Anton Piller Order

- An order to Df to give permission to Pt for entry and inspection

- purpose is to prevent the removal/ destruction of evidence before trial

Halsbury's laws of Malaysia

High Court has an inherent jurisdiction to make an order requiring the Df to permit access to
his premises to look for and allow evidentiary material / documents to be removed pending
trial.
court is allowed to grant Pt ex parte relief. Evidentiary materials will be kept in the custody of a
responsible person on behalf of the plaintiff. The purpose of this order is to prevent destruction
of evidence

*Anton Piller KG v Manufacturing Processes Ltd

The Pt manufactured and supplied computer components through the Df, its agent. It had
reason to suspect that the Df was disclosing its trade secrets to competitors. Pt applied for an
order for permission to enter the Df's premises to inspect all such documents and to remove
them into the Pt solicitors' custody. This was rejected. Pt appealed

HELD: Allowing appeal. When Pt had a very strong prima facie case, actual or potential damage
to them was very serious and there was clear evidence that Df possessed vital material which
they might destroy or dispose of so as to defeat the ends of justice, court had inherent
jurisdiction to order Df to "permit" Pt' representatives to enter Df' premises to inspect and
remove such material before any application inter partes could be made.

Anton Piller order only authorizes entry and inspection by the permission of Df. Pt must get the
Df's permission. The result is that if they do not give permission, they are guilty of contempt of
court

 Elements
1. Pt need to show a strong prima facie case
2. serious potential/ actual damage to the Pt
3. clear evidence that Df has the material
4. real possibility that Df may destroy such material before trial

*Universal Thermosensors Ltd v Hibben

HELD: this order can be abused. Further requirement in granting the order:

i. order must normally contain a term that before complying with the order, the Df may
obtain legal advice
 ii. the execution of order is restricted to working days and normal working hours
Ex: in this case, Df was alone in her house with her children. A stranger knocked her door at
7.15am saying that he had a court order requiring her permission to enter
iii. the order cannot restrict Df from communicating with a legal advisor. But may contain an
injunction to restrain Df from informing others about the order for an appropriate amount
of time
iv. order should not be executed at business premise without the presence of a responsible
officer/ representative of business except there is a good reason to do so
v. order should expressly provide a detailed list of the items being removed at the premise
before the removal. Df should be given an opportunity to check the list
vi. if the order executed at a private house, where a woman may be in the house alone,
solicitor serving the order must be a woman/ accompanied by a woman
vii. things that court should consider in implementing the order:
 execution of order should be supervised by a solicitor who is not from the firm
representing Pt
 the solicitor should be suitably experienced in the execution of Anton Piller order
 solicitor should prepare a written report as to what transpired in the execution of order
 a copy of the report should be given to the Df
 Pt is to present the report in the inter-parte hearing

Rectification

- a discretionary equitable remedy

- in the situation where the instrument in writing does not truly express their intention,
either party/ representative in interest may rectify
- purpose is to correct failure of expression

*Crane v Hegaman-Harris Co
HELD: agreement does not have to be concluded. The important aspect is a common continuing
intention in regard to a particular provision of the agreement

- s. 30 - when there is fraud/ mutual mistake of parties, contract does not represents their
intention, either party can apply for rectification
- s. 31 - court must be satisfied that all parties intended to continue the contract
- s. 32 - court may enquire what is the intention, legal consequences of contract

 Element
1. fraud/ mutual mistake
 - mutual mistake - court concern about what the parties have actually agreed at the time
reaching their agreement

*Lim Hong Shin v Leong Fong Yew

HELD: mistake must be common to all parties. There must be clear evidence of real intention

*Tham Kong v Oh Hiam

HELD: Mistakes may be classified into: (1) common mistake - both parties make the same
mistake, Each knows the intention of the other and accepts it, but each is mistaken about some
underlying and fundamental fact;
(2) mutual mistake - parties misunderstand each other and are at cross-purposes;
and (3) unilateral mistake - one only of the parties suffers from some mistake.

*Oh Hiam v Tham Kong

The Pt (seller) and Df entered into a contract for the sale of 7 lots of land which certified in the
written agreement as rubber land. It was also included in the contract that Lot 3660 which
stood a house stayed by Pt and his family. 
After all the lands were transferred and registered, Pt started proceedings with reasons that Lot
3660 was not intended to be part of the agreement and was included by mistake. 
Rectification was sought and a retransfer of the lot against repayment of its purchase price.

HELD: contract did not mention about transferring a tenant house but only rubber lands.
Neither the Pt nor Df knew when the contract was signed it includes Lot 3660.

For land related contracts, sufficient evidence must be adduced to indicate the intention of the
contracting parties

* Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd

Pt was asked to supply ‘up to five hundred tons of Moroccan horsebeans described here as
feveroles’ to an English firm in Egypt. Pt asked Df what feveroles were. Df replied ‘feveroles
means just horsebeans’.

They contracted for the supply of ‘horsebeans’. Both believed horsebeans were feveroles. The
English firm had a claim for the wrong beans being delivered, and Pt brought a claim against Df.
to rectify the contract to replace ‘horsebean’ with ‘feverole’

HELD: this was not a claim for rectification because that is concerned with contracts not with
intentions. In order to get rectification, it is necessary to show that the parties were in complete
agreement on the terms of their contract, but by an error wrote them down wrongly.

*Tay Tho Bok v Segar Oil Palm Estate Sdn Bhd

Df is the owner of land knew some part of land were used for piping works. This was not told to
the Pt. Pts argued that Df had dishonestly concealed relevant material facts from them and had
misled them into believing. Pt claimed for rectification

HELD: Df knew the existence of these structures before signing the agreement. Pt was misled
and entered into the contract amounting to fraud under s.17 of Contracts Act. Ordered
rectification.

The court is concerned with what the parties had actually agreed, not what they would have
agreed under the mistake

*Riverlate Properties v Paul

A landlord mistakenly inserted in a lease a lower rent than he had intended to demand

HELD: rectification was not entitled as the lessee is not aware of the mistake. Where the
mistake is unilateral due to fraud, rectification is an appropriate remedy. If the Df is not aware
of the mistake, rectification must not be allowed

2. does not truly express their intention

* Zakaria Daud v Siti Hussin

It was contended that a common mistake had resulted in the wrong plot of land being
transferred by the Df to the Pt

HELD: rejected. Instrument must have failed to record the true intention of the parties

*Yuson Bien v Bankers Trust Co Ltd

the Res had obtained a court order for the sale of all the immovable properties of the estate.
The valuation of properties shows that 2 lots had been sold.

The App had agreed to buy the properties belonging to the estate. In the draft agreement the 2
lots were included by mistake but subsequently they were deleted and the agreement was
signed. Later it was discovered that only part of the lots had been sold and that the two lots still
belonged to the estate. The trial judge dismissed the claim of the appellants and they appealed

HELD: no equitable ground for making an order of rectification. A common mistake of fact does
not substantially represent the real intention of the parties. There must be a common and
continuing intention. The burden of prove lies upon the applicant. If the negotiations leading up
to the execution of the written instrument were vague and inconclusive, so that it is impossible
to ascertain what the parties really meant

3. clearly proved
*Crane v Hegaman-Harris Co
HELD: the burden to prove if a heavy one. The assumption is that the instrument does
represent their real intention. The burden to prove is beyond reasonable doubt

4. without prejudice

*Lyme Valley Squash Club v Newcastle

HELD: court will not order rectification as to prejudice a bona fide purchaser for value without
notice

*Beale v Kyte
HELD: delay on the part of claimant may generate bar to his claim

5. specific performance
- s. 33 - may first apply for rectification, and next SP

Rescission

- a right of a party to set aside a contract and be put in their original position
- applies in voidable contract
- 3 roles of equity
o equity may set aside a contract otherwise valid at common law
o equity may effect what is necessary (Ex: enquiry)
o equity can grant relief
- s. 34 - person who has interest in contract may in writing ask for rescission if
(a) it is a voidable contract
(b) contract is unlawful
(c) SP of contract of sale has been made but purchaser does not comply with it
- s. 35 - rescission cannot be used for mere mistake
- s. 36 - Pt applying for SP may apply for rescission as alternative if SP cannot be granted
- s. 37 - upon granting rescission, court may require Pt to compensate Df if necessary
- s. 38 - cancellation of agreement
- s. 39 - may allow cancellation of part of agreement and perform the remaining
- s. 40 - upon granting cancellation, may ask Pt to compensate Df