continued supervision of the court to
ensure the observance of the contractual terms (difficultiies of constant superintendance).
 Oon Hock Lai v Lee Kok Leong
o Building contracts are generally not granted with SP. Also because damages are
adequate.
 Exception Wolverhampton Corp v Emmons:
o The building work is defined by the contract

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o Plaintiff’s substantial interest in having the contract performed is such that damages is
insufficient
o Defendant has possession of the land due to the contract
C. a contract the terms of which the court cannot find with reasonable certainty
 Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd – relevant clause is as
follows:
o To keep the demised premises open for retail trade during the usual hours of business in
the locality and the display windows properly dressed in a suitable manner in keeping
with a good class parade of shops
 Unclear to determine as to whether tenant was doing enough to meet the standards in the clause
 Lin Nyuk Chan v Wong Sz Tsin
o The uncertainty must be sufficiently serious, that the court cannot order what the
defendant must specifically do.
D. a contract which is in its nature revocable
 Puncak Niaga Holdings Bhd v NS Water Sdn Bhd
o no sense of SP where it will amount to futility.
E. contract made by trustees either in excess of their powers or in breach of their trust;
F. a contract made by or on behalf of a corporation or public company created for special purposes,
or by the promoters of the company, which is in excess of its powers;
G. contract the performance of which … over a longer period than three years
 Si Rusa Beach Resort Sdn Bhd v Asia Pacific Hotels Management Pte Ltd
o Agreement has been made between App & Resp.
o Dispute arose between them & Resp applied for interim injunction to restrain app from
interfering in the running hotel. Application was successful – App appeal.
o Held: the learned trial judge was correct in holding judgment but had failed in
considering all material facts that app was in possession of hotel. If status to be maintain
the only order that could be made is to allow the App to continue run the hotel until the
action Is finally litigate

For Whom Contracts Cannot be Specifically Enforced

o S23 Specific performance of a contract cannot be enforced in favour of a person
A. who could not recover compensation for its breach
o Eg.claimant no capacity, not privy to contract
B. who has become incapable of performing, or violates, any essential term of the contract
that on his part remains to be performed;
o Ganam d/o Rajamany v Somoo s/o Sinniah
 plaintiff must be ready, willing and able to perform his obligations.
o Swain v Ayres
 plaintiff may be denied SP if breached important terms of contract as it indicates
his inability or unwillingness to perform his obligations
C. who has already chosen his remedy and obtained satisfaction for the alleged breach of
contract; or
D. who, previously to the contract, had notice that a settlement of the subject matter thereof
(though not founded on any valuable consideration) had been made and was then in force.

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Against Whom Contracts Cannot be Specifically Enforced

 S.27 Specific performance of a contract cannot be enforced against a party thereto in any of the following cases:
A. If the consideration to be received by him is so grossly inadequate, with reference to the state of things
existing at the date of the contract, as to be either by itself or coupled with other circumstances
evidence of fraud or of undue advantage taken by the plaintiff;
 Falcke v Gray
 Gross inadequacy alone is insufficient a reason for refusal of SP as common law allows
for such valid contracts. However, where elements of fraud or undue influence were
used to obtain the grossly inadequate benefit SP will be denied.
B. if his assent was obtained by the misrepresentation (whether wilful or innocent), concealment,
circumvention, or unfair practices, of any party to whom performance would become due under the
contract, or by any promise of the party which has not been substantially fulfilled
 Walter v Morgan
 gaining unfair advantage by unfair means may not necessarily void a contract in the eyes
of common law. However, equity requires claimants come with clean hands and may
deny applications for SP.
 Blomley v Ryan
 contract was set aside as the defendant was placed in a weaker bargaining position due
to his lack of education, advanced age, reduced mental strength on account of his
addiction to rum and that the negotiations took place over a drink of rum rendering the
defendant partly drunk and ill.
C. If his assent was given under the influence of mistake of fact, misapprehension, or surprise:
 Provided that, when the contract provides for compensation in case of mistake, compensation
may be made for a mistake within the scope of the provision, and the contract specifically
enforced in other respects if proper to be so enforced
D.

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