1. explain the origin and development of equity in English law. .

Initially, the common law system offers remedy but it is only limited for damages. This
inadequacy of cl remedies pushed people in England demanded for a more flexible law
especially in granting remedies which is not only monetary remedies. Claimant obtain
discrepancy remedies by petitioning the king who had the residual judicial owner to deal
with such matters. The king delegated the functioning pf dealing with such
petitions to chancellor. Later this evolved into a judicial body known as the courts of
chancery- Equity acts as an appendage to the general principle in the common law. Later, by
the introduction of courts of judicature act 1873-75 it had fused the administration of
common law and equity rules under one court (Supreme Court of Judicature).
This act had brought the 2 court (cl and equity) together under SCOJ. This allows
the court to hear claims for common law or equitable remedies. In section 25(11) of
this act, if any conflict with common law and equity on the same matter , equity shall
prevail. This principle been adopted, from the Earl of oxford’s case.
- Sir Anthony Mason:
“The rules of equity concerns with standards of conscience, fairness, equality, and its
approach to the relationship of trust and confidence and grant of relief are different to the
rigid common law system. It caters flexibly to the needs of democratic society”

2. Distinctive the relationship between the jurisdiction of the common law courts and the
courts of chancery is described by professor maithland’s statement. Discuss.
Common law was a self sufficient system but equity was not. Equity is a set of rules which
existed side by side with the common law. In earl of Oxford’s case (1615) it was held when
there is a dispute between common law and equity in the same matter then equity should
prevail. However this does not mean, equity overrides common law always. It certain
circumstances when common law is applicable then cl will be applied. Common law will be
applied in circumstances when there is a breach of contract caused by negligent or fraud.
Thus damages will be awarded as the remedy.
However, the party that bring a claim should be the contracting parties only (no third party
can be involved or claim remedy). Whereby, in the courts of chancery offers remedies which
is not just monetary but also the actual performance which was promise to be done
( when there is a breach of trust – might not be the contracting party and can be a third
person- must prove the court that a trust was created) such as tracing of property and claiming
property in in insolvency. This court was based on conscience and chancery acted in
personam ( acted on person) –ex compensating, specific performance, rescission, account/lien
and specific restitution

3. equity does not destroy the law, nor create it, but assists it. Discuss.
Equity exists side by side by with common law. Common law was rigour. It fails to give
adequate remedies in certain circumstances as only monetary remedies was allowed. This
was insufficient. So equity came in and fills the holes or In other words it cover s the
weakness of common law by granting more remedies (non-monetary). Equity had mollify
and mitigate the harness of common law. But it never destroy the common law, as equity
came in when the cl fails to give a sufficient remedy and prevent unconscionable behaviour/it
came in to prevent any innocent party to fail gaining remedy. Equity assist common law in
areas which it is weak. Since common law is a very strict law, it was not flexible and it does
not develop by time according to the modern days. It had only been following the precedent,
however equity was very flexible and based on conscience it had evolved time to time to
provide justice. It was the recent law and depends on the case basic according the case’s
circumstances.
Mcghee’s: equity had a duty to correct or itigate the rigour and in what proper sense equity
may determin the injustice of common law
Mr justice blackstone: that is the business of a court of equity in England, to abate the rigor
of the common law.
- Equity has wider categories of remedies compared to common law which means that it also
assists the common law in serving justice to the people. It is collateral to the general rule of
common law.
4. explain the main objective of the judicature acts 18730-75.
- The main object of the Judicature Acts 1873-75 is to combine the administration of the
common law and equitable rules.- This Act established a new Supreme Court of Judicature, it
had fused the administration between the common law and equity in each court so that a
complete remedy could be granted. In section 25(11) of this act, provided that if there’s a
conflict between the common law and equity, equity shall prevail. This has been adopted
from the earl’s oxford’s case (1615). Now the court have the jurisdiction to grant remedies
either for common law or equity and it was not like the previous rigid system. This fusion had
removed the physical separation between cl and equity but the intellectual
distinction between cl remedies and equitable remedies remained as the are.
>Newsbiggins Cias Go v Armstrong
Cl is applied as it was more practicable to the facts of case. Cl procedure still applies in the
combine Supreme court of Judicature.
> salt v Cooper
Procedure to be followed as cl.
> Job V Job
Under common law as soon as a person dies the executer of the will stands in the place of
the testator. Any loss suffer by the property then the executer of the property will be
responsible. However in equity, if any loss comes to the property while it is under the
executer’s responsibility, he will be only liable if the loss to the particular property is caused
by his own wilful default and he would not be liable for the loss that occur out of his control.
In this case, the court had applied the rule of equity-
*the rule of equity is now the the rule at law*
> Berry V Berry
The husband and wife have separated. The husband had agreed to pay an agreed sum to the
wife. The husband asked the wife so a lesser sum can be paid and this had been agreed by the
wife. Later, the wife changed her mind and asked for the initial sum that had agreed upon in
the sealed agreement. The issue infront of the court was which one agreement is a valid one-
the sealed dead or verbal agreement. The court applied the rules of equity and held that the
agreement does not have to be a sealed deed.
5. “there is only one court and the equity rules prevail in it”- per Jessel m in walsh v
londsale. Explain. Also illustrate the statement with reference to the facts and decision of the
same case.
Facts of the case: the defendant, londsale agreed to grant the lease of a mill to the claimant
for 7 years. The rent was to be paid quarterly I arrears with a year’s rent payable in advance
of demanded. The parties did not execute a deed for the grant of the tenancy but the claimant
moved in and paid rent quarterly in arrears. Later the defendant demanded a year’s rent on
advance and the plaintiff refused to pay.
Held: the court found in favour of defendant (landloard).
Since the judicature act 1873-75 had fused the two separate courts under one roof. According
to section 25 of this act in conflict between common law and equity in the same matter in the
same matter than equity shall prevail. This had been applied in this case by emphasis by loard
Jessel “there is only one court and the equity rules prevail in it. The tenant holds under an
agreement for a lease. he holds, therefore, under the same terms in equity as if a lease been
granted, it being a case in which both parties admit that relief is capable of being given by
specific performance. That being so, he cannot complain of the exercise by the landlord of
the same rights as the landloard would have had if a lease had been grante

2004 6 MLJ 1
2002 1 MLJ 33

6. explain and discuss the fusion debate in relation to the effect of 187-75 act on
the
development of common law and equity.
The act of judicature act had fused the administration of common law court and court of
equity( court of chancellery) under one roof. Since then it been debated whether the common
law and rules of equity had been fused. There are two different opinion on this particular
issue. 1st is that the common law and rules of equity had been fused under the acts of
judicature. Previously, common law court and equity court was operating separately. But
under this act the administration was fused. Thus, now the court have the jurisdiction to grant
an equitable remedy or a remedy under common law (section 24 of the acts of judicature). In
the case of united scientific holdings v burnley bc lord diplock held that “the courts of
chancery are no longer courts of equity.. they are fixed and immutable a the court of law ever.
This had clearly shown that courts of equity exist but have become one in the same with the
court of law.
sir George mr in re hallett’s estate state that just like the common law, equitable rules are
established but equity had altered and improved according to changes of time and needs of
people. This make the older precedents of less applicable/relevent to recent cases and so,
thcourts should take the most recent cases a templates rather the older cases. With this new
approach to equitable principles, it could make the application of equitable rules
more
flexible to modern legal issues.
After the act of judicature had introduced the supreme court of judicature, it was contended
that it had fused both laws, but to what extend/degree it had been fused was as second issue
to answer. Even after the courts had fused common law and equity, both laws have their
significance. Both laws were distinguishable from one another as they had
different
procedures and principles. The only thing combined was the administration of the two courts
but the rules and principle was still different. Here the ashburner’s principle make it clear that
both law are not indistinguishable “ the two streams of jurisdiction, tough run in the same
channel run side by side & do not mitigate their water”.
7. explain the significance and scope of section 3 of the same act On the reception of English
rules pf equity in Malaysia. What do you think is the effect of section 6 of the same act on
section 3?
Civil law act, section 3provides application of UK common law, rules of equity and certain
statues. In subsection 1, provides the general application of English law. But it also says
common law, equity and statues of general application is only applicable so far
as the
circumstances of the states of Malaysia and their respective inhabitants permit and subject
qualifications as local circumstances render necessary.
However, section 6 of this act prohibits/restricted any importation/application of
English law in matters regarding tenure and conveyance of immovable property. this is
to prevent further importation of English law to local system. This provision precluded
application of English law to prevent uncertainty/confusion in law. Section 6 seems to
contradict with section 3. In application, the English law is still applied in Malaysia
however it is subject to local customs/ laws and it not prevent further importation of any
new law. This restriction can bee seen in the case of United Malayan Banking Corp.
Bhd. v Pemungut Hasil Tanah Kota Tinggi. The issue in the case was whether English
equitable rules as to the relief against the forfeiture is applicable. The Privy
Council
dismissed on the ground that the words in section 6 should be interpreted in their ordinary
and natural meaning.. The NLC is already a complete and comprehensive code to regulate the
tenure of land in Malaysia. Thus, there is no room for the importation of English law, except
in so far as the Code itself may expressly allow it. in the case of Bagher Singh v Chanan
Singh & Anor was also shared the same view as united Malayan banking corp but in a looser
manner. The court held that common law could still be applied if there is lacuna in the law
subject to the applicability of the local circumstances. But, since the section 42 of the FMS
Land Code clearly provides for matters regarding fraudulent disposition of land, common law
is not applicable in this case.
In the case of templeton v low yat holdings sdn bhd the court allows the application of
equity whenever there is in need for it.
Notes: equity based on conscious- what is right based on objective standard.
unconscionable
Maxims of equity
1. what are maxims of equity? What are their significance and functions.
- maxims of equity are general principles which guide the court in exercising its jurisdiction.
This set of principle does not cover the whole aspect of equity but each maxims embodies
some special/peculiar function of equity. Maxim of equity are not positive laws to be applied
literally but rather as principles which can be discerned in many of the detailed rules which
equity has established.as it been developed on case by case basis (discretionary). This either
not legally authoritive but they are descriptive and explanatory.
.
2. The maxims of equity do not cover the whole ground as it was not a complete system by
itself (haphazard: lacking obvious principle of organization). This is because this principles
had developed through case law( upon the discretion/conscience of the deciding judge) and
depends on the facts of cases. These principles are extracted from precedent and developed as
fundamental principles of equity. It is also agreed that these principles are overlapping. This
is because one principle is inter related to another. However each maxims have it’s own
function or significance.
3. maxims are not complete set of rules but they are guidelines. This rules mitigate the rigour
of the common law.
a) Equity will not suffer a wrong to be without a remedy
No wrong action should be do unredresses if it can be remedied by the court. The
wrong could be a wrong capable of judicial enforcement but was not enforced by a
court of law. This principle is the consequence of the circumstances where the
common law failed to give sufficient remedy. This maxim refers to the rights
which are suitable for judicial enforcement but were not enforced under
common law as the had some technical defect.
i. Enforcement of trust
This maxim is based on interference to enforce uses and trusts. When a
person transfer or conveyed his land to another person to hold for the use of a
third party based on trust. When the executer decided to keep the land for his
personal use or benefit then the third party who is entitled to the land will not
be able to claim for any remedy. But under rules of equity even the third party
is not apart of the contract or agreement he can claim for remedy.
ii. The auxiliary jurisdiction
The court of chancery had come with new procedures. As we know the court
of chancery had aided in the enforcement of their legal rights.
b) Equity follows the law
The court of equity will not over ride the statue, and it will follow the law unless
there are circumstances disregarded by the common law that warrants equity’s
intervention. However equity does not follow the law slavishly nor too much. Equity
would not interfere a man’s legal rights unless it would be unconscionable on his part
to take advantage on him. ex: a son agreed to divide his father’s property and hold
them on trust and after some time he refused to divide or delegate those property
accordingly then equitable rules will compel hi to execute his promise as his act was
against the conscience.
c) He who seeks equity must come with clean hands
A claimant must prove infront of the court that his transaction is clean or does not
involve any illegality. If the claimant’s action were fraudulent or unconscionable he
will failed to get an equitable remedy. A claimant must prove that his past records
does not involve any illegality.
i. Palaniappa Chettiar V Arunasalem Chettiar.
The defendant (father) had bought 40 acres of rubber land and by that time he
had already own 99 acres of rubber land which basically exceeded 100 acres
of rubber land. According to rubber regulations (no.17- 1934) it had made a
distinction between holding of 100 acres and more and holdings below 100
acres. To avoid his land being assessed by an Assessment Committee he had
transferred 40 acres to his son. Later the son refused to give the land back to
his father, in the court the father failed to get any remedy as his conduct was
to achieve a illegal purpose thus the estate lie where it falls.
ii. Suntaso Jacob V Kong Miao Ming
The appellant was an Indonesian and the respondent was a Singaporean. Both
were shareholders and director of a singapore company. The appellant holds
190,000 shares and the respondents hols 10,000 shared significantly.
Appellant wanted to buy a tug boat intended to be owned by the company.
Under the registrar of ships, Singapore, foreign owned ships would not be
accepted for registration and where a vessal was owned by a company
incorporated in Singapore it would be considered foreign-owned if half or
more of the issued shares owned by the foreigner. The appellant agreed to
transfer to the respondent 92,000 shares of the company which the respondent
would hold on trust for the appellant. Later when the appellant asked for his
shares back the respondent had refused to retransfer. The court held that the
appellant would not be entitled for remedy as his hands are soiled. The mamix
of he who seeks for equity must come with clean hands applied and the
appeal had been dismissed accordingly.
iii. Patel V Mirza
Mr Patel gave Mr Mirza £620,000 to place bets on a bank's share prices with
the benefit of insider information. The inside information did not materialise
and the intended betting did not take place. Mr Patel sought return of the
monies. Mr Mirza refused.Mr Patel issued a claim against Mr Mirza. Mr
Mirza contended that the claim should fail because of the illegality of the
arrangement with Mr Patel. The Court of Appeal dismissed Mr Mirza's
contention and ordered Mr Mirza to repay the money. Mr Mirza appealed to
the Supreme Court. Mirza sought to argue that the monies should not be
returned to Patel on resulting trust because Patel would have to rely on his
own unlawful conduct to establish his interest in the monies. Tinsley v
Milligan [1994] 1 AC 340was authority for the point that a party could not
seek to rely on his illegal conduct to establish an equitable interest in
property, as this would be against public policy. Patel argued the illegal act
had not been put into effect and there was, therefore, no justification to allow
Mirza’s unjust enrichment to persist. Further, he argued, it would be unjust to
allow one co-conspirator to keep all the monies. Allowing Mirza to keep the
monies would positively encourage the commission of such offences, since he
had profited and so deterrence as a policy argument in this context is
problematic. Patel was successful in his claim to recover the monies, despite
their having being paid to Mirza pursuant to criminal activities. The reliance
rule in Tinsley should no longer be followed. A claimant will not be prevented
from enforcing his claim to property because it was paid to perform an illegal
act, unless allowing his claim would be contrary to relevant public policy, or
it would be disproportionate to allow him to recover.” Discretionary approach
in order to take a just outcome.
- Tinsley v Miligen
As long as the person is not replying on the illegality- they claim was
based on the trust. This is because that not only one party should get the
win fall.
Contradicting case
iv. Sardara Ali V Sarjan Singh
The plaintiff and the defendant had practised a deceit on the public
admistration of the country in order to get a haulage permit for the vehicle.
The said vehicle was under the possession of the claimant and the defendant
had removed the lorry from plaintiff’s premise without his concern. The
claimant brought a claim under the tort law for trespass. He succeeded in his
claim as he was not relying on illegal transaction to support his claim.
d) He wo seeks equity must do equity
A person who requesting for equitable remedy must be ready to fulfil his obligations
towards the defendant.
Chapel v Times Newspapers Ltd
The employees of time launched a strike against the employer. The employer
therefore threatened to sack the employee. Did not get injustion a sthey refse to
do the equity
Wong chun wah v Kok Kam Chee
Lodge v national union investment co
e) Where there is equity the law shall prevail
Where the rights of borh party are the same, then the party with the right in law has
priority.
f) Where the equities are equal the first in time shall prevail
When equities are equal in the absence of any other factors that determines the right
between the parties, the first in time has priority.

Question 2
-This is because this principles had developed through case law
( upon the discretion/conscience of the deciding judge)
-Depends on the facts of cases.
-These principles are extracted from precedent and developed as
fundamental principles of equity.
-It is also agreed that these principles are overlapping. This is
because one principle is inter related to another.
-However each maxims have its own function or significance

Question 3
-This is because this principles had developed through case law
( upon the discretion/conscience of the deciding judge)
-Depends on the facts of cases.
-These principles are extracted from precedent and developed as
fundamental principles of equity.
-It is also agreed that these principles are overlapping. This is
because one principle is inter related to another.
-However each maxims have its own function or significance.
-Equity will not suffer a wrong to be without a remedy
-Equity follows the law
-He who seeks equity must come with clean hands
-He who seeks equity must do equity
-Where there is equity the law shall prevail
-Where the rights of borh party are the same, then the party with the right in law has priority.
-Where the equities are equal the first in time shall prevail
3. In holding that the Act of 1873 has brought about a fusion of common law and equity Lord
Diplock said: "After a century Professor Ashburner's vivid metaphor of two streams flowing
into one channel must have a different conclusion. It may take time before the water of two
confluent streams is thoroughly intermixed but a period has to come when the process is
complete."Do you agree with this statement? With reference to decided cases explain why
you do or do not agree with Lord Diplock.

The coming into force of Courts of Judicature Act 1873 had amalgamated the Court
and the Common Law courts into one Supreme Court of Judicature which was directed to
administer both law and equity. Since then, there has been ongoing debate as to “to what
extentcommon law and equity can be seen as fused?”. Here, Lord Diplock was of the view
that thewater of two confluent streams, which represents both the equity and common law,
will take sometime to thoroughly intermixed, but this process will eventually come to an end
and be complete. I cannot agree with the statement made by Lord Diplock as I am of the
view that although fusion did take place between the equity and the common law, especially
in terms of administration, thefusion did not and does not take place in every aspect. Plus,
section 25 of the Judicature Act 1873 clearly provided that in any situation where there is a
conflict between the equity and the common law, the former shall prevail. Since this principle
is still applicable until today, the relationshipbetween equity and common law cannot be one
of fusion. My rationale behind is that if two thingsare indeed united and become one, there
shall be no prevalence on either thing, as they are “one”.The following cases, which illustrate
the application of principle of prevalence, may strengthenmy point of view.

In the case of Walsh v Lonsdale, the defendant, Lonsdale agreed to grant the
claimant,Walsh, the lease of a mill for seven years, the rent to be paid quarterly in arrears
with a year’s rentpayable in advance if demanded. The parties did not execute a deed for the
grant of the tenancy,but the claimant moved in and paid rent quarterly in arrears. The
defendant then demanded ayear’s rent in advance which the claimant refused to pay. The
claimant argued that under commonlaw rules a lease had to be created by deed to be legal.
This had not been done, therefore the leasewas not legal. The Court of Appeal found in
favour of the defendant landlord by applying theequitable maxim “Equity looks on as done
that which ought to be done” in which the parties weretreated as having a lease enforceable in
equity from the date of the agreement to grant the lease.The court, at the end, emphasized
that, in any conflict, the rules of equity should prevail.
 In the case of Berry v Berry, a husband, under a deed of separation, covenanted to pay
hiswife a certain allowance. Later, the parties made an agreement in writing, not under seal,
reducingthe allowance. An action was subsequently brought by the wife to enforce the
original terms of thedeed of separation. Her action was dismissed on the ground that although
at law (common law), acontract, that was made by deed, could only be varied by another
deed, a simple contract varyingthe terms of a deed was a good defence, in equity, to an action
brought on the deed. The courtapplied the latter holding only the reduced amount was
payable. Once again, the court emphasizedthat, in any conflict, the rules of equity shall
prevail.

In the case of Job v Job, the assets of a testator came into the hands of his executor,
but were afterwards lost to the estate through no wilful default on the part of the executor.
Under the common law, an executor was liable for the loss of any assets of his testator which
had come into his hands, whereas, in equity, the executor was not liable for such assets if
they were accidentally lost without fault on his own. Jessel MR treated the case as one of
conflict and applied the equitable rule, holding the executor not liable.

In the case of Lowe & Sons v Dixon & Sons, three firms purchased a shipment of
wheatas joint partners. One of the firms, Lund, Beveridge & Co, subsequently went into
liquidation andthe question was whether and to what extent the other two firms had to
contribute to make good ofthe default of the third. Lopes J first underlined the position in
common law, namely if severalpersons have to contribute a certain sum, the share which each
has to pay is the total amountdivided by the number of the contributors, and no allowance is
made in respect of the inability ofsome of them to pay their shares. His Lordship then
underlined the position in equity that thosewho can pay must not only contribute their own
shares, but they must also make good the sharesof those who are unable to pay. His
Lordship held that as the rules of equity shall prevail, thelatter principle shall apply, and
therefore the other two firms must make well each one-half of thatwhich Lund, Beveridge &
Co was unable to pay. Once again, equity prevailed.

In the case of Seager v Copydex, Mr Seager had invented a patented carpet grip which
hemanufactured and marketed under the trade mark Klent. There were protracted
negotiationsbetween Mr Seager and Copydex over a proposal for Copydex to market the
Klent. During ameeting with two representatives of Copydex, Mr Seager disclosed to them an
alternative designof grip which could be produced more cheaply. Although there was a
dispute as to precisely whathad been disclosed at the meeting, there was no dispute that the
disclosure was in confidence Thedefendants had manufactured a carpet grip, honestly
and unconsciously making use of thatconfidential information. The alternative
design was not covered by Mr Seager’s patent. MrSeager then sued Copydex for
breach of an equitable obligation of confidence. Copydex arguedthat, in common law, there
must be confidentiality agreement in place before a person can be heldliable for a breach of
confidence. Lord Denning MR rejected Copydex’s contention and held that,in equity, a peron
who has received information confidence cannot take unfair advantage of it,even if there is
no confidentiality agreement in place. Since equity is to prevail, Copydex was heldliable.

In a nutshell, the principle of prevalence has been unanimously complied with in

differentcases and it was even incorporated into our Civil Law Act 1956 under section 3(2).
Thus, I am ofthe view that, besides fusion in terms of administration, there is no complete
fusion in terms ofnature, remedy, and doctrine between the equity and the common law.
There have been differentdecisions made as to whether the equity and the common law
should fuse in a certain aspect,rendering the question “to what extent common law and equity
can be seen as fused?” a questionwithout a certain answer. In order to claim the equity and
the common law as completely fused, distinctions in different aspects between them
must first be overcome. The time when theybecome one is also the time when the
principle of prevalence will be abolished, as two becomeone, nothing will be left to be
prevailed. However, the reality shows that this time shall nevercome, or at least, not anytime
soon.

CASE SUMMARIES

In the case of Motor Emporium v Arumugam, a judgement debtor (contractor)

assigned his rightsto the respondent to draw 390$ from the Public Works Department, Klang
through a letter in writingdated September 17, 1932, stamped as an assignment. On the other
hand, the appellant had obtainedjudgment against the contractor and in pursuance to the
judgment served a prohibitory order on the seniorexecutive engineer, Klang on October 26,
1932. The court held that after the contractor had executed theassignment in September 1932,
he had in fact transferred such interest and accordingly nothing remainedfor the appellant to
attach. The court also held that although there was no CLE incorporating into the lawof the
FMS the equitable principles applied in England at that point in time, the SC had the
widestpossible jurisdiction in all suits, matters and questions of a civil nature, and has
inherent jurisdiction toapply such principles of natural justice as are necessary or desirable.
Terrel Ag CJ stated that “the courtsof the FMS have on many Occasions acted on equitable
principles, not because English rules of equityapply, but because such rules happen to
conform to the principles of natural justice.” thus again, shewingthat the principles of
English law being used and applied in the FMS even before the CLE
wasintroduced

English law was only formally introduced into the FMS in 1937 by virtue of the CLE
1937.However, it is evident in the cases before 1937 that judgments were delivered in
accordance to theprinciples of the English law. Therefore, it can be said that the CLE was
merely a statutory codification ofwhat had long been practiced

Question 3

Topic – fusion fallacy (mistake or false understanding)

Intro
Lord Diplock (United Scientific Holdings)
– shows Diplock is a fusionist
-Historical development (CJA)
- Prof Ashburn
Body

-2 approaches

i) Fusionist (receptive approach)

– Jones & Goodhart,

- Jessel J – Salt and Cooper (proponents)

-cases and CJA

-closing statement

ii) anti-fesionist (conservative approach)

-Dalpont & Chalmers

-Meargher, Gummon & Lehane

-cases
-CJA -S.11 and S.25

Closing – based on what I hv presented, my stand is>>>

Historical background

Conflict – Earl of Oxford’s Case (equity prevails) – Dudley v Dudley – CJA (establish
supreme court, fuse administration of CL & E), S.25(11) – Walsh & Lonsdale (1 st case after
CJA (application))
Explain the significance of the Civil Law Act 1956 on the reception of English principles of
Equity in Malaysia. What do you think is the effect of section 6 on section 3 of the same Act?

Pre 1956

In the case of Motor Emporium v Arumugam, a judgement debtor (contractor) assigned his
rights to the respondent to draw 390$ from the Public Works Department, Klang through a
letter in writing dated September 17, 1932, stamped as an assignment. On the other hand, the
appellant had obtained judgment against the contractor and in pursuance to the judgment
served a prohibitory order on the senior executive engineer, Klang on October 26, 1932. The
court held that after the contractor had executed theassignment in September 1932, he had in
fact transferred such interest and accordingly nothing remainedfor the appellant to attach. The
court also held that although there was no CLE incorporating into the lawof the FMS the
equitable principles applied in England at that point in time, the SC had the widestpossible
jurisdiction in all suits, matters and questions of a civil nature, and has inherent jurisdiction
toapply such principles of natural justice as are necessary or desirable. Terrel Ag CJ stated
that “the courtsof the FMS have on many Occasions acted on equitable principles, not
because English rules of equityapply, but because such rules happen to conform to the
principles of natural justice.” thus again, shewingthat the principles of English law
being used and applied in the FMS even before the CLE wasintroduced.
English law was only formally introduced into the FMS in 1937 by virtue of the CLE
1937.However, it is evident in the cases before 1937 that judgments were delivered in
accordance to theprinciples of the English law. Therefore, it can be said that the CLE was
merely a statutory codification ofwhat had long been practiced.

The implementation of the Civil Law Act 1956 towards the reception of English principles on
equity in Malaysia is that it shall be in force in Malaysia pursuant to the cut off dates, and as
to whether to local circumstances and qualifications.

Section 3
General Application of English
Law
Section 3(1) provides that in
the absence of written law, the
courts in Malaysia shall apply
common law and rules of
equity existing in England in
West Malaysia and the Borneo
States
on its effective date
Sabah and Sarawak also
import English statutes of
general application - s 3(1)(b)
and 3(1)(c)
Section 3 General Application of English Law

Section 3(1) provides that in the absence of written law, the courts in Malaysia shall apply
common law and rules of equity existing in England in West Malaysia and the Borneo States
on its effective date

Sabah and Sarawak also import English statutes of general application

- s 3(1)(b) and 3(1)(c)

In the case of Motor Emporium v Arumugam, a judgement debtor (contractor) assigned his
rights to the respondent to draw 390$ from the Public Works Department, Klang through a
letter in writing dated September 17, 1932, stamped as an assignment. On the other hand, the
appellant had obtained judgment against the contractor and in pursuance to the judgment
served a prohibitory order on the senior executive engineer, Klang on October 26, 1932. The
court held that after the contractor had executed the assignment in September 1932, he had in
fact transferred such interest and accordingly nothing remained for the appellant to attach.
The court also held that although there was no CLE incorporating into the lawof the FMS the
equitable principles applied in England at that point in time, the SC had the widestpossible
jurisdiction in all suits, matters and questions of a civil nature, and has inherent jurisdiction
toapply such principles of natural justice as are necessary or desirable. Terrel Ag CJ stated
that “the courtsof the FMS have on many Occasions acted on equitable principles, not
because English rules of equityapply, but because such rules happen to conform to the
principles of natural justice.” thus again, shewingthat the principles of English law
being used and applied in the FMS even before the CLE wasintroduced.
English law was only formally introduced into the FMS in 1937 by virtue of the CLE
1937.However, it is evident in the cases before 1937 that judgments were delivered in
accordance to theprinciples of the English law. Therefore, it can be said that the CLE was
merely a statutory codification ofwhat had long been practiced.

Section 6
Section 6 of Civil Law Act 1956 states that nothing in this Part shall be taken tointroduce
into Malaysia or any of the States comprised therein any part of the law of Englandrelating to
the tenure or conveyance or assurance or succession to any immovable property orany estate,
right or interest therein. This statement means that English law cannot be appliedon any
matter relating to immovable property in Malaysia. Section 6 had excluded
theapplication of English Land Law in the Federation. So, Section 6 can be defined as
theexception clause to the immovable property.

Today :
– Torrens for Malacca & Penang – NLC (Penang and Melaka Titles) Act 1963
-Torrens for West Malaysia – NLC 1965, Sarawak – Sarawak Land Code
-different non-Torrens system in Sabah – Land Ordinance

Whether general equitable principles are excluded

1) General equitable principles are totally excluded
- Torrens System as contained in NLC is a comprehensive system of land law
United Malayan Banking Corporation Bhd v Pemungut Hasil Tanah, Kota Tinggi
- Cannot apply equity of redemption concept under English land law
- NLC being a comprehensive code of land law, has no room for importation of any
English law regarding land, unless the Code itself expressly provides for this.
In the case of UMBC & Anor v Pemungut Hasil Tanah Kota Tinggi, Lord Keith saidthat the
National Land Code in our country is a complete law used to govern the incidents oftenure of
land. There is no room for the English law to be applied on that field as the NationalLand
Code itself can provide rules for it. Moreover, based on the case of Wangsa TimberIndustries
Sdn Bhd & Ors v Adulfast Anthony Robert & Anor, this appeal made by theappellant
because The High Court give the declaration that the respondent had acquired aneasement of
right of way in respect of an access road situated on the appellant’s land. Theappellant
claimed that the judge had erred because he applied the principle of English
common law to deal with this case. The Court of Appeal dismissed this appeal and held
thatsince there were no provisions in Sabah Land Ordinance to restrict the application of
Englishlaw to Sabah, the respondent could claim the easement of land using the principle of
Englishcommon law and the Prescription Act 1832. The court also held that although Section
6 ofCivil Law Act 1956 prohibits the application of English law in the case relating right
orinterest in land, an easement is not a right or interest in land. It is only a right annexed
orappurtenant to the land. Therefore, Section 6 of Civil Law Act 1956 is not applicable
here.Apart from that, the Sabah Land Ordinance was not a complete set of land law in Sabah.
It includes the reception of English common law. The easement of right of way without any
registration is permitted.
- Issue: ad valorem stamp duty on the transfer of property
- property was agreed to be sold by a sale and purchase agreement for the purchase
price of $49,000.
- The memorandum of transfer was executed
- The Collector of Stamp Duties assessed the market value of the property at$65,000
and assessed the stamp duty accordingly.
- A appealed against the assessment - appeals dismissed
2) Applicable to the extent that they are not precluded by local legislation, suitable to local
circumstances
- NLC does not cover all the relations between the parties to land transaction – merely
professes to be comprehensive
- NLC regulates the rights & obligations of the parties only after registration, not before- In
the absence of any provision prohibiting application of equitable principles – may be applied
under s3(1) CLA 1956
Woo Yok Wan v Loo Pek Chee- What is precluded by s6 is English land law, not the English
principles regarding equitable interests in land.Alfred Templeton & Ors v Low Tat Holdings
Sdn Bhd & Anor- S 206(3) NLC provides statutory authority for the liberal application of
equity whenever there is a basis for that
Wilkins v Kannammal & Anor- Torrens law is a system of conveyancing; it does not
abrogate the principles of equity,it alters the application of particular rules of equity but only
so far as is necessary to achieve its own special objects- Established that general principles of
equity x excluded by s6 CLA
 Still in doubt – the scope/extent of the application of equity to land matters under NLC
Format to do case

- Parties
 - Conflict – Arumugam (contract dispute)
- Issues – Whether the English equity rules apply in contract infringement matter.
- Judgement – equity applies because it conforms to natural justice
- Significance – equitable principles on assignment was introduced.

Parties – CCN is one of the sons, while Spottiswood is the representative of the illegitimate

Issue – Whether the device can be treated as a charitable trust based English rules on
perpetuity applies

Judgement – device was void, rules of English perperuity applied

Significance – introduce that into FMS

QUESTION 1

Intro –

S.3 CLA – Application until Cut off dates, lacuna, local circumstances. Significance is that
CLA kennot be applied in land matters.

Body (argument)

Conclusion

Effect – rules of equity has no place in Msia Torrens cuz we use comprehensive NLC which
is diff from England that use deed but we register land which is indefeasible.

- S206(3) NLC

BIGGEST DIFFERENCE BETWEEN S.6 AND 3 – S.6 says England but S.3 says common
law