LIA 3015 REMEDIES

THE SCOPE OF THE REMEDIES COURSE

Lecture:
Tuesday 1 pm – 2 pm (DK 1)
Thursday 1 pm – 2 pm (DK 1)

Tutorial (4 classes)
Tuesday 10am – 11am (BS5), 2pm – 3pm (BS 8), 5pm – 6pmm (BS 5)
Wednesday 5pm – 6pmm (BS 5)
To elect: Class Representatives & Assistants

Ms Choong Shaw Mei (shawmei@um.edu.my) H/P No: 012-2282497

Mr Ng Seng Yi (ngsengyi0116@hotmail.com)

Assessment Weightage:
Continuous Assessment: 40%
Class Test (15%) Week 7
Group Presentation (15%) Week 8
Reflective Statement (10%) Week 14
Summative Assessment: 60%
Final Exam (60%)
 COURSE LEARNING OUTCOMES

At the end of the course, students are able to:

 Explain the basic concepts of remedies

Elaborate on the applicable principles of selected civil remedies

Identify the appropriate remedy for differing factual

circumstances

 Apply the appropriate principles to resolve legal problems.

 Civil Private Law Remedies

 Public law remedies v Private Law remedies

 Focus on Remedies for Breach of Contract

- Rescission for breach of contract
- Damages
- Specific Relief

 Equitable Remedies

 Restitution based on Unjust Enrichment

 Tort: Personal Injuries & Fatal Accidents Claims

 Synopsis

 the scope of this course deals primarily with remedies in relation the law of obligations

 to consider the remedial goals of the common law, equity and the relevant statutes

 to examine the legal rules & principles which give effect to these goals

 main focus will be on the area of remedies for breach of contract

 while the focus will mainly be on contract law remedies, comparison will be made with the
principles relating to the law of tort

 to study the principles underlying compensation, specific reliefs, restitution

 Some Qs to be considered:

 With compensatory damages being the primary remedy for many torts and for
breach of contract, what role is there for punishment and gained-based
damages in our law of civil obligation? What remedies give effects to these goals?

 Why are the compensation rules for contract different from those for tort?
How are they different?

 How do the doctrine of mitigation and other limiting factors affect

compensation in common law?

 When are injunctions and specific performance available, and what factors
affect their availability?
 Other Considerations for Awarding Damages

 remedies as punishment: exemplary damages may be awarded in tort to

punish the tort-feasor but generally not awarded for breach of contract - the
root distinction between voluntary obligation (contract) & purely imposed
obligations (tort)
 being based on a voluntary obligation, courts are minded to tailor the remedy
in contract to what was voluntarily undertaken and therefore reluctant to
invoke non-compensatory remedies such as punitive or restitutionary damages
(c/f AG v Blake, [1998] 1 All ER 833)
 the reluctance to award damages for mental distress (for breach of contract)
contrasted with the usual award for pain & suffering & loss of amenities for
personal injury claims (tort)
 The law of obligations : Contract

Contract law is concerned with binding promises- remedies for breach

are concerned with fulfilling expectations engendered by that promise-
hence performance interest in assessing damages, specific
performance
basis of compensation for breach of contract:

Per Parke B in Robinson v Harman

“The rule of common law is that, where a party sustains a loss by
reason of a breach of contract, he is, as far as money can do it to be
placed in the same situation, with respect to damages, as if the contract
had been performed.”
 Tort

 the law of tort is concerned with (common law) wrongs such as trespass to
person, defamation, nuisance as well as negligence – damages is the usual
remedy -> measure of damages is usually compensatory

 Basis of assessment for tort:

Per Lord Blackburn in Livingston v Rawyard Coal Co (1880) 5 App Cases
25
“Where any injuries are to be compensated by damages, in settling the
sum of money to be given for reparation of damages, you should as nearly as
possible get at that sum, which will put the party who had been injured, or who
has suffered, in the same position as he would have been if he has not sustained
the wrong, for which he is now getting his compensation or reparation”.
 Remedial Restitution

“restitution for wrong” –

in case of rescission for tort of deceit or negligence sum recovered as

restitution under the claim for rescission
Abdul Razak bin Datuk Abu Samah v Shah Alam Properties
Sdn Bhd [1999] 2 MLJ 500 CA

where restitution may be given for breach of contract (rarely)

AG v Blake [2001] 1 AC 268
 Restitution on the basis of Unjust Enrichment

the law of restitution is concerned with unjust enrichment as the

underlying basis –that the defendant had gained at the plaintiff’s
expense – the goal is to deprive the defendant of a gain rather than
compensating the Plaintiff for his loss
an independent course of action
having its origins in the common law of quasi contract –the use of
older terms like quantum meruit (reasonable compensation),
quantum valebant (reasonable price), money had and received (by
reason of unjust factors: mistake or coercion)
restitution for money paid under mistake – s73 Contracts Act
 Equitable Remedies

equitable wrongs : breach of fiduciary duty (including breach of trust),

breach of confidence, dishonest procuring or assisting a breach of
fiduciary duty
analogous to tort but differ because of their historical roots in the Court
of Chancery rather than the common law courts
the goal is “equitable compensation” which is to put the plaintiff into as
good a position as if no wrong had occurred (contrasted with
“compensatory damages”)
remedies include : rectification, cancellation, constructive trust,
accounts & tracing
 Specific Reliefs

Specific performance of a contract

 an equitable remedy which enforces D’s positive contractual obligations
 originated in the Chancery courts upon the realisation that there are many cases in
which the remedy available in common law (eg damages) is not adequate

Injunctions
 an equitable relief in the form of a court order addressed to a specific person
forbidding or commanding him to do a certain act
 prohibitory or injunctions, temporary or permanent injunctions
 Mareva Injunctions, Anton Piller Orders
 Remedies for Breach of Contract

Part 1 Breach of Contract

s 40 CA : Rescission for breach of contract
ss 65, 66 & 76 CA : Reliefs for rescission of contract
ss 34-37 SRA : Rescission under the SRA

Part 2 : Damages
s 74 CA : Damages for breach of contract
s 75 CA : Liquidated Ascertained Damages and Penalty
s 76 CA : Damages for rescission for breach
 Specific Reliefs

Part 3 : Specific Performance

s 11 SRA : Contracts which may be specifically enforced
s 18 SRA : Damages in addition to, or in substitution for, specific performance
s 19 SRA : Liquidated damages not a bar to specific performance
s 20 SRA : Contracts which cannot be specifically enforced
s 21 SRA : Discretion of the Court

Part 4 : Injunction
ss 50-54 SRA : Interlocutory & perpetual injunctions, prohibitory &
mandatory injunctions,
 Court of Judicature Act (Schedule 6) : Mareva Injunction, Anton Piller Order
 Unjust Enrichment

PART B: RESTITUTIONARY REMEDIES

Part 1: Introduction

Part 2 : Restitutionary remedies under the Contracts Act 1950

 S 65 CA : Consequences of rescission of voidable contract
 s 66 CA : Money paid pursuant to a void agreement
 s 69 CA : Claims for necessaries supplied to person incapable of contracting
 s 70 CA : Reimbursement of person paying money due by another
 s 71 CA : Obligation of person enjoying benefit of non-gratuitous act
 s 73 CA : Money paid or thing delivered by mistake or under coercion
 Remedies in Tort

PART C : REMEDIES IN TORT – DAMAGES FOR PERSONAL

INJURY AND FATAL ACCIDENT CLAIMS

Damages for personal injury claims - ss 10, 11, 12, 28A CLA

Damages for fatal accident claims – ss 7 & 8 CLA

 A Case Study

 Abdul Razak bin Datuk Abu Samah v Shah Alam Properties Sdn Bhd
[1999] 2 MLJ 500 CA

 To consider :
1. What was the cause of action – in tort or in contract?

2. What were the remedies claimed by the Plaintiff? Why not specific reliefs?

3. On what basis were the awards of damages made?

4. Why were some of the claims for damages not allowed on appeal?