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The specific performance remedy is stated in the Specific Relief Act 1950
in Chapter II. Under this law, section 11 states that specific performance
of any contract may be granted at the discretion of the court. (Refer to
appendix), it stated few circumstances which explained detailed in terms
of case and scenarios which the specific performance may be granted by
the course.
This part is referring on trust means that ones property will be held by the
other for the benefit of that person. This means that if the trustee (Person
B) wrongfully disposed of a share or stock that belongs to person A. Then
Person A may sue person B for specific performance. The case Gan Realty
Sdn.Bhd &Ors v Nicholas &Ors explains on this point.
The case Gan Realty Sdn. Bhd & Ors v Nicholas & Ors is the case on
shares. The court has granted specific performance for the shares which is
limited and not always had in the open market.
This subsection states that when the breach of contract does not provide
any standard for determining the actual damage caused by the non-
performance (when the contract has not being performed), the court may
grant the plaintiff or the innocent party specific performance. For
example, when person A breached the contract by not performing the
promised performance, and the actual damage is unascertained, person B
(the innocent party) may get specific performance as a remedy if the
court intents.
Section 11(2)
Section 11 (2) states that unless and until the contrary is proved, the
court shall presume that the breach of a contract to immovable properly
cannot be adequately relieved by compensation in money and that the
breach of to transfer movable property can be thus relieved.
Firstly, immovable property refers to land, houses etc. while movable
property is such as vehicles or anything can be moved. Here it stated that
the court will presume that breach of a contract to transfer immovable
property cannot be sufficiently relieved with monetary compensation
while monetary compensation can relieve breach of a contract to transfer
moveable property. Thus, transfer of immovable property contract breach
may entitle the injured party towards specific performance. However,
lawyers may rebut the presumption.
The case that argues on this point is Zaibunsa Binte Syed Ahmad v Loh
Koon May. The case states that Zaibunsa (the defendant) and Loh Koon
May (The plaintiff) over a contract of selling a mining land. As initially
Zaibunsa agreed to sell a land to Loh Koon May, however the defendant
has defaulted on his promise and the plaintiff has brought this case to
court. As plaintiff pray for specific performance of the agreement and the
court granted specific performance by considering many elements
including oral agreement which was taken admissible by the court. Thus,
Loh Koon May was granted specific performance over this contract.
Referring to this two points, the court granted specific performance as the
property held between the plaintiff and defendant was a land, thus
immovable. As well as the common presumption that monetary
compensation will not be adequately relief for the non-performance of the
agreement, the court thus granted specific performance to the plaintiff. In
my opinion, that if a breach occurs in a contract of immovable property
transfers, it create issues where it can be consider that the non-
performance of the act does not have any standard for ascertaining the
actual damage. As the plaintiff may have several plans to be conducted in
the land, thus considering possibilities, granting specific performance is
appropriate.
c) A contract the terms of which the court cannot find with reasonable
certainty.
This explains on the contract made about a subject matter, and the
subject matter ceased to exist before the contract come into force. Thus,
this contract cant be specially enforced.
Section 21
Section 21 (2)
This section refers to the scenarios where the court may discrete not to
grant specific performance.
1. Where the circumstances under which the contract is made are such
as to give the plaintiff an unfair advantage over the defendant,
though there may be no fraud or misinterpretation on the plaintiffs
part.
Section 18 (3)
The section 18 (3) explains on if in any such suit the court decides that
specific performance ought to be granted, but that it is not sufficient to
satisfy the justice of the case, and that some compensation for the breach
of the contract should also be made to the plaintiff, it shall award him
such compensation accordingly.
Supporting cases
Nutbrown v Thornton
Cohen v Roche
Patel v Ali
The case illustrates on the on Mr. and Mrs. Patel who wanted to sell their
house to Ali (plaintiff). However it was delayed when Mr. Patel was
bankrupt, and during the time of making the contract Mrs. Patel was
healthy. During the delaying period, Mrs. Patel was diagnosed with bone
cancer and had her leg amputated and had further children. Thus, she
became dependent on her neighbors to assist her daily activities in the
place. Thus the plaintiff has sought for specific performance. The court
denied the specific performance by addressing the pain and suffering Mrs.
Patel may face if she was forced to move out of the place however as Mr.
Ali is also not the party at fault in this scenario, the court held it as
hardship amounting to injustice if the specific performance was granted.
On this logic, Mr. Ali can obtain specific performance as the house is an
immovable property. However, if specific performance is granted, it would
impose hardship on the defendant. In law, the judgement must be fair,
therefore the specific performance was not granted to the plaintiff.
Walters v Morgan
The case illustrates on silence and specific performance. In this case, the
defendant bought a land and plaintiff wish to mine in that land. Thus, the
plaintiff produced a draft lease and forced the defendant into signing the
lease, afterwards the defendant realizes the true value of the land and
refused to allow the plaintiff to mine the land. Therefore, the plaintiff sued
for breach of contract and sought for specific performance while the
defendant sought for contract to be rescinded for misinterpretation.
The court held it that there was no misinterpretation since the plaintiff did
not said anything or did anything to deceive the defendant regarding the
value of the land. Silence is not equivalent to misinterpretation. Yet the
court refused to grant specific performance as the plaintiffs intended to
take advantage of the defendants unawareness by rushing him into
signing the contract.
Commonly specific performance will be granted for immovable property
transfers, however in this case there was silence however the court stated
that it is not equivalent to misinterpretation. However the plaintiffs
behavior in rushing the defendant to sign the lease contract proved that
the plaintiff is trying to take advantage of defendants ignorance,
therefore granting specific performance to the plaintiff would be injustice
to the defendant. Thus the specific performance was denied by the court.