Law and Equity @amerhaiqal_

EQUITY IN ROMAN LAW EQUITY IN ISLAMIC LAW

A. Introduction A. Introduction B. Objectives of Application of Equity
-Concept of justice: -Equity is part of Muslim way of life as -can be applied to achieve maqasid al
i. Aequitas ->Refer either to the legal concept of equity or fairness between individuals -> embodied in Quran & Sunnah shariah:
Refers to notions of justice, equality, conformity, symmetry or fairness -X contradictory to the Quran and Sunnah Protection of religion, life, mind, lineage,
ii. Jus -> Refers to legal/law and aequitas refers to equity -Shariah: Provides for justice and equity in property.
-Natural law or law common to all nations is the source of equity under Roman law. all aspects of human life.
-Praetor/judges/magistrates were responsible for the application of concept of aequitas. -Derived from Revelation & Divine Wisdom
B. Roman Law C. When Can Apply Equity
- Law of Twelve Tables: -role may be channeled through a Council of Ulama (Fatwa) as searching for a Muslim
i. Compiled around 450 B.C. and inscribed on a dozen bronze tablets set up in the Forum. who is knowledgeable in every aspect is not easy
ii. Remained in use for over 1000 years. -general principles are based on the opinion of jurists derived from 2nd sources
-The Justinian Code -strict adherence to such legal principles based on 2nd sources may cause injustice ~equity
i.Second set of Roman laws, around A.D. 565. The Emperor, Justinian, made the justice would intervene
system available to everyone in society- the rich and the poor. D. Authority of Equity
-Most prevalent and oldest surviving legal system in the world. (in continental civil law Quran: Hadith:
system with modifications) “Allah commands justice, the doing of “People, be aware of injustice, for injustice
C. Feature of Roman Law good…”- (An-Nahl:90) shall be darkness on the Day of Judgement.”
-Laws are written into a collection, codified, and not determined, as in CL, by judges. “If you judge, judge in equity between
-Provide all citizens with an accessible and written collection of the laws which apply to them.” – (Maidah:42)
them and which judges must follow. E. Differences under English law and Islamic law
-Roman Jurists recognise the theory of a set of legal principles which is considered as English law Islamic Law
superior and can supersede any outmoded or rigid law and called it equity -from natural law, human interpretation & -sourced from Quran, Sunnah, Ijtihad and
D. Equity and Roman Law reasoning Ijma
-Office of the Praetor (consul/magistrate) whose special function to administer justice -based on man-made law, assist CL as a -based on concept of divine law & justice,
infused the principles of equity into the Roman law. They were trained in law. gloss on it & confined to civil matters wide & flexible but holds firms on provision of
-> have vast powers of interpretation and amendment in accordance with rules of natural Q&S
justice, hence equity. -based on society needs, may exceed -takes into account the needs of society, but
-Roman law jurist relates betw law (jus) and aequitas through the method of interpretation moral, virtues & religion must not exceed Shariah & Divine text
->Roman jurists will interpret the written legal rule by looking at the intention of the author. E. Method of Equity
They can add to the written law in their interpretation to achieve aequitas. 1. Istihsan (Hanafi’s)
-They remained in check by virtue of their early training and by strong restraint of Introduction Authority
professional opinion.
-In their interpretation method, the jurists also functioned as intermediators, of the law and -Legally: method of exercising opinion in Quran:
real life situations, thus they will not stick to the literal meaning of the law/codes per se; but order to avoid rigidity and unfairness that “…Allah intends every facility for you. He
will adapt these laws/codes to the actual life and ensure practicable application of the might result from literal enforcement of the doesn’t want to put you in difficulties.”
law/codes. existing law and setting aside an (Baqarah:185)
-A correct interpretation of the law and the basic principle in legal interpretation all established analogy in favor of an Hadith:
throughout is equity. alternative ruling which serves the ideal of “The best of your religion is that which bring
-Law requires that facts of each case to be interpreted and considered before the law is to justice and public interest in better way. ease to the people.”
be applied in line with the concept of aequitas to find the true intention of the law Practice of Caliph Umar:
- Equity is basic principle of legal interpretation, without aequitas, knowledge of the -not enforce hudd during the time of famine
requirements or circumstances of the case to which the law is to be applied -> impossible under reason of necessity to live
to find the true intention of the law. Importance Jurist’s View
-Roman Law – judges gave preference to equitable rules in enforcing any judgments i.e. -bridge gap bet. Law and social realities “To abandon with exception what is required
as part of legal system. as jurists could pay attention to by the law bc applying the existing law would
-Under early English law, equitable principles were enforced by a distinct set of judges circumstances of an existing problem lead to departure from some of its own
(Chancery court) under a separate system. -developing the existing law and refine it objectives.” – Ibn Al Arabi
-Later stage of EL development, equity recognized as part of CL but only to supplement by making necessary exceptions and
any harshness and rigidity of CL
 Law and Equity
discarding any impractical and undesirable
elements
-legislating on fresh problems in a
situation where there are no laws in
classical legal literature
2. Masalah Mursalah (Maliki’s)
Introduction
-Maslahah consists of consideration which
secures a benefit or prevent harm – (Al-
Ghazali)
-Basis: Uphold the higher objectives of
Shariah
-ONLY applicable to issues where there is
NO authority in the primary sources //
situations not covered by any text of
Shariah.
-Method: Allow deduction of law to be
based on general considerations of the
public good ~ to relate problem to
appropriate solution which is nearer to
public interest and within spirit of Shariah
and then formulate this rule of law.
@amerhaiqal_
Didn’t approve bc he termed it as “arbitrary-
law making” in religion. – As-Shafie
Not an arbitrary exercise in personal
preferences, but form of qiyas in use and is
no less authorative than a qiyas. – Hanafis
jurist
Authority
Quran:
“Allah doesn’t wish to put a burden on you,
but He seeks purify you and to perfect His
favor on you, that you may be grateful.” (Al-
Maidah:6)
Hadith:
“The prophet only chooses the easier or two
alternatives so long as it doesn’t amount to
sin” – Reported from Aisha
Condition
i. The problem reviewed must be one
pertaining to transactions and not religious
observances.
ii. The problem reviewed shouldn’t conflict
with any sources of Shariah
iii. The matters relates to some necessity
and not any frivolous matter
iv. Maslahah must be genuine and general
(applicable for all)
 Law and Equity
CHAPTER 1: INTRODUCTION & NATURE OF EQUITY
A. Introduction
-Law of equity -> originated from a source which is very different from CL
-Study of equity -> study of the principles and rules developed & applied by the Chancery
Court.
-Focus -> more concern with the conduct of parties in each situation rather than just with
the literal application of the law.
-Nature -> More philosophical.
-Practical application ->more evident in civil matters and integrated with the substantive
law principles
B. What is Equity
-Latin term “aequitas equitas” = fairness or justice/equality
-Popular definition – fairness/justice or the quality of being fair & just
-Generally, it connotes equality or justice and derives its authority in the principles of
natural justice
-Legally - body of rules which exists by the side of CL & supersedes the CL in case of
conflicts with it, to achieve justice and fair play. “A gloss upon the common law”
-Equity’s elements = natural justice, good conscience and fairness.
-Technically: the body of rules developed and applied by the High Court of Chancery in
England. -“the body of principles developed by the Court of Chancery prior to 1873 as
since modified by courts administering that jurisdiction”
-Encyclopedia Britannica: a system of law/ legal principles which have superseded or
supplemented the Common law in case of conflicts with natural justice.
-Function: when law becomes rigid and causes hardship, injustice or defective; the Court
will intervene when the acts/omission is “against the conscience”
C. Functions of Equity
-As a gloss upon CL to overcome the severity and deficiencies of the CL rules; to ensure
justice is carried out in the Courts.
-Developed in responses to the rigid technical procedures of CL ->to supplement and
mitigate the harshness of it
D. Equity in Ancient Time
- Aristotle, 23 centuries ago, defined equity as - that idea of justice which contravenes and
corrects the written law when it is in error. He regarded equity as the process through
which a deviant man-made law is brought in harmony with the law of God or the law of
reason.
-To him, equity is more of judicial discretion which modifies admin of law than trying to
supersede it.
-Early European civil law which was under the influence of Roman Law identifies equity as
similar to justice.
E. Difference with Common Law
-The source/origin of each legal rules
-The set of remedies that each has to offer
-The subject matter of each legal rules
CHAPTER 2: ORIGIN AND GROWTH OF EQUITY
14th Century: Emergence of Equity
@amerhaiqal_
-Claimant could only bring a case at CL if there was a writ which covered his wrong. If such a
writ didn’t exist, then he was left without a remedy.
-In these circumstances, claimants, who were without a remedy, began to petition the King
for justice. As the petitions grew more numerous, the King passed them to his Chancellor, an
ecclesiastic and the so-called keeper of the King’s conscience.
-Chancellor would make such order as appeared to him fair and ‘equitable’. Likewise, the
interests of beneficiaries under the use weren’t recognized by CL. In the event of a dispute
regarding their rights, the beneficiaries would petition the Chancellor to exercise his discretion
and do equity.
-This is how the use and ultimately the trust became a principal feature of equity.
15th Century: Development of a Court of Chancery
The sittings of the Chancellor to hear the petitions became more regular and by the beginning
of the fifteenth century had developed into a new court of Chancery. At first, the Chancellor’s
jurisdiction was vague – hence the saying ‘Equity varies with the length of the Chancellor’s
foot’ – but gradually a doctrine of precedent and principles began
to develop.
1615: Conflict between the common law and equity
-Conflict had arisen because of Chancery’s power to issue injunctions which could prevent a
litigant from pursuing his claim at CL or prevent him enforcing a CL judgment.
-Things came to a head in the Earl of Oxford’s Case in 1615. King James I intervened in the
dispute which had arisen regarding this case between Chief Justice Coke and the Chancellor,
Lord Ellesmere, and acting on the advice of his Attorney General, Bacon, the King decided in
favor of equity.
-Thereafter equity and the CL co-existed as parts of a system.
17th-19th Century: Development of Equity into a System of Established Rules & Precedents
-Transformation of equity into a system of established rules & precedents largely due to work
of several notable Chancellors, including Lord Nottingham (Chancellor from 1673–1682), Lord
Hardwicke (Chancellor from 1736–1756) and Lord Eldon (Chancellor from 1801–1827).
-Problem: If a litigant sought both an equitable and legal remedy, he had to bring separate
cases in the Court of Chancery and the CL courts which made litigation both expensive and
slow and, in those courts, procedure was very different.
-These problems were resolved during the next 21 years as follows.
1854: Common Law Procedure Act 1854
This Act gave the Common Law courts, e.g. the Queen’s Bench, the Court of Common Pleas
and the Exchequer the power to grant equitable remedies
1858: Chancery Amendment Act 1858
This Act (aka Lord Cairn’s Act) gave the Court of Chancery the power to award the common
law remedy of damages
1873-1875: Judicature Acts of 1873 and 1875
-These Acts created the Supreme Court of Judicature which replaced the separate courts of
Queen’s Bench, Common Pleas, Exchequer, Probate and Divorce Court, Court of Admiralty
and Court of Chancery by creating the High Court with three divisions: Queen’s Bench
Division, Probate, Divorce and Admiralty Division, and Chancery Division, all of which could
exercise both CL & equity.
-Section 25 of the Judicature Act of 1873 also enshrined the following principle ‘.in all matters.
In which there is any conflict or variance betw the rules of equity & the rules of the common
law with reference to the same matter, the rules of equity shall prevail.
 Law and Equity @amerhaiqal_

CHAPTER 4: EQUITY & MALAYSIAN LEGAL SYSTEM law of England as it existed incorporated into the in force in SS and Malay
Straits Settlements Malay States Borneo States on that date, to Malacca and Fed. Of Malaya & under States based on India &
Penang, Malacca Singapore FMS Sarawak Singapore & also to Penang its common system of UK.
-1788: Francis Light -1874: Introduction of -James Brooke assisted the in so far as conditions of the federal courts. -EL was introduced in Sabah
EL with ‘local favor’ to settle Eng residential system in governor to quash the place & persons shall admit. through legislation & judiciary
disputes between the locals Perak wherein resident uprising. As a reward, he
1. 1st Royal Charter of advice should be was awarded governorship of RODYK v. WILLIAMSON 3rd Royal Charter of 4. Civil Law Ordinance
Justice 1807 considered in all matters Sarawak for his service and provides that the law of Eng Justice 1878
-First formal statutory intro of of admin except in Malay later installed as Raja of had been introduced by the -Remedy deficiencies in -Final reception of EL via
EL in Penang & Malay & religion Sarawak. Charter 1826 to supersede the current system to statutes into SS.
Peninsula -Form FMS under one -1888: Sarawak were made the law of Holland in Malacca facilitate trade in the SS. -English commercial laws
ii. Established Court of resident general: British protectorates. Both due to increase trade & formally introduced into SS
Judicature which exercised i. 1874: Selangor remained under private commercial activities in for commercial transactions.
similar jurisdiction as the ii. 1874-1887: N9 admin until ceded to the Singapore. This provision became
superior court in Eng ‘subject iii. 1888: Pahang British Crown in 1946 and -12 August 1855 - Section 6 of Civil Law
to local circumstances, -EL can’t be imposed became the Crown colonies. Granted to SS. Ordinance 1909 and later it
religions, manners & custom through reception: -Sarawak Ordinance 1928 -> -Re-organisation of the became Section 5 of Civil
shall permit. i. Not British territories Sarawak Application of Laws existing Court systems Law Ordinance 1936
iii. Implied intro of EL; by way ii. Voluntary introduced Ordinance 1949. rather than introduction
of judges’ method of handling - Civil Law Enactment of new EL
the trials & giving judgments passed in 1937 Section 3 CLA
iv. Apply to future cases after - No statutory reception
-Provides for general application of EL into M’sia.
COJ 1807 & those pending of English law until 1937 Sec.3(1): provides a cut-off date for the courts in M’sia to
trial at that time Charter - EL did apply within FMS apply common law & rules of equity:
applies retrospectively to civil before 1937 to a
Sec.3(1)(a): 7th Apr. 1956 in WM.
injuries sustained & crimes surprising extent. Sec.3(1)(b): 1st Dec. 1951 in Sabah (with statutes of gen. application)
committed b4 the Charter UFMS Sabah Sec.3(1)(c): 12th Dec.1949 in S’wak (with statutes of gen. application)
came into force -Voluntary reception -1881: British North Borneo Condition to apply common law and equity
v. Protect local inhabitants -Enjoy greater autonomy (Chartered) Co. was formed
i. Absence of local legislation ii. Subject to cut-off dates
from oppression and injustice & intervention by British by Royal Charter to take over
COJ directs that courts to -A statutory recognition of judicial practice -May use only the law & statutes as
advisors were later than administration of Sabah as a
decide civil cases according of applying EL when there are lacunae existing on the cut-off dates respectively to
FMS. result of series of treaties
to ‘justice and right’. in the local law fill any lacunae in local
-UFMS never had bet. Brunei Sultans &
-A. G v Manjeet Singh -Jamil Bin Harun v Yang Kamsiah
statutory reception of EL partnership of Overbeck and
2. 2nd Royal Charter of H: In the absence of any specific local H: It’s for court to decide whether to follow
though in 1951 FMS Civil Dent.
Justice 1826: legislation concerning contempt of court, CL English case law, subject to statute law of
Law Enactment was -1888: By virtue of
i. Extended app of EL as of contempt should be applied under sec 3. Fed. Modern English authorities may be
extended to UFMS. agreement Sabah became
applied & existing in Penang persuasive but are not binding
-Unofficial reception of British protectorates.
to Malacca & Singapore iii. “Local circumstances” proviso
EL through: -Civil Law Ordinance
ii.Application of EL subjected i. Legislation based on introduced in 1938 -Application of EL subject to 2 limitations
to modifications & suitable for English models Provided application of CL, i. Absence of local authority
local circumstances. ii. Decisions of courts equity & statutes of general ii. Only part of EL which is suited to local circumstances will be applied
iii. EL only in civil & criminal (English trained bench & application. -Syarikat Batu Sinar Sdn Bhd & Ors v UMBC Finance Bhd & Ors
matters; others – used local bar) -Reception of EL was H: Difference in law and practice in Malaysia constitutes such distinctive local
laws. - Received E.L. formally formalized by North Borneo circumstances of the local inhabitants of West Malaysia that English cases on failure to
iv. Replaced with new Court when Civil Law Application of Laws register a vehicle ownership claim should not be followed.
of Judicature for SS; other (Extension) Ord. 1951 Ordinance 1951. Section 5
provisions similar. was introduced into it -Other sources of written Sec 5(1): Law to be administered in West Malaysia except for Penang and Malacca is the
v. REGINA v. WILLANS held -Received large bulk of laws derived from legislation English commercial law as it stood on 7th April 1956, (cut-off date) in the absence of local
that the 2nd COJ introduced E.L. once they were legislation.
 Law and Equity @amerhaiqal_

Sec 5(2) - Applies to Penang, Malacca, Sabah & Sarawak, introduces English Commercial
Law at the date that the matter must be decided i.e. there is no cut-off dates. Here there is
a continuing reception of English commercial law (common law + equity + statutory
principles) in the absence of local legislation
- Allows a greater reception of EL in the field of commercial law
- Section 5 refers to ‘English Law’ and not CL of England and rules of equity. This term
encompasses more than common law and rules of equity and it includes English statutory
law. It is to be noted that the application of English Law can only be done if there is no
other provision in any written law
Section 6 CLA
-View:
i. All equitable principles are totally excluded in all land matters. Reason
– Torrens system (under NLC) is already a comprehensive system of land dealings.
ii. General equitable principles are applicable
-If not precluded by local legislation & suitable to local circumstances.
-UMBC v Pemungut Hasil Tanah Kota Tinggi [1984]
F: Appellant’s land had been forfeited by the State Authority for non-payment of rent.
Appellant tried to invoke the equitable relief against forfeiture.
H: S.6 Civil Law Act prohibits the application of English rules of equity relating to tenure of
which the equitable rules relating to relief against forfeiture are a part.
Judicial Reception
Before 1956 After 1956
-Ong Cheng Neo v. Yeap Cheah Neo -Reception of English law & equitable
[1872] principles are subjected to Sec. 3, 5 & 6 of
H: There was no trace of any established the Act.
law b4 British acquisition, it was immaterial -2 limitations in reception of English law in
to consider whether Penang was a ceded Malaysia:
territory or a settled colony since. In either a) the existence of local legislation and
view, law of England must be taken to be b) suitability to local conditions
the law of the land in so far as it was
applicable to the circumstances and
modified in its application.
 Law and Equity @amerhaiqal_

CHAPTER 5: MAXIMS OF EQUITY H: To be rewarded such an injunction as

A. Equity acts in personam remedy, the employees should undertake to
1. Application 2. Case withdraw their strike action. Since they
-Applicable: -Penn v Lord Baltimore refused to do their part, the injunction was
Where P had some equitable right against F: P filed suit in the court of Chancery for also
D even though the property in question is specific performance of an agreement in refused
situated abroad. respect of property situated in North E. He who comes to equity must come with clean hands
-Limitation: America. D challenged the jurisdiction of 1. Application 2. Case
i. D has to be within jurisdiction of court the court to grant the remedy as the -Court will refuse relief where P by prior -Chettiar v Chettiar
ii. The order must not violate the legal rules property was outside of England. conduct in relation to the matter in litigation, F: To avoid tax assessment over ownership
of another country H: The court acts in personam against the has acted in bad faith or violated some of an extra 40 acres of rubber land, the
iii. The order given must be capable of conscience of the person and thus within equitable principle. father transferred the land to his son as
being executed without intervention of a the jurisdiction of the court to decree the -Clean hand doctrine: nominee. A receipt of $7 000 was obtained
foreign court. performance of the agreement. Applies when P has acted unjustly in the from his son when actually no money was
B. Equity follows the law very transaction of which he complaints involved. Father want to sell the land, but
1. Application 2. Case his son refused to give him power of
-Equity will ensure that its own rules are in Punca Klasik Sdn Bhd v Abdul Azziz bin attorney.
line with the CL ones. Abdul Hamid [1994] H: Dismissed father’s action for declaration
-If an act is legally wrong but incapable of F: Court refused to estop an aggrieved of trust for him on ground of “unclean
being redressed under CL due to party from removing the caveats, even hands’ as transfer was made for fraudulent
inadequacy of its remedies or certain though it had prior knowledge of their purpose.
reasons, then only equity will intervene to existence, as the caveats themselves in law F. Equity is equality
ensure justice is carried out. were invalid. 1. Application 2. Case
H: Equitable principle of estoppel could not -Equity will not play favourites -Midland Bank PLC V Cooke [1995]
apply in the light of the clear provisions of -Proportionate equality only F: Husband and wife disputed over the
the law as equity follows the law. -Applicable: ownership of their matrimonial home.
C. Equity will not suffer a wrong to be without remedy Where parties are entitled to an interest in H: The fact that a married couple made no
1. Application 2. Case the same property and there are no express express agreement as to the proportions in
- “Ubi jus, ibi remedium” -> Where there is a - Othman & Anor v Mek [1972] provisions as to how it should be allocated which their home should be beneficially
right, there is a remedy. F: Appellants claimed for a declaration that to the parties owned did not prevent the court, applying
-Will not allow technical defects of the CL to R, as registered proprietor of a half - Equity would give equal shares to those maxim, inferring an agreement that they
prevent worthy Ps from obtaining redress. undivided interest in two parcels of land who are entitled to property if there exist no should own it jointly in equal shares.
-Limitation: held the same in trust for the appellants. other basis for the court to divide the
i. Does not apply if there is a breach of H: Applying maxim, Appellants entitled to property
moral right only. the remedy since they have the rights as G. Equity regards that as done which ought to be done
ii. Does not apply if the right and remedy they were a right owner to the said land. 1. Application 2. Case
were within the jurisdiction of CL courts -Where one party has incurred an obligation - HL Bannerji V Chin Cheng Realty (Pte
iii. Does not apply if the party either himself to do something for the other, equity looks Ltd)
destroy or allowed to be destroyed on it as done and have same result as if the F: Parties had signed 10-year lease of the
evidence in his favour or waived his right to obligation had been actually performed. R’s premises with provision for renewal if
an equitable remedy. -Applied in: App made a request 3 months before the
D. He who seeks equity must do Equity i. Doctrine of conversion expiration of lease. When App requested
1. Application 2. Case ii. Executory contract for renewal of the lease, R refused.
-Person who prays for an equitable relief or -Chappell v Times Newspaper iii. Doctrine of part performance H: App had an equitable right to renewal of
enforcement of equitable rights must be F: Employees of Times launched a strike lease as equity regards that as done which
ready to do equity against their employer. They went to court ought to be done
-Willing to abide by the court’s direction to and applied for injunction, preventing their H. Equity aids the vigilant and not the indolent; delay defeats equity
do what is fair and right to the other party. employer from carrying out the threat to 1. Meaning 2. Case
- Focus on the FUTURE conduct of the sack them.
party concerned to be fair.
 Law and Equity
-Law assists those who are watchful and
not those who sleep on their rights’.
-Applicable to equitable claims which are
not covered by a statutory/limitation period.
I. Equity looks to the intent and substance rather than form
1. Application
-Equity doesn’t look to the form but the
substance
-Equity will consider parties’ intention
-Will not allow a transaction to be set aside
on grounds of technicality
J. Equity does not allow a statute to be made an instrument of fraud
1. Application
-Equity will not allow a party to insist on his
legal rights under a statute to cause
detriment.
K. Where the equities are equal, the first in time prevails
1. Application
-The interest takes effect in order of their
creation.
Application:
i. Where there are 2 or more competing
interests, provided both the interests are
equitable
ii. When 2 parties each have a right to
possess something, then one who acquired
an interest first should prevail in equity.
@amerhaiqal_
- Intel Corp V Intelcard System Sdn Bhd L. Where the equities are equal, the law prevails
& Ors 1. Application 2. Case
F: P came to know about D when one of its -Applied: -Cave v Cave
solicitors in Hong Kong stumbled across the i. A legal interest prevails, even though the F: A legal mortgage created without a
domain name (www.intelcardsystem.com) equitable interest has been created prior to notice of the prior beneficial interest.
on the net. P tried to negotiate with D but the legal interest H: Applying the maxim, legal mortgage took
failed. P applied for injunction to stop D ii. When there is more than one claimant, priority over the equitable interest having
from using P’s name in D’s business. but all claimants have the same entitlement been created bona fide for value without
H: 5 years delay in instituting a claim will to a legal claim notice.
not bar P’s claim because it was trying to M. Equity gives account of profit not damages
reach an amicable settlement with D but 1. Application
was not met with a favorable response. - At CL, compensation awarded to a party is calculated on the basis on what & how much
loss is suffered by the aggrieved party.
2. Case -Compensation is based more on how much profit had the D gained from his improper
-Wan Naimah v Wan Mohd Nawawi conduct.
F: Fight between sister and brother over a
piece of land. Father of the parties bought a
land, but the land was transferred to his
brother-in-law. Later brother-in-law
transferred the land to D and registered
under D’name. P was infant at that time and
argued that D held an undivided half share
in the land for the trust for him.
H: If there is clear intention to create trust in
land, the intention of deceased paramount
& not needs to be in writing.
2. Case
-Bannister v Bannister
F: In Law of Property Act 1925, contracts
are only enforceable if in writing. Bannister
conveyed a house to his brother in law and
he orally agreed to allow her to live in it rent
free as long as she wished. This agreement
was unenforceable as it was not in writing
and he attempted to evict her.
H: Agreement was enforceable,
notwithstanding the requirement of writing.
2. Case
-Abigail v Lapin [1934]
F: Lapin executed a transfer of title land to
A. Lapin did not put caveat on the title. A
then mortgaged the property to Abigail,
however not registered by Abigail.
H: Abigail’s interest had priority even
though where the equities are equal, the
first in time prevails. Lapin had armed A to
not put caveat out on the property.
 Law and Equity @amerhaiqal_

Equity & The Malaysian Land law 3. Equitable Charge 4. Equitable Lease
A. Legal and Equitable Interest -‘Charge’ is a form of security created over -An unregistered lease is of no effect under
1. Legal 2. Equitable land by registered proprietor to secure the NLC.
-An interest acquired by a person which is -An interest acquired by a person which is repayment of a loan. -But in some cases, courts gave effect to
protected & recognised by law via statutory not recognized by definite statutory -Registration of charge is desirable but lack such leases by ordering SP of agreements,
provisions. provisions but by equity of is not fatal. or by ordering registration of the lease.
B. Acceptance of equity into Malaysian land law -One of the methods to ensure the aim of -Wan Salimah v Mahmood
1. No English Law & equitable Principles in 2. Allow equitable principles to be applied Torrens System i.e. the conclusiveness of F: P entered into agreement with D whereby
Malaysia land law register is maintained. D agreed to lease his share in land to P for
-Torrens System as contained in NLC is a -NLC only regulates the rights & obligations -Unregistered lease is of no effect under 15 years. Lease was not registered, D
comprehensive system of land law. of parties only after registration & not before the NLC. In several cases, the Courts entered into sale purchase agreement to sell
-UMBC v Pemungut Hasil Tanah, Kota registration. It doesn’t cover ALL relations gave effect to such leases by ordering the land.
Tinggi [1984] betw parties to land transactions. specific performance of the agreement or H: Since parties intended there should be a
F: A’s land had been forfeited by State -Bhagwan Singh & CO S/Bhd v Hock Hin by lease, court recognize the equitable lease.
Authority for non-payment of rent. A tried to Bros S/Bhd [1987] ordering registration of the lease
invoke the equitable relief against forfeiture “The Torrens System doesn’t prevent the 5. Equitable Ownership 6. Jual Janji
H: S6 CLA prohibits app of equity relating court from doing equity where the rights of -A type of land ownership which is - When a person approached another for a
to tenure of which equitable rules relating 3rd parties have not intervened.” equivalent to concept of bare trustee. loan & surrender his land to lender for that
to relief against forfeiture are a part. -Karuppiah Chettiar v Subramaniam -Accepted by court in M’sia even though it purpose; lender then promises that he will
NLC is a complete & comprehensive code H: Sec 206(3) NLC, courts may still enforce seems to be against spirit of “Register is return the land back to borrower once the
of law governing the tenure of land in ‘in personam’ claims relating to unregistered everything’. loan is fully repaid. An agreement will be
Malaysia & the incidents of it, as well as dealings. -Equity: Person who had entered into a entered to that effect.
other important matters affecting land & contract for purchase of land, paid -Haji Abdul Rahman v Mahomed Hassan
there is no room for importation of any purchase price, entered into occupation & F: Borrower entered into a loan agreement
rules of English Law in that field except in improved the said land, with owner’s with lender and transfer his land to him with
so far as the Code itself may expressly permission, is known to have an equitable a collateral agreement that the land is to be
provide for it. ownership in the land though it’s not re-transferred upon full settlement within
C. Judicial Approaches registered yet. 6m. Borrower failed to repay the loan within
1. Constructive Notice 2. Bare Trust -Must prove: the agreed time and only settled the debt
-Purchaser of a land is said to have notice -Vendor becomes a trustee for purchaser, in i. a valid contract / agreement for the after expiry of agreed date.
of any instrument, fact, or thing, which equity, once a valid contract is concluded, purchase of the land H: JJ is not a security transaction or form of
would have come to his knowledge if he until payment of full purchase price, so long ii. purchaser had paid purchase price mortgage recognized in Malaysia. Borrower
would have made reasonable inquiries or as the title is not passed to the purchaser. iii. purchaser had been given possession of was no longer entitled to redeem the land as
inspections. -Under the NLC only one form of ownership the said land by the seller / personal time is essence in the agreement.
-The app is said to defeat purpose of is recognized i.e. the registered ownership – representatives of owner
Torrens system itself(register is everything) the purchaser would acquire no right until
-System of private caveats under NLC is transfer is effected. -Munah v Fatimah [1968]
as a substitute to this doctrine to avoid -Ong Chat Pang v Valliappa Chettiar F: Beneficiaries of an estate who had
insecurity and uncertainty of title and the [1971] contracted to sell the land to P but failed to
ignorant. transfer the land legally.
-Haroon v Nik Mah [1951] H: P was ordered to effect the transfer.
F: 2 consecutive unregistered purchaser. Court recognized that P was equitable
Vendor sold land to Haroon and later owner of land after signing the contract and
sold to Nik Mah (taking possession). going into possession.
H: Nik Mah prior in claim as has already Sec 3(1) CLA 1956 allows app of EL and equitable principles in Malaysia.
took possession of the property. Court
allueded to the fact that notice can be Sec 6 prohibits the app of EL to land matters.
given by taking physical possession of the
land or by taking possession of Issue Devi v Francis: Land in England is one thing and equity is another matter
Document of Title
 Law and Equity @amerhaiqal_

Chapter 6: Equitable Assignment F: B assigned the debts owed by MAS to MIMB. Due to absence of notice, there was no
A. Introduction valid legal assignment.
- Assignment - one of the methods to transfer interest/benefits in property e.g. of a contract I: Whether there was an equitable assignment.
/chose–in-action to a 3rd party. H: (a) Since statutory notice was not given to D, as the stakeholder under s 4(3) of CLA
-3 parties involved (at least): 1956, there is no legal assignment.
i. Assignor – person who transfers the benefit (b) However, there is an equitable assignment. Syarikat Bahagia has clearly intended
ii. Assignee – the person who is going to receive the benefit that MIMB be given an interest under the contract with MAS and, MAS had knowledge of
iii. Paymaster – debtor/3rd party who is responsible to transfer such benefit to the that intention. D had become trustees of the money subject to the debt.
assignee. (c) D as a debtor and ‘stakeholder’ is responsible to pay the money to P even if he had
-Main effect of Assignment: assignee can sue paymaster/debtor as the person liable to paid Syarikat Bahagia earlier.
transfer benefit to him 2. Equitable Assignment
-Assignment can be of legal chose in action e.g. debt or equitable chose in action e.g. -An assignment which does not fulfill the criteria for a legal assignment
interest in a trust fund. -No formal statutory requirements; includes defective statutory assignments
-Torkington v Magee [1902] -Apply ‘equity looks at the intent rather than the form’
“Chose in action is a known legal expression to describe all personal rights of property b) Element
which can only be claimed or enforced by action (in Court of law), and not by taking i. Identifiable Subject Matter ii. Intention of Assignment
physical possession. -Subject matter must be clearly identifiable The form or language of the instrument is
B. Type of Equitable Assignment either of chose-inaction (absolute not important if the meaning is plain -
1. Legal Assignment assignment) or rights to be assigned William Brandt’s Sons & Co v Dunlop
-Recognized or created via statute (statutory assignments) -x identifiable -> invalid Rubber Co Ltd [1905]
b) Elements: Sec 4(3) CLA 1956 -MIMB v MAS [1982] court explained :
i. Must be absolute ii. Must be by writing “The words must clearly show an intention
-Assignment of the whole of assignor’s -Must be in writing & signed by the that the assignee shall benefit from the
interest in the chose in action. assignor/ by authorized agent. chose in action”
-Need to consider language of instrument -Not necessarily a formal deed. c) Case
as a whole to determine it. -Must be clear to debtor that debt has been -Malayawata Steel Sdn Bhd v Govt of Malaysia
-Not purporting to be by way of charge – assigned. F: A was a steel supplier. They agree to supply steel bars to the main contractor for a
must not be in the nature of a charge project in KL. R was the client of the main contractor. There was an agreement betw the
(charge is a right to payment out of a fund main contractor and A that certain progress payment receivable form the client would be
rather than transfer of the fund to the used to pay for the steel bars, A claimed that the progress payment had been assigned to
assignee) them.
iii. Notice is given iv. Subject matter H: There is an equitable assignment. It’s clear that if the debtor knows of the assignment
-A prerequisite to a valid statutory .-A debt or a legal chose in action. and pays the debt, nevertheless to the assignor, he may still be held liable to the assignee.
assignment. -Consideration - requirement of statutory No particular form is required to constitute an equitable assignment.
-Given to the person whom assignor would assignment that assignee must have iii. Form of Assignment
be able to claim; effective upon receipt by provided consideration - betw him & -No particular form is required
that person/on his behalf assignor c) Issue
i. Consideration ii. Give Notice to Perfect the Assignment
UMW Industries Sb v Ah Fook [1996] -Snell’s view: EA of equitable chose does -Not essential but desirable to ensure that
F: A finance company let one Mr. Yew an excavator on hire-purchase. The finance not require consideration if the assignor has assignor’s right will be secured.
company then conveyed all its rights, interest and labilities to UMW. Subsequently, R done everything required of him to transfer -Malayawata Steel Bhd v Govt. of M’sia
guaranteed the mining company on the excavator. However, notice of the assignment was the benefit/debt to assignee. However, if EA [1975]
not given to R until 2 years later. of a chose for some time in future requires H: Notice to the person owing the debt or to
I: Whether failure to give notice of assignment within reasonable time fatal. consideration. the holder of the fund is not necessary to
H: The deed of assignment was absolute and came within s 4(3) of the Act as the -Mohamed Azmi J in MIMB v MAS complete the title of the assignee, but if he
conditions were all fulfilled. Further, there was evidence that the deed of assignment was BERHAD omits to give such notice, a subsequent
signed by a proper officer on behalf of the assignor. H: An equitable assignment can be for assignee who took without notice of the 1st
value or voluntarily charge, may, by giving notice have priority
-Malaysian International Merchant Bankers v Malaysia Airlines System Bhd [1982] over him…” per Mohd Azmi J
 Law and Equity @amerhaiqal_

d) Examples of Valid Assignment

i. An assignor ordering in writing a third person to pay to assignee an amount in his hands,
or which is to come to his hands.
ii. An assignor requesting a person who is holding funds belonging to the assignor, to pay
to the assignee and charge to the account of the assignor.
iii. An assignor requesting the assignee to erect, after the assignor’s death, a tombstone
and pay for it out of certain life insurance and handing over the insurance policies to the
assignee.
iv. An assignor declaring in writing that once he receives certain sum due to him from a
third party, he will hold it for the assignee
3. Assignment of expectancies
a) Definition
-An assignment of property to be acquired in future
-Common law: void ->one could not assign what one does not possess.
-Equity: if made for valuable consideration, is treated as valid contract to assign
b) Requirement
i. Must be made for some valuable consideration or to obtain some benefit.
ii. The property must be described with sufficient particularity to permit its identification
when it comes into existence or into the possession of the assignor.
iii. It must not be contrary to public policy.
c) Interest assignable:
i. Mere expectation of inheriting the estate of an ancestor who is still alive.
ii. An interest which a person has in the property bequeathed to him by a testator who is
still alive.
iii. Future income, future royalties or copyright in music yet to be composed or books to be
written.
iv. Future damages expected to be recovered in an ongoing lawsuit
d) Case
Re Anguillia Deceased [1941]
H: Even though the daughter’s share in the will at the date of the mortgage is not an actual
interest in property yet, nevertheless the language of the mortgage and of the assignment
was sufficiently wide to cover the interest which would have come to her on the death of
the testator.
 Law and Equity @amerhaiqal_

Equittable Estoppel Willmott v Barber

A. Introduction There are 5 elements before a proprietary estoppel can operate:
Binds the person who made the representation; restricts a person’s ability to “go back on” i. P must have made a mistake as to his legal rights
a belief or assumption that they have induced in another person. ii. P must have done some act of reliance
B. Type of Equittable Estoppel iii. D the possessor of a legal right must know the existence of his own right which is
1. Promissory Estoppel inconsistent with the right claimed by P
a) Definition iv. D must know of the P’s mistaken belief
Snell : where by his words/conduct, one party to a transaction freely makes to the other an v. D must have encouraged P in his act of reliance
unambiguous promise or assurance which is intended to affect the legal relations between c) Case
them (whether contractual or otherwise) and before it is withdrawn, the other party acts Greasley v Cooke (1980)
upon it, altering his position, to his detriment; the party making the promise / assurance will F: A woman was employed as live in maid. Subsequently, she cohabits with her
not be permitted to act inconsistently with it. employer’s son who was aware of the r/ship but did not object to it. On the death of her
b) Element employer, she didn’t ask for payment of her wages because she believed and had been
Central London Property Trusts Ltd v High Trees House Ltd [1956] encouraged by son & members of his family to believe that for her services of taking care
F: P company leased to D a block of flats for 99 years at a rent of 2.5k/year. Due to WWII, of the family she could regard the house as her home for the rest of her life. Later, son died
D was unable to find sub-tenants for his flats, and thus, was unable to pay rent. P agreed & heirs brought the claim for possession of house against ex-maid. She claimed
to reduce the rent to 1250 from the beginning of the term. After WWII, all the flats were let estoppel.
and P claimed the full rent as from the middle of that year. H: Expenditure of money on a property is not a necessary element to establish proprietary
H: P succeeded however, they would be estopped from claiming the full rent for the period estoppel. It is enough to raise equity if the party to whom assurance is given; acts upon
from 1940-1945 on the ground that though not technically bound due to lack of that faith of it; and it is for the courts of equity to decide in what way the equity should be
consideration, P had intended D to rely on the promise and D had acted on the faith of it. satisfied.’ The conduct of the maid of not asking for wages or finding a new job was
Intention to create legal relation is sufficient to allow a party to raise estoppel. induced by the assurances given to her.
i. Clear & unequivocal promise or ii. Promisor intended to AFFECT THE 3. Estoppel by representation
assurance by promisor LEGAL Relations between parties a) Definition
iii. The promisee acts in reliance of that iv. Promisee acts upon the promise, altering It prevents a person from departing from an assumption of existing fact where due to that
promise his position to his detriment person creation of such assumption, another party has relied on it, for the purpose of their
c) Effect legal relations.
i. App of promissory estoppel is limited to a defence. It doesn’t create a cause of b) Element
action where none existed before. i. Representation ii. Existing fact iii. Another party had acted,
-Combe v Combe [1951] in reliance of the repr to his
F: A husband promised to make maintenance payments to his estranged wife but failed to detriment
do so. The wife brought an action to enforce the promise invoking promissory estoppel. A statement which purports -Only repr of an existing The party acting on the
H: Her action failed. There was no pre-existing agreement which was later modified by a to affirm, deny, describe/ fact is acceptable. Intention representation is not under
promise. The wife sought to use promissory estoppel as sword and not a shield. relates to any existing fact/ or belief is not on existing any duty to inquire about its
circumstances/ thing OR fact. Facts that might truthfulness
ii. Amalgamated Investment & Property Co Ltd v Texas Commerce International any past event. It can be become reality in future are
Bank Ltd [1982] made before or at the time unacceptable
F: Amalgamated had mortgaged a property in Bahamas in order to obtain loans, they of the contract, or of some -Reason: All these might be
executed a guarantee for repayment of loan. These loans were also made available to matter relating to it. liable to change in future.
their subsidiaries. In reliance upon the parties’ belief that under the guarantee, As were -Can be in any form/means Existing – must be of
bound to discharge any indebtedness of the subsidiary in respect of the loan. of communication; can be continuous nature – past
H: As’ claim was dismissed. Amalgamated knew that the guarantee did not include loans through conduct, silence event, included
given to ANPP but they allowed the bank to harbour under this mistake and kept quiet c) Case
2. Proprietary Estoppel Kerajaan Malaysia V Mohd Mokhtar Ali [1995]
a) Definition F: D was a govt servant who resigned from his job. D had earlier obtained a loan from P.
Can prevent an owner of an interest in property from asserting her/his rights against By a letter in 1983, P agreed to a variation in the loan repayment method by D which will
another party whom he/she has allowed or encouraged to deal with that interest, or act in be by postal order money. D failed to pay and P initiated recovery action. D argued that P
relation to that property, as if the latter had rights to the property was estopped from doing so by virtue of the 1983 letter.
b) Element H: No representation was made to the D as D had not relied on the repr made by to P to
resign his position as he left his job on his own accord.
 Law and Equity @amerhaiqal_

Injunction court of first instance, but later reversed by the COA on the ground that no prima facie
A. Definition and Nature case of infringement had been made out. P subsequently appealed to the HOL.
-Judicial remedy by which a person is ordered to refrain from doing or ordered to do a H: American Cyanamid guidelines:
particular act or thing 1. There must be a serious question to be tried.
-Sari Artists Film Productions Sdn Bhd V Malaysia Film Industries Sdn Bhd [1974] 2. P must show that damages wouldn’t be an adequate final remedy; and
H: Granting of an injunction is a discretion of the court, it is essential that the party asking 3. The interim relief is justified on the balance of inconvenience (an evaluation of degree of
the court to exercise its discretion makes available to the court all facts which might be harm either party might suffer if the injunction is not granted.
material for the consideration of the court before exercising its discretion b. Perpetual
-Works in personam, against the person itself. -A perpetual injunction is granted at the end of the action and settles the dispute between
-Public interest will be taken as consideration in granting injunction the parties. It may last indefinitely.
-Application must be made in High Court -> conferred by Court of Judicature Act 1964 -Sec 51(2), 52(3)
B. Jurisdiction of Court: Discretionary Remedy -Condition:
Chase Perdana Bhd v Pekeliling Triangle Sdn Bhd & Anor [2007] i. Injury must be continuous
FC:“…it is trite law that decision to award an injunction is a matter of discretion of HC & Martin v Nutkin (1725)
CoA shouldn’t overrule that discretion unless it can be shown that HC had incorrectly F: P were annoyed by the daily ringing of a church bell and later the Church entered into
exercised its discretion” an agreement with P not to ring the bell during the lives of the P, as long as P provided the
C. Type of Injunction church with a new clock and bell. The Church rang that bell in breach of the agreement
1. Purpose and the P went to court seeking a perpetual injunction.
a. Prohibitory b. Mandatory: Sec 53 H: Court granted a perpetual injunction because this was a continuing nuisance.
-An injunction which forbids the doing or - An order directing D to do something to
continuation of an act repair an omission or to restore the prior ii. If App applies for an injunction in respect of a violation of a CL right, and the existence of
-Eshwara Engineering Sdn Bhd v Delta position by undoing a wrongful act. that right or the fact of its violation is denied, he must establish his right at law
Structure Sdn Bhd [2003] -TSC Education Sdn Bhd v Kolej Re v (A MINOR) [1996]
F: Contract bet. P & D was subsequently Yayasan Pelajaran Mara & Anor [2002] F: A cerebral palsy child sought declarations that, when he attained his majority, he should
terminated by P. P filed a suit against D for H: A close scrutiny of this sec reveals that be entitled to choose where he lived and with whom he associated. The mother was over-
recovery of the debt and at same time, filed there is a condition to be fulfilled before protective towards the child, which led her to resent attempts by professionals to advise
an app to restrain D from preventing P from court can compel performance of certain and help her and the child. The local authority became concerned about the situation and
removing P’s materials which were still at acts in order ‘to prevent the breach institute care proceedings, which resulted in a supervision order being made. The child
D’s worksite and was being used by D's complained of’. Court cannot compel a D to also sought injunctions against his parents, preventing them from interfering with his
other contractors. perform an act which would ultimately be exercise of those rights. The Official Solicitor was invited to act on the child's behalf. The
H: Such an injunction forbade the initiation ultra vires their constitution. child's applications were supported by the local authority.
or continuance of some act or state of -Tinta Press Sdn Bhd v Bank Islam 3. Modern Type of Injunction
affairs and was a preventive and protective Malaysia Bhd[1987] a. Mareva
remedy, aimed at future act H: This sec provides that court’s power to -To restrain a D from disposing or otherwise dealing with any of their assets within the
grant a mandatory injunction is jurisdiction of the court
discretionary. By judicial process, power is -Mareva v. International Bulkcarriers Ltd [1980]
extended to grant of an interlocutory H: An injunction was granted to restrain the defendant from improperly disposing of his
mandatory injunction before trial. However, assets or concealing or moving them abroad for the sole purpose of defeating an action
such discretion must be exercised and an against him.
injunction granted only in exceptional and -Metrowangsa Asset Management Sdn Bhd & Anor v Ahmad b Hj Hassan & Ors
extremely rare cases. [2005] 1 MLJ 654, the High Court granted an injunction to the plaintiffs to restrain several
2. Time defendants from dealing with their assets, both within and outside Malaysia, on the
a. Interlocutory/Temporary premise that the defendants had allegedly embezzled a sum of approximately RM125
-Granted before the end of the case to maintain status quo, if there were serious questions million belonging to the plaintiffs’ clients,
to be tried.
-Sec 51(1) SRA -Condition: Only granted if satisfies the 3-fold test
-American Cyanamid Co v Ethicon Ltd[1975] (a) Whether the applicant has an arguable case ?;
F: P (owner of a patent) sued D for infringement of the patent of a suture (stitches). P (b) The respondent has assets within jurisdiction ? and
applied for an interlocutory injunction which was granted in the (c) Is there a risk of dissipation?
 Law and Equity @amerhaiqal_

-Issue: Extra territorial
The court may grant world-wide Mareva injunction if -
i. Special circumstances of the case satisfy such an exceptional order
ii. The order is capable of being effectively enforced
iii. It doesn’t conflict with the ordinary principles of international law
b. Anton Piller Order
-Def: A court order which requires D in proceedings to permit P or his or her legal
representatives to enter D's premises in order to obtain evidence essential to P's case.
-Precondition: Anton Piller KG v Manufacturing Processes Ltd [1976]
F: P sued D because of alleged leaks of copyright info to competitors. P claimed that D
was secretly communicating with other German manufacturers & giving them confidential
info regarding P’s new frequency converters for computers. To prevents disposal of docu
relating to P’s machines or designs by D before discovery proceedings of an action, P
applied ex parte for interim injunctions to restrain D from infringing on their copyrights &
disclosing confidential info & an order to enter the D’s premises to inspect all such
documents & to remove them into P’s solicitors’ custody
H: i. Extremely strong prima facie case against the D.
-Just strong enough to warrant going to trial
ii. Damage, potential or actual to P Is great
-There was a huge possibility that there would be damage if competitors obtained
copyrighted info especially at the time. AP was going to market with some new innovations
iii. Risk of Destroying Evidence
-There was grave danger that evidence of providing information to competitors would have
been destroyed if notice of the application was given
-Basic Requirement (among other): Arthur Anderson & Co v Interfood Sdn Bhd [2005]
i. D has in its possession the relevant docu and/or materials being sought for and that
there is a real possibility that D may destroy such documents and/or materials,
ii. Applicant required to make a full and frank disclosure.
“It is to be noted that the nature of injunction sought for by P is a quia timet injunction. A
quia timet injunction is normally granted to prevent a wrong or damage being done….a
quia timet injunction will be granted as there is proof of imminent danger to P even if no
actual damage is proved and the apprehended damage will be very substantial”
d. Erinford
-Def: An order granted to P who had failed, at first instance, either in his main action or in
his application for an interlocutory injunction, and had appealed against the said decision
-Consideration/condition: Erinford’s case:
i. Whether applicant has made out a sufficient case to have R restrained pending the trial
ii. Whether P has sufficiently proved his case
iii. Whether judgment that has been given is one on which the successful party ought to be
free to act despite the pendency of an appeal
iv. The possibility that the judgment may be reversed or varied
-Case: Celcom (Malaysia) Bhd v Inmiss Communication Sdn Bhd [2003]
F: P applied for an Erinford injunction to restrain D from taking further steps in Winding up
Petition pending hearing of the P's appeal to CoA against the decision made by HC
dismissing P's application in for an injunction to restrain D from filing a winding up petition
against P.
H: HC: Although court had earlier dismissed P's application for an injunction, it still had
jurisdiction to hear the application for an Erinford injunction and to grant the same. The
consideration for the granting of the Erinford injunction was diff from consideration under
the application for an injunction and there was nothing inconsistent for the court to grant
prayers notwithstanding decision dismissing injunction.
Refusal of Injunction
-Sec 54 SRA

-Issue: Self Incrimination

PMK RAJAH v. WORLDWIDE COMMODITIES SDN BHD & ORS [1985]
H: A person served with an Anton Piller order, is not subject to cross-examination or re-
examination hence they do not fall within the meaning of the word "witness" in sec 132 of
the EA. In other words, sec 132 doesn’t apply at all to discovery in respect of an Anton
Piller order. A D served with APO is not a witness & have the right to refuse such
request.
c. Quia Timet Injunctions
-Def: When you’re asking for an injunction even before a breach. Court must prove
probability of substantial damage. If D allowed to continue the case, it would bring
irreparable damage to P.

-Element: Rinol Malaysia Sdn Bhd v Mbt (M) Sdn Bhd [2002]
F: D issued a notice demanding payment from P. P applied for an injunction to restraint D
from presenting a winding-up petition against it pursuant to the said notice.
H: P has a valid cause of action against D. Unless D is injunct from commencing winding
up proceedings against P, P will suffer irreparable damage and harm to its reputation and
business.
 Law and Equity @amerhaiqal_

Specific Performance -Where there will be no money to compensate for non-performance: 11(b)
A. Introduction -Monetary compensation for non-performance is not an adequate relief: 11(c)
-Def: “ An order of the Court directing a party to a contract to perform his obligations there -No standard to determine damages for non-performance of the contract: 11(d)
under according to its terms.” -Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor[1993]
-SP is a discretionary remedy. H: Sec 11(1)(b) & 11(2) was applied in this case where breach of contract can’t be
B. General Characteristics adequately relieved by compensation in money, therefore the court granted the
1. SP is discretionary 2. SP a remedy in personam application for SP
-Sec 21: Discretion as to decreeing SP - Penn v Lord Baltimore
-Ganam d/o Rajamany v Somoo s/o H: SP of an agreement was decree, ii. Sec 11(2): Presumption raised in Contracts to Transfer Land
Sinnah[1984] even though the subject matter was -Loh Koon Moy v Zaibun [1978]
FC a court may exercise a discretion in granting/ not in England but in North America. F: R, an administratrix of an estate, had at first, agreed to sell some land to A. Later, R
withholding a decree of SP; & in the exercise of Parties were before the Court and refused to proceed with the sale on the ground of an alleged oral agreement allowing
that discretion, the circumstances of the case, the can be compelled to perform the damages to be paid for breach of the agreement. A refused to accept damages and sued
conduct of the parties & their respective interests said contract for SP.
under the contract are to be remembered H: SP allowed as R had not in any way rebutted the presumption raised in sec 11(2).
3. Awarded only if damages are not an adequate remedy D. When Cannot Grant SP: Sec 20
-Adequacy of damages also depend upon the particular type of subject matter involved: i. Sec 20(1)(a): Where non-performance can be adequately relieved by money
i. Contracts for personalty/chattels: Generally, be limited to a remedy in damages, -Relief Payment of money is not to be regarded as specific relief under SRA
particularly if the chattel involved is of an ordinary, domestic or commercial nature and ii. Sec 20(1)(b)
easily replaced. -Reason: Enforcement need constant supervision & difficult to enforce such trust
-Dougan v Ley -Dayang Nurfaizah v Bintang Seni S/B & Ors. [2004]
F: A contract for the sale of a taxi which was worthless without the licence. F: R/ship betw P and D, her manager turned sour. Later, P filed a suit against D seeking
H: The court found that as the licence was hard to obtain, damages would not that management agreement was invalid on the ground of UI. D counter-claimed alleging
compensate, and ordered SP. breach of contract and applied for an injunction restraining P from appointing anyone else
to act as her manager.
ii. Shares & stocks: contracts for the sale of shares and stocks may be enforced if the H: The management agreement is in essence a contract to render personal services and
shares are not readily available in the market. However, if it’s possible for anyone to thus by reason of s.20(1)(b) SRA is not enforceable. SP was not granted.
purchase the shares, P will generally be left to a remedy in damages.
-Duncuft v Albrecht iii. Sec 20(1)(c): Where terms of the contract are vague
H: SP of an agreement for sale of railway shares which were limited in number and not iv. Sec 20(1)(d): Revocable contracts
always in the open market. If the shares in question can be easily obtained from the open v. Sec 20(1)(e): Contracts in excess of trustees’ powers or in breach of trust
market, so that loss can easily be quantified in money, the court will not grant SP vi. Sec 20(1)(f): Contract made by a corporation/public company created for special
purposes, which is in excess of its powers
iii. Contract of Realty/Land: SP will generally be awarded whatever the nature of the estate vii. Sec 20(1)(g): contract, the performance of which involves a continuous duty extending
or interest. Each piece of land is considered to be unique; an award of damages is usually over a longer period than 3 years from its date
inappropriate because monetary relief cannot replace the actual form of the land and is not viii. Sec 20(1)(h): ) Contract where subject matter supposed by both parties to exist, has
an equivalent substitute. before it has been made, ceased to exist.
-Loan Investment Corp Of Australasia v Bonner [1970] E. Defences to SP
H: No two pieces of land can be identically situated on the surface of the earth. When a Unfair Advantage: Sec 21(2)(a) Hardship: Sec 21(2)(b)
buyer purchases a parcel, no other piece of land, or the market value of the chosen land Saad bin Marwi v Chan Hwan Hua & Falcke v Gray (1859)
can be considered a just substitute for the failure to convey the selected land Anor[2001] H: SP of an option to purchase rare
4. Damages may be awarded in substitution for, or in addition to specific performance COA: Lower court should have concluded that China jars at a price 80% below
-Claimant who has been awarded SP by the court can later rescind it agreement betw parties was an unconscionable market value was declined on
& claim for damages with the leave of the court. bargain & this would have resulted in agreement grounds of
-When SP couldn’t be carried out for whatever reasons not being enforceable either at CL by an award of hardship to D. Contract was for a
-Sec 18(1) damages or by a decree of specific relief in equity. rare and special chattel, court had
-Sec 19 Further A was also entitled to have R’ action jurisdiction to
C. When can grant SP: Sec 11 dismissed on the ground of the R’ laches award SP but hardship to D led the
i. Sec 11(1) : court to refuse the grant of relief in
-To perform a trust: 11(a) the exercise of its discretion.
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