Tutorial 8 Week 13

1. Discuss the position of contracts which may be specifically enforced under the Specific Relief
Act 1950. Support your answers with decided cases. (4 situations and 4 cases, introduction and
conclusion)
Section 11 Specific Relief Act (SRA), provides for the types of contracts which may be
specifically enforced. In s11 (1)(a) a contract which may be specifically enforced when the act
to be done is in the performance of, wholly or partly, of a trust.
In Section 11 (1)(b) SP will be granted if there is no standard for ascertaining damage. In Gan
Realty Sdn Bhd. & Ors v Nicholas & Ors, HC granted the plaintiff SP of a sale and purchase
of shares agreement because they were unavailable in the open market. HC could not ascertain
the actual loss due the non-performance by defendant. In contrast, in HA Securities Sdn. Bhd.
v Ng Kong Yeam, HC refused to grant SP for a similar agreement because the said shares were
available in the open market, and the shares were traded before and its values were known
before the plaintiff made its demand.
Section 11 (1)(c) SP will be granted if monetary compensation is inadequate. In Lim Sin Oo &
& Ors v Cheah Tjeng Siong, In this case, the plaintiff agreed to sell his landed property to the
defendant. Pursuant to the agreement to sell the property, the plaintiff terminated 3 existing
tenancies in the building and paid compensation to the tenants. He also terminated his own
business at the said premises. HC granted SP for the above reason. In Seet Soh Ngoh v
Venkateswara Sdn Bhd, HC held that where a housing developer breached the contract with
the purchaser, damages would be an inadequate remedy because of the appreciation in the value
of land and the cost of construction. Thus, the decree of SP for delivery of the house in favour
of the plaintiff. (Specific Performance)
Section 11(1)(d) SP will be granted when it is probable that pecuniary compensation cannot be
got for the non-performance of the act agreed to be done. Monetary Compensation
Section 11(2) of the Specific Relief Act provides the presumption that money cannot provide
inadequate relief for immovable property thus SP should be granted. In Zaibun Sa bte Syed
Ahmad v Loh Koon Moy & Anor, the respondent (Purchaser) applied for SP to direct the
appellant (vendor) to transfer the land to him as agreed under a sale and purchase agreement .
There was also an oral agreement that the vendor should pay RM5000/- to the purchaser if the
vendor breached the agreement. The trial judge opined that the existence of this oral agreement
showed that money was an adequate relief. HC refused to grant SP and granted damages to the
respondent. On appeal to FC, FC granted SP; and on further appeal to PC, PC affirmed FC’s
decision. (land property, immovable property, transfer of property, cannot be compensate in
momney, only for transfer)
Reference was made to ss11(1)(c), 11(2) and 19 that liquidation of damages is not a bar to SP.
The land is important to the respondent because he was conducting mining operations at the
adjacent land. Thus, oral agreement providing for liquidated damages did not prevent the
granting of SP in this case. In Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd, application of s11(2)
of SRA was significant to a purchaser who failed to pay the balance purchase price for the
purchase property. The vendor sued for the SP that the purchaser complete the purchase and
pay the balance of the contract price as agreed. HC granted an order in terms of the respondent’s
 (vendor) application. The appellant (purchaser) appealed to the Supreme Court, but it rejected
the submission and ordered the appellant to complete the purchase of the land.
2. Where Specific Performance is insufficient, the court my award damages, in addition to SP.
Explain.
Under Section 18 of the Specific Relief Act, the Court is empowered to award compensation
in certain cases. In a suit for specific performance, the plaintiff may ask for damages in the
alternative or in addition to specific performance of the contract. The Court's power to award
damages in a suit for specific performance is laid down in Section 18. Where circumstances
did not allow the award of SP, the court will award damages in lieu(LIU) of SP.
S18 (1) SRA provides that an applicant suing for SP of a contract may also ask for
compensation for its breach. The plaintiff must apply for SP in the first place, as the
compensation is in lieu of SP. In Lee Hoy & Anor v Chen Chi, there was a SPA for 9 acres of
land but when the document title was issued, it only stated 5.281 acres. The purchaser applied
to rescind the contract based on misrepresentation. HC dismissed the application on the ground
that there was no misrepresentation but awarded compensation under s18 (3) SRA. On appeal,
FC held that compensation under s18 (3) could only be awarded if there was a claim for SP.
S 18(2) provides for compensation in lieu for SP. If the court decides that SP is ought not to be
given, but there is a breach of contract by the defendant, and the plaintiff is entitled
compensation for that breach, the court would award compensation accordingly. In Lee Sau
Kong v Leow Cheng Chiang, CA, the CA refused to grant an order for SP which would involve
constant supervision by the court. Thus, the court awarded damages in lieu of SP based on the
difference between the market price and the contract price of the scrap iron.
S18(3) SRA provides for compensation, in addition, to SP. If the court decides that SP ought
to be granted, but it is not sufficient to satisfy the claims, and that compensation for the breach
of contract should also be made to the plaintiff, the court would so compensate accordingly. In
Quah Ban Poh v Dragon Garden Pte Ltd, HC had granted the plaintiff’s application for SP of
a SPA of a house. The court ordered the defendant to surrender the document of title and
transfer the house to the plaintiff, and also awarded damages for the incomplete work and
defects in the said house under s18 (3)SRA.
S18(4) SRA provides that compensation awarded under s18 may be assessed in such a manner
as the court may direct.
3. Cahaya Construction completed the construction of a single terrace house built for Mr Haidar
pursuant to an agreement. Upon entering the house, Mr Haidar noticed that the house was not
built according to specification and some of the work was defective. The flooring in some part
of the kitchen was cracked. Furthermore, Cahaya Construction failed to put a partition wall
between the kitchen and the living room. Therefore, Mr Haidar refused to pay the balance of
the purchase price which amounts to RM80, 000.00. Cahaya Construction claimed the balance
of RM80, 000.00 and late payment of RM10, 000.00. Furthermore, Cahaya Construction
refused to repair the defective until Mr Haidar makes the payment of the balance purchase price
and the late payment. (it is divisible contract as RM8000 is trial amount. If construction moved
onl once, is entire contract, if construction moved more than one time, is divisible contract.)
Advise whether there is any relief of specific performance to be granted by the Court. ( if no
mention advice who, must advice both parties.)
1. Whether the contract between Cahaya Construction and Mr Haidar may be specifically
enforced.

Section 11 (1)(c)- SP will be granted if monetary compensation is inadequate. (不可以用这个

section) use s16 to enforce the contract, if cannot enforce use 20(1)1(a)
In Seet Soh Ngoh v Venkateswara Sdn Bhd, HC held that where a housing developer breached
the contract with the purchaser, damages would be an inadequate remedy because of the
appreciation in the value of land and the cost of construction. Thus, the decree of SP for
delivery of the house in favour of the plaintiff.
When applying to the current case, damages would be an inadequate remedy for the defective
construction of the house built for Mr Haidar. Hence, Mr Haidar is able to obtain the decree of
SP from the court.
2. Whether Mr Haidar is entitled to obtain the decree of SP to complete the consruction
S13 SPA states that if the part which must be 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 SP of so much of the contract as can be performed, and award compensation in money
for the deficiency.
By applying this section to the current case the floor cracked in the kitchen and the failing to
put the partition wall between the kitchen and the living room may be the small proportion to
the whole in the value. Mr Haidar may insists for specific performance (SP) on the contract
itself to the court to order the defendant to fulfill his obligations and perform the terms of the
contract as agreed.

Issue 可以一个赞同一个不赞同
Specific relief act important in remedies, injunction, and blab bla bla
3. Whether Cahaya can obtain the decree of SP for the payment and late payment from
Mr Haidar