In Lee Hoy Anor v Chen Chi FC 1971 the FC held that damages under s18 will only

In lee hoy anor v chen chi fc 1971 the fc held that

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In Lee Hoy & Anor v Chen Chi (FC) [1971] , the FC held that damages under s.18 will only be granted where the plaintiff applies for both damages and SP together. In Johnson v Agnew (1980) , the HOL held that if the plaintiff applied for damages in lieu of SP, the damages are to be assessed as at the date of breach. s.18(2) provides that where the court decides that SP ought not to be granted, the court can grant damages in lieu ( in substitution) of specific performance to compensate the plaintiff for the breach. ( it means that remedy of money compensation replaces the remedy of SP. ) S.18(3) provides that the court decides that SP ought to be granted but that it is not sufficient to satisfy the justice of the case, the court can grant damages in addition to SP. In s.18(4) provides that the compensation awarded under s.18 may be assessed in such a manner as the court may direct. In Ong Geok Heng v Wee Cheong Motor & Housing Development Sdn Bhd , the court held that when assessing damages under s.18 , the court should adopt the same basis of assessment of damages as under s.74 of the CA 1950 . In other words, the remoteness test in Hadley v Baxendale. s.18(5) provides where the contract has become incapable of specific performance, the court may give compensation. For example, the shares have already been allotted to others, the plaintiff is entitled to compensation. s.21 SRA 1950 s.21 provides that the jurisdiction to grant SP is discretionary and the court is not bound to grant any such relief merely because it is lawful to do so; but discretion of the court is not arbitrary but sound and reasonable, guided by principles and capable of correction by COA. s.21(2) provides that the court may properly exercise its discretion not to grant SP. (a) 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 misrepresentation of the plaintiff’s part. (b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas it non-performance would involve no such hardship on the plaintiff. In Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd (SC) [1989] , the vendor transferred the property to the purchaser after the purchaser paid a deposit. The purchaser then defaulted on payments. The vendor applied for SP. The purchaser raised a defence under s.21(2)(b) and argued that if SP were to be enforced, he would be a bankrupt and would suffer undue hardship. The court rejected and said that the financial problems could not be undue hardship. If the purchaser undertook an expensive project, he should have foreseen the financial problems.
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s.21(3) provides that the court is more likely to grant specific performance if the plaintiff has performed a major part of the contract, incurred substantial expenses. This should be noted that this is only a factor taken into account by the court to grant SP.
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  • Winter '17
  • Daniel
  • Contract Law, Judicial remedies, Legal remedy

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