lix 2013 1 CLJ Current Law Journal two answers to that The narrow one is that a

Lix 2013 1 clj current law journal two answers to

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lix [2013] 1 CLJ Current Law Journal two answers to that. The narrow one is that a dealing by way of transfer or lease or mortgage is not the only method of transgressing the contract. Retention and user and alteration of the property by the defendant himself could not be prevented by a caveat, and these are equally within the dominion claimed by him. But the broader ground is this: that where rights and liabilities are not created by a statute, but arise by common law, then, even though they are affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed by common law, yet, unless the statute expressly or by necessary implication excludes the common law remedy, the latter still remains. The granting of an injunction is always in the discretion of the judge or the court. An injunction is available, in appropriate circumstances, to the plaintiff to ensure interim preservation of the subject matter of a civil suit even though the plaintiff had failed to resist the removal of a caveat (at the instance of the chargee) which he had earlier entered. In Tan Lay Soon v. Kam Mah Theatre Sdn Bhd [1992] 4 CLJ 1922; [1992] 3 CLJ (Rep) 657 where Edgar Joseph Jr J (as he then was) held at p. 663 that: Accordingly, in my view, the purchaser, having failed to resist the chargee’s attempt to remove the caveat is not prevented from seeking a separate and distinct remedy as against the chargor for interim preservation of the subject matter in order to preserve the status quo until his claim is adjudicated upon. If, in certain circumstances, as against the same party, a plaintiff may be entitled to both a caveat and an injunction (see Manilal & Sons (M) Sdn Bhd. v. M Majumder [1991] 3 CLJ (Rep) 264 305), I fail to see why, having failed to resist removal of a caveat by one party, a plaintiff may not, in appropriate circumstances, obtain an order whose object is to ensure interim preservation of the subject matter of the litigation against another party. Eventually, the plaintiff, Mr. Tan Lay Soon, lost his case in the Supreme Court in the appeal by the vendor in Kam Mah Theatre Sdn Bhd v. Tan Lay Soon [1994] 1 CLJ 1 on the ground that there was no binding contract. Peh Swee Chin SCJ, in delivering the judgment of the Supreme Court making observation on the expression ‘usual terms and conditions’, said at p. 6: We were of the view that there was no contract at all, because we found that the said document was dependent on the signing of a formal contract to be further negotiated and approved by both parties. On this ground alone, we would allow the appeal. L A W
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l x [2013] 1 CLJ Current Law Journal There was another ground on which we would have equally allowed the appeal. That other ground for finding that there was no contract at all was that the words in the said proviso – “usual terms and conditions” failed to reveal certainty they were too ambiguous.
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