1.

What is specific performance ?

Pettit in Equity & Law Of Trust (4th Ed) describes specific performance
as an order of the court directing a

party to a contract to perform his

obligations thereunder according to its terms.

[ Yong Kon Fatt & Anor v Hock Seng Contsruction Sdn Bhd & Anor
[2000] 5 MLJ 551,HC]
An order for specific performance has the effect of ordering a contracting
party to do what he has undertaken to do. It is an equitable remedy. It cannot
be asked for as of right. It is certainly a discretionary remedy but the
discretion cannot be exercised arbitrarily or capriciously. The exercise of the
discretion is always governed by fixed rules and principles .
[ Caesar Lamare v. Thomas Dixon [1873] 6 LRHL 414, at p. 423)]

2.

Power

of

the

Court

to

order

specific

performance

is

discretionary
Power is given to this court in its discretion to order the specific performance
of certain contracts by virtue of the Specific Relief Act 1950 (Act 137)
[SRA] .

Section 11 SRA lays down the conditions under which the discretionary
powers are exercisable . Specific performance may be enforceable :a)

When the act agreed to be done

is in the performance ,wholly or

partly, of a trust : Section 11(1)(a) SRA .

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b)

Where there is no standard to ascertain damages caused by the nonperformance of the act agreed to be done : Section 11(1)(b) SRA .

Gan Realty Sdn. Bhd. & Ors. v. Nicholas & Ors. [1969]2 MLJ 110,
HC : Defendant refused to sell shares of company. Plaintif claimed for
specific performance of the agreement and a permanent injuction. The
court held that where the shares of the bank were not available in the
open market, the court could therefore order specific performance of an
agreement for the sale of the shares.
H.A. Securities Sdn. Bhd. v. Ng Kong Yeam [1993] 4 CLJ 433, HC :
Defendant
specific

refused to sell

shares of company . Plaintif

claimed

for

performance of the agreement . An order for specific

performance was not granted, on the grounds, inter alia, that the shares
contracted for were freely available in the open market, and that
damages would be an adequate remedy.

c)

When the act agreed to be done is such that pecuniary compensation

(money) is no an adequate relief : Section 11(1)(c) SRA .
Boo Kok Ngeak & Anor v Lim Kian Hoe & Anor [1998] 6 MLJ
727,HC : Where a valid sale and purchase agreement is sought to be
terminated by the vendor in order to demand additional purchase
price,the court held that an order for

specific performance is the

correct remedy for the plaintiffs.

3.

Rebuttable Presumption Under Section 11(2) SRA

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The law rebuttably presumes that the breach

immovable

property

is

not

remediable

by

of contract for the sale of

an

award

of

monetary

compensation
If the Defendant fails to raise anything which could rebut the presumption
under Section 11(2) SRA that in an application for specific performance of an
agreement for the sale and purchase of immovable property, damages in the
form of money was not adequate, the court will order specific performance of
the agreement.
Sekemas Sdn Bhd v Lian Seng Co. Sdb Bhd [1989] 2 MLJ 155, SC :
Plaintif agreed to sell land to Defendant, however the Defendant failed to
pay the last installment on the agreed date. The Plaintif then claimed for
specific performance.The Supreme Court held that the Section 11(2)SRA
will prevail in a case involving contracts dealing with sale and purchase of
property and an order for specific performance is appropriate in this case.

4.

Comparison between

Section 11(2) SRA and Section 20(1)(a)

SRA
In Sekemas Sdn Bhd v Lian Seng Co. Sdb Bhd [1989] 2 MLJ 155(SC) ,
the Supreme Court held that the equitable principles of specific performance
are provided in Section 20 and 21 SRA . Section 20(1)(a) provides that a
contract will not be specifically enforced

if compensation

adequately relieve

of the agreement. This section

the non-performance

in money can

however has to be read with some reservation in dealing with contracts for
the sale

and purchase of property. Section 11(2)

states that there is a

presumption that in contracts for the sale of immovable property monetary

compensation cannot be an adequate remedy;and that Section 20 (1)(a) is of
a general application while Section 11(2) deals specifically with contracts for

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the sale of land. Section 11(2), therefore, will prevail in cases involving
contracts dealing with sale and purchase of property.

The burden in on the Defendant to rebut the presumption.

[ Loh Koon Moy & Anor v Zaibun SA Binti Syed Ahmad [1978] 2 MLJ
29,FC.]
Instances where presumption can be said to have been rebutted :

In the case where due to the changes in the area of the land

it is

difficult for the parties to agree on a particular location to be

demarcated for sub-division for alienation to the Plaintiffs pursuant to
the agreement between them .
[

Ho

Ah

Kim

&

Ors.

Paya

Trubong

Estate

Sdn

Bhd

[1987] 1 MLJ 143]

Instances where presumption is not rebutted:

Where there is established a valid contract for the sale of immovable

property and a breach there of proved coupled with the fact that there
is no allegation or evidence that the conduct of the Plaintiffs have
been such as to disentitle them to the equitable relief they seek, the
conditions required for the presumption

under Section 11(2) SRA

would be considered to be present.

[ Yong Kon Fatt & Anor v Hock Seng Construction Sdn Bhd &
Anor [2000] 5 MLJ 551 ]

Hardship is a defence to a decree to a decree of specific performance

and should be pleaded. When there is no such plea in the sellers
defence and there is no evidence of hardship or to rebut the
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presumption in Section 11(2) an agreement for sale and purchase of an

immovable property will be a proper one to be specifically enforced
and may be so enforced.
[ M Nithyananathan v Soong Ba Cheek [1998] 2 MLJ 633,CA ]

5.

Specific Performance of part of contract

Section 16 SRA stipulate that the

court shall not direct

the specific

performance of a part of a contract except in cases coming under :a)

Section 13 SRA : Where part unperformed is small, court may direct

specific performance of part that can be performed and compensation
of unperformed part.
Kheng Chwee Lian v. Wong Tak

Thong [1983] 2 MLJ 320,FC :

The Respondent had bought a half share in a piece of land from the
appellant and had paid the purchase price. Subsequently the
Respondent was induced to sign another agreement under which he
was allocated a small portion of the land. The Respondent alleged that
he was induced by the false representation of the Appellant to sign the
second agreement. He applied to the court for a declaration that he
was the owner of one half of the land and an order that the land be
subdivided. Portions of the land had however been transferred to the
sons of the appellants. The sons were not parties to the action. It was
held that either Section 13 or Section 18(3) SRA may properly

be

invoked to the facts of this case.

b)

Section 14 SRA : Where part unperformed is large, court will not

grant specific performance
small part

that may be

further performance

but may direct specific performance for

pereformed

provided plaintif

relinquishes

and right to claim compensation for any

deficiency of performance.
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c)

Section 15 SRA : court may grant specific performance

for

independent part of contract

[ City

Investment

Sdn Bhd v. Koperasi Serbaguna Cuepacs

Tanggungan Bhd [1985] 1 MLJ 285, FC. ]

6.

Power to award compensation in certain cases

Compensation can be asked for by a party to a contract and awarded by the

court only in cases where specific performance are claimed.

Lee Hoy & Anor v. Chen Chi [1971] 1 MLJ 77 ,FC : This is an appeal by
the defendants against the judgment of the High Court at Kuala Lumpur
where the plaintiff claimed (a) for the recission of an agreement made
between them and the return of $16,300, or alternatively;(b) for the refund
of $6,794.20 from the defendants. The Federal Court held that the appeal
should be allowed. It would appear that the Court may award compensation
under Section 18 only in a case where the plaintiff asks for specific
performance, and the Court decides that specific performance ought not to
be granted, though there has been a breach of the contract by the
defendant, or where though specific performance ought to be granted, but
that it is not sufficient to justify the justice of the case, and that some
compensation for breach of the contract should also be made, to the plaintiff.
Only in those circumstances may the Court award compensation. In the
present case, in the first place, the plaintiff did not ask for specific
performance, and even if he did, most probably the Court would dismiss it
because there was nothing that was still required to be done by the
defendants under the contract made between them.

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Section 18 SRA provides for a prayer for compensation and can be

summarize as follows:a)

Section 18(1) SRA provides the right of the party suing for specific
performance to ask for compensation in addition to or in substitution
for, specific performance.

b)

Section 18(2) SRA

deals with the power of the court to award

compensation where it considers specific performance claimed ought

not to be granted.
c)

Section 18(3) SRA contemplates a situation in which both specific

performance and compensation,respectively,ought to be granted and
awarded because specific performance alone would not be a sufficient
remedy.

Ismail Bin Mohd Yunos & Anor v. First Revenue Sdn Bhd [2000]

MLJ 42 , HC: In this case, the court invoked Section 18(2) SRA and granted
compensation in lieu of specific performance.
7.

Liquidation of damages not a bar to specific performance

Section 19 SRA provides that the existence of the money provision in an

agreement does not prevent the court from ordering specific performance
under Section 19 of SRA.
M Nithyananathan v. Soong Ba Cheek [1998] 2 MLJ 633 , CA.
Lim Sinn Oo & Ors. v. Cheah Tjeng Siong [1989] 2 MLj 44, HC

8.

Contracts which may not be specifically enforced

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Section 20 SRA set down eight (8) instances of contract which cannot be
specifically enforced. There are as follows:i)

Section 20 (1)(a) SRA stipulates that no specific performance can

be granted

if monetary compensation is an adequate relief. This

section have to be read together with s.11(1)(c) & s.11(2) SRA.

Sekemas Sdn Bhd v. Lian Seng

Co Sdn Bhd [1989] 2 MLJ

155,SC : Specific performance was granted by the court as Defendant

could not rebut presumption under S.11(2) SRA.
Ho Ah Kim & Ors. v Paya Trubong Estate Sdn Bhd [1985]1 LNS
13 : Specific performance was not granted by the court as presumption
under S.11(2) was rebutted by Defendant.
ii)

Section 20 (1)(b) SRA lay down

3 instances

where specific

performance will not be granted : If it involve a contract contains minute/numerous details.

If it involve a contract for personal services.
Penang Han Chiang Associated Chinese School Assocation v.
National Union Of Teachers in Independent Schools, West
Malaysia [1988] 1 MLJ 302 ,SC.
Dato' Abdullah Bin Ahmad v. Syarikat Permodalan Kebangsaan
Bhd & Ors [1990] 3 MLJ 505 ,HC.

If the nature of contract shows specific performance is not a suitable

remedy .
Mohammad Bin Baee v Pembangunan Farlim Sdn Bhd [1988] 2
MLJ 211,HC: Where the facts of a case show that the court will not be
able

to

superintend

the

works

required,

say,to

complete

the

construction of a house,no order for specific performance will be

granted bearing in mind Section 20(1)(b) SRA.
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ii)

S.20(1)(c) SRA provides that no specific performance can be granted

if the terms in the contract is uncertain.

Ismail Bin Mohd Yunos & Anor v First Revenue Sdn Bhd [2000]
5 MLJ 42, HC : Any property in respect of which specific performance
of a contract for sale is soughtmust be clearly identifiable. No specific
performance

can be ordered when there is uncertainty as to the

identity of the property.

iii)

S.20(1)(d)

SRA

provides that

no specific performance can be

iv)

granted if it involve a contract which is in its nature revocable.

S.20(1) (e) &(f) SRA provides that no specific performance can be
granted if the contract is void or ultra vires.

v)

S.20(1)(g) SRA provides that no specific performance can be granted

if the contract involved a term of a

continuos period exceeding 3

years.
Marble Terrazzo Industries Sdn Bhd v Anggaran Enterprise Sdn
Bhd & Ors [1991] 1 CLJ (Rep) 691
vi)

S.20 (1)(h) SRA provides that

no specific performance can be

granted if the subject matter of the contract ceases to exist.

vii)

S.20(1)(2) SRA provides that the court does not enforce specific
performance of agreements to refer to arbitration.
Yip Chee Seng & Sons Sdn Bhd v Ornaconstruction Corporation
Sdn Bhd [1998] 7 MLJ 655.

9.

Discretion of the Court

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A decree of specific performance is a decree issued by the court which

contrains a contracting party to do that which he has promised to do. It is
a form of relief that is purely equitable in origin and the purpose of such
decree is to ensure that justice is done.
[Tay Tho Bok & Anor v Segar Oil Palm Estate Sdn Bhd [1996]3 MLJ
181]
Section 21 (1)

SRA provides that the jurisdiction to decree specific

performance is discretionary , and the court is not bound to grant any

such relief because it is lawful to do so but given with sound and
reasonable reason ,guided by judicial principles and capable of correction
by a court of appeal.
Section 21(2) SRA lay down instances where the court may properly
exercise a discretion not to decree specific performance :(i) if plaintif has unfair advantage over defendant although no fraud or
misrepresentation by plaintif
(ii)

where the performance of the contract would cause undue and

unforeseen hardship on defendant & non performance would not cause

hardship on plaintif
Sekemas Sdn Bhd v. Lian Seng Co Sdn Bhd [1989] 2 MLJ 155,SC :
Defendant raised defence under S.21(2)(b) and argued if SP enforced,he
would be bankrupt and suffer undue hardship. The court rejected
Defendant's argument and held that financial problems could not be
undue hardship. If Defendant undertook expensive project he shoud have
foreseen financial problems. Therefore, specific performance was granted.

S.21(3) SRA states that the court is may properly used its discretion to
decree specific performance is where the Plaintif has done substantial

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acts or suffered losses in consequence of a contract capable of specific

performance.

10.

For Whom contract may be specifically enforced

Section 22 SRA provides that specific performance of a contract may

be obtained by :a)

any party to a contract.

b)

the representative in interest unless the contract provides that his

interest shall not be assigned - no sp

c)

any beneficiary in contract of settlemet for marriage/ familiy dispute

d)

a new company arises out of amalgamation of

a contract between

public companies.
f)

any public company

provided the contract that

has been entered

before its corporation is entered for the purposes of the company and
warranted by the terms of the incorporation.

11.

Personal bars to relief

Section 23 SRA provides that specific performance cannot be

enforced in favour of a person :a)

if the applicant is someone who could not recover compensation for its
breach - not a party to the contract
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b)

if the applicant

is incapable of performing the contract ie; become

insolvent /bankrupt.
c)

if the applicant already sued under breach of contract and obtained his
remedy.

d)

if the applicant had notice that a settlement of the subject matter had
been made and already in force.

Plaintif need to show that he was ready and willing to perform on the
contract.
Where the plaintiffs were ready and willing to complete at all times and the
purported repudiation of the contract by the vendors had not been accepted
by them, they will be entitled to specific performance.
[ Caltex Oil (Malaya) Ltd. V Ho Lai Yoek & Anor (1964) MLJ 76 ]

In a suit for specific performance, a party treated and was required by the
court to treat the

contract as still subsisting. He has in that

allege,and if the fact was traversed, he was

suit to

required to prove a continuous

readiness and willingness,from the date of the contract to the time of the
hearing,to perform

the contract on his part. Failure to make good that

averment brought with it the inevitable dismissal of his suit.

[ Ganam d/o Rajamany v Somoo s/o Sinnah [1984]2 MLJ 290 ]

12.

Relief against parties and persons claiming

under them

by

subsequent title

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Section 26(b) SRA : Specific performance of a contract may be enforced

against any other person claiming under a party to the contract by a title
arising subsequently to the contract,except a transferee for value who has
paid his money in good faith and without notice of the original contract.
The effect of Section 26(b) SRA is that the burden lies on defendant
who asserts that he took the interest without notice of the prior contract.
Ong Chat Pang & Anor v Valiappa Chettiar [1971] 1 MLJ 224,FC : The
onus is on the defendant to prove that he is a bona fide purchaser .
Who is or is no a bona fide purchaser?
Where the person to whom the land was transferred was the son of the
original landlord and there is no evidence to show that any consideration
was paid for the transfer,in such circumstances, the tenant is entitled to an
order of specific performance against the new landlord as he is a volunteer
and is not protected by Section 26(b) of SRA as the protection afforded under
that section is only to a bona fide purchaser for value without notice.
If the subsequent transferee has given no consideration and is a mere
volunteer, he has no right against the first promisee.
[Holee Holdings (M) Sdn Bhd v Chai Him & Ors [1997] 4 MLJ 601,HC]

13.

Against whom contract cannot be specifically enforced

Section 27 SRA provides that specific performance of a contract cannot be

enforced against a party in any of the following instances:a)
b)

If the consideration received by the defendant is grossly inadequate.

If the contract is entered under misrepresentation, concealment,
circumvention or unfair practices.

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c)

If the contract is entered under the influence of mistake of fact,

misapprehension or surprise.

However, if the contract provides for compensation in case

of mistake,

compensation & specific performance can be granted.

[Letchemy Arumugam v N. Annamalay [1982] 2 MLJ 198,HC.]

14.

The effect of dismissing a suit for specific performance

Section 28 provides that the dismissal of a suit for specific performance of a

contract shall bar the plaintiffs right to sue for compensation for breach of
contract.

15.

Summary application for specific performance

Order 81 RHC 1980 governs the procedure for summary judgment in an

action for specific performance.
This order provides a procedure similar to Order 14 RHC 1980 (pari
materia with Order 26A SCR 1980) enables a plaintiff, where there is no
triable defence to the action, to obtain summary judgment in an action for
specific performance of a contract (irrespective of whether it is in writing)
for the sale and purchase of land without having to proceed to a full trial.

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There are procedural

differences

between Order 81 RHC 1980 and

Order 14 RHC 1980. The major ones are as follows :-

Order 81 RHC 1980

Order 14 RHC 1980

Plaintiff can apply

for
summary
judgment without awaiting entry of
appearance by the Defendant .[ Or 81
r (1)(2) RHC 1980 ]

Statement of claim should have been

served on the Defendant and the
Defendant
must
have
entered
appearance
before the Plaintiff can
apply for summary judgment . [Or 14 r
(1)(1) RHC 1980]

The summons must set out or have

attached thereto minutes of judgment
sought. [ Or 81 r (2)(2) RHC 1980 ]

The application should relate

whole action/claim.

to the The application may relate to the whole

action/claim or to a particular part of
the claim. [Or 14 r (1)(1) RHC 1980]

The
affidavit
supporting
the
application should be made
by a
person who can swear positively to the
facts verifying the cause of action. [Or
81 r (2)(2) RHC 1980]

The affidavit supporting the application

may be made by the Plaintiff, or the
Solicitor for the Plaintif or the Plaintiffs
or solicitors clerk or person duly
authorized by the Plaintiff. [ Form 18
RHC 1980 & Malayan Banking Bhd
v Chua
Keng Seng [1991] 3 CLJ
2522]

The Defendant cannot utilize the Or 81 Defendant entitled to file summary

procedure for summary judgment of a judgment to be entered against Plaintiff
counterclaim in an action under Or 81. for counter claim . [Or 14 r 15 RHC
1980]
There is no corresponding provision to
Or 14 r 5 RHC.

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16.

Bar to actions against Government

No

application may be made

under

Order 81 RHC 1980

in

proceedings against the government .

Section 29 (1) Government Proceedings Act provides that in any
civil proceedings against the government, the court shall not make an
order specific performance.
This section has to be read together with

Order 73 r 5 (1) RHC

1980.
Nonetheless, by virtue of Order 73 r 5 (2) RHC 1980, an application
may be made

by the government under Order 81 RHC for specific

performance.

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