This document summarizes equitable remedies available under equity law, including injunctions and specific performance. It discusses the circumstances in which these remedies may be granted or refused by courts. Equitable remedies are designed to supplement common law remedies and are granted at the court's discretion to redress wrongs. Specific performance allows a court to order a party to carry out contractual obligations, while injunctions can be prohibitory (to refrain from an act) or mandatory (to perform an act). Courts will consider factors like adequacy of damages, claimant's conduct, readiness to perform contractual obligations, and delay or acquiescence when deciding whether to grant equitable remedies.

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EQUITABLE REMEDIES
- “Remedies granted by equity to redress
wrong.”
- Case: ​Lamare v Dixon​.
Generally given entirely at the court’s
discretion.
- Equitable remedies are designed to be
ancillary to common law remedies; to
supplement the common law and invoked
only where the common law remedy is so
inadequate as to warrant their application.
- It acts in personam and failure to comply:
contempt of court.
- Equitable remedies can be ​varied or
dissolved if the court discovers later that the
application for such relief was made on
suppressed facts or the facts upon which the
order was granted no longer exist.
- Case: ​Gilligan v National Bank Ltd​.
A remarkable feature over the centuries was
the ability and willingness of equity to grant
elastic remedies which were not obtainable a
law.
Remedies
i) Rescission
ii) Rectification
iii) Specific performance
iv) Injunction
v) Tracing
Specific performance
- An order against a contracting party for him
to carry out his obligation under the contract.
- S. 11 SRA: Granted only when damages is
not an adequate remedy, i.e. contracts for the
sale of land; stock and shares; rare chattels.
- S.18 SRA: Damages may be awarded in
substitution for, or in addition to, specific
performance. Any person suing for specific
performance of a contract may also ask for
compensation for its breach.
- Decree of the court directing that the contract
shall be performed specifically according to
the terms.
- Where a contract is suitable for a decree of
SP, the plaintiff may commence proceedings
as soon as the defendant refuse performance
or the defendant breaches the contract when
the time for performance arrives.
- The elaborate provisions governing the
decree are enacted in the Specific Relief Act
1950.
Circumstances when SP can be granted are
provided in S. 11 of SRA 1950:
a) Performance of an act agreed to be done
wholly or party of a trust.
b) No standard to ascertain actual damage
caused by the non-performance of the
agreement.
c) Pecuniary compensation not an adequate
relief – depends on the type of contract &
based on the maxim equity follows the law.
- S. 21(2) SRA 1950: SP may be refused
where a contract has been secured by unfair
means or it would cause severe hardship to
the other side.
- If the defendant proves that hardship
amounting to injustice would be inflicted upon
him or her by granting the SP, and that it
would not be reasonable to do so, SP may
not be granted by the court.
- If a person has taken action against the party
who breaches the contract and obtained a
remedy, he cannot seek for SP as another
remedy.
- See S. 27 (a)-(c) SRA 1950
i) Fraud or undue advantage and
consideration is grossly inadequate.
ii) Consent obtained via
misrepresentation.
iii) Consent given under the influence
of mistake of fact, misapprehension
or surprise.
iv) SP cannot be granted against these
people to compel performance of
the contract.
Contracts not specifically enforceable
- S. 20(a) – (h) SRA 1950.
Discretionary remedy
- Granting of SP is at the judicial discretion of
the court.
- It is not a matter of right of parties to a
contract.
- It is at the discretion of the court whether to
grant or to refuse to grant SP.
- However, court’s discretion is not arbitrary.
- It has to follow the guidelines given by the
Act.
- S. 21(1) SRA 1950.
- Case: ​Ganam d/o Rajamany​.
Court may even refuse to grant SP when
compensation is not an adequate remedy.

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Exercise on discretion
- S. 21(2) SRA 1950: SP may be refused
where a contract has been secured by unfair
means or it would cause severe hardship to
the other side.
- If the defendant proves that hardship
amounting to injustice would be inflicted upon
him or her by granting the SP, and that it
would not be reasonable to do so, SP may
not be granted by the court.
For whom enforcement cannot be made
- S. 23 SRA 1950: A person who could not
recover compensation for its breach, i.e. third
party who is not a privy to a contract.
- A person who has become incapable of
performing, or violates, any essential term of
a contract that on his part remains to be
performed – the party seeking SP should be
ready, willing and able to perform his or her
contractual obligations.
- A person who has already chosen his
remedy and obtained satisfaction for the
alleged breach of contract.
- If a person has taken action against the party
who breaches the contract and obtained a
remedy, he cannot seek for SP as another
remedy.
- A person who previous to a contract, had
notice that a settlement of the subject matter
thereof had been made and was in force.
Against whom SP cannot be granted
- S. 27(a)-(c) SRA 1950.
Injunction
- An order to restrain a person to whom it is
directed from performing a specified act
(prohibitory), or requiring him to perform a
specified act (mandatory), as the case may
be.
- They are prohibitory in their most common
form; orders prohibiting parties from
breaching their contractual undertakings, and
usually granted to stop one party from doing
something he or she has promised not to do.
Purpose
- Lord Halsbury: “Injunction is a judicial
process whereby a party is ordered to refrain
from doing an act or to do a particular act.”
- Halsbury’s Law of Msia: To protect and
preserve legal rights and interests and to
prevent the commission or continuation of a
legal wrong.
Classification of injunction
i) By nature: Prohibitory or Mandatory
Injunction
ii) By time: Temporary
(Interlocutory/Interim) or Perpetual
Injunction
Mandatory injunction
- Orders the performance of an act or acts.
- Positive in nature since it requires the
defendant to act.
- It will be necessary where the prohibited act
has been committed and an order restraining
the defendant would be pointless.
- See S. 53 SRA 1950
- Mandatory injunction may be granted to
prevent the breach of a contract and to
compel the party to a contract to perform his
undertakings under the contract.
Prohibitory injunction
- Prohibitory injunction is restrictive in nature.
- It requires that the defendant refrain from
initiating or committing the prohibited act.
Perpetual injunction
- Can only be granted by a decree made at the
hearing and upon the merits of the suit.
- The defendant is thus perpetually restrained
from interfering with plaintiff’s rights or
prohibited from commission of an act which
would be in contrary to the plaintiff’s rights.
- See S. 51(2) SRA 1950.
- The plaintiff must show either that there is an
actual or threatened injury to some legal or
equitable right of his or that the defendant
has behaved, or threatened to behave in an
unconscionable manner.
- It may be granted to prevent the breach of a
contract but the courts would take into
account the guidelines pertaining to SP.
- If SP cannot be granted for the contract,
injunction to prevent the breach of the
contract cannot be granted too.
- This is to avoid injunctions being used as a
backdoor to obtaining SP of a contract.
- See S. 52 (a) – (e) SRA 1950.
- Normally granted when compensation alone
is not an adequate remedy.

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Temporary injunction
- Interlocutory/Interim Injunction.
- To protect the plaintiff against injury or
violation of his right for which he could not be
adequately compensated in damages
recoverable in an action if the uncertainty
were resolved in his favour at the trial.
- The court is not in a position to decide the
case or to resolve uncertainty. It role is to
minimise the risk of injustice to the parties in
circumstances where it is unclear that the
claimant will succeed.
- Case: ​American Cynamid Co​.
“It was to mitigate the risk of injustice to the
plaintiff during the period before that
uncertainty could be resolved that the
practice arose of granting him relief by way of
interlocutory injunction”.
- Injunction which continues until a specified
time or until further order of the court.
- May be granted at any period of suit.
- Ex-parte hearing.
- Object of interlocutory injunction is to protect
the plaintiff against injury or violation of his
right which he could not be adequately
compensated in damages recoverable in an
action if the uncertainty were resolved in his
favour at the trial.
- To preserve status quo of the parties pending
resolution of the trial (Case: ​American
Cynamid Co v Ethicon Ltd​).
Considerations by the court
Adequacy of damages and other remedies
- Case: ​London and Blackwell Rly Co v Cross​.
“The very first principle of injunction law is
that prima facie you do not obtain injunctions
to restrain actionable wrongs, for which
damages are the proper remedy”.
Conduct of the claimant
- A claimant who has behave unconsciously or
improperly may be denied equitable
intervention.
- Maxim: He who comes to equity must come
with clean hands.
- Case: ​Littlewood v Caldwell​.
The wrongful removal of partnership books
led to the refusal of an injunction to a
claimant in the midst of proceedings to
dissolve the partnership.
No injunction unless the claimant is ready, willing and
able to carry out any contractual obligations owed to
the defendant
- Case: ​Measures Bros Ltd v Measures​.
The plaintiffs who are seeking equitable relief
by way of injunction, cannot obtain such relief
unless they allege and prove that they have
performed their part of the bargain and are
ready and able to perform their part in the
future.
- Maxim: He who seeks equity must do equity.
Impossibility or futility of performance
- Case: ​AG v Observer Ltd​.
Futility of continuing with existing injunctions
led directly in the discharge of injunction
against national newspapers prohibiting the
publication of confidential information.
- Maxim: Equity will not act in vain.
Delay and acquiescence
- Delay: A claimant of equitable relief must
sought for his relief without unreasonable
delay.
- Acquiescence: The knowing failure to object
to wrongdoing may prevent the claimant from
seeking to object to it at some future juncture.
- Maxim: Delay defeats equity.
Hardship
- The element of hardship is a key
consideration for the court where the
injunction sought is interim or mandatory.
- Interim: The rights of the parties are yet to be
determined. So court will safeguard the
defendant from potential hardship while he
has not been found to be in breach of the
claimant’s rights.
- Mandatory: Expenditures for the positive act
– whether hardship outweighs the benefit to
the claimant;
- Case: ​Wood​.
Held: Where disproportionate hardship will be
caused to the defendant by the grant of an
injunction than to the claimant in being
confined to remedy of damages, the court
can refuse to grant injunction.

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When injunctions cannot be granted
- S. 54 SRA 1950.
- i.e. Against government, breach of contract
acquiesced by the party who seeks for
injunction to prevent breach, applicant has no
personal interest in the matter, to stay
proceedings in criminal matter.
Injunction to perform negative agreement
- S. 55 SRA 1950:
- When a contract has both affirmative
agreement and negative agreement, the fact
that the court is not able to compel SP for the
affirmative part of the agreement will not
preclude the court’s power to grant injunction
to compel the performance of the negative
agreement.
- Case: ​Pertama Cabaret Night Club Sdn Bhd
v Roman Tam​.
Supreme Court granted an interim injunction
restraining the defendant from singing in any
place in Kuala Lumpur given that in the
contract with the plaintiffs, the defendant had
covenanted not to perform in the stipulated
area during the validity of the contract or
three months thereafter.
Rescission
- In situations where the contract is voidable
because of a vitiating factor (coercion, fraud,
misrepresentation, undue influence, mistake),
the contract will be set aside and the parties
will be restored to their pre-contractual
positions.
- The right to rescind is the right of a party to a
contract to have it set aside and to be
restored to his former position.
- The contract remains valid unless and until
rescinded.
- This must be distinguished from a contract
which is void ab initio, i.e. a contract which is
void on the ground of illegality.
- Rescission is not a judicial remedy and could
be done by a party under a contract by giving
a notice of rescission to the other party of the
contract (see Contracts Act 1950).
- However, court’s assistance is still often
invoked to rescind contracts.
- The role of equity is that it enables a contract
to be set aside in circumstances where the
common law would not. It also can grant
relief by applying the maxim “he who comes
to equity must do equity”.
Restitution in integrum
- If a contract is rescinded, the party rescinding
is entitled to be restored to the position he
would have been in had the contract not
been entered into.
- Note: Not to a position had the contract been
performed – contrast with breach of remedy.
- Hence, damages will not be the remedy here.
Grounds for rescission
- Mistake ​which is coupled with
misrepresentation or fraud that had induced
the party to enter into the contract.
- Mistake per se is insufficient to enable
rescission.
- Common law did not recognise mistake
made innocently (without intention to fraud)
to form a ground for rescission but equity
does.
- In the absence of misrepresentation, the
mistake must be a common mistake, i.e. a
mistake common to both parties in order to
justify rescission.
- Case: ​Cooper v Phibbs​.
Common mistake enables rescission of
contract of lease.
Other grounds
i) Substantial misdiscription in a contract
for the sale of land.
ii) Undue influence – a defendant’s
influence or dominance over the
claimant in procuring his execution of
document.
Loss of rights to rescind
- The right of rescind may be lost in any of the
three ways:
i) Affirmation.
ii) Restitution in integrum not possible.
iii) Third party acquiring rights.
1) Affirmation.
- Where the party entitled to rescind affirms the
contract, for example by taking a benefit
under it, with knowledge of the facts giving
rise to the right to rescind and of his legal
rights, he will be taken to have waived that
right (Case: ​Clough v London and North
Western Rail Co​).
- Affirmation may be shown by words, act or
may be indicated by lapse of time (doctrine of
laches).

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2) Restitution in integrum not possible.
- A contract will cease to be capable of
rescission if the parties can no longer be
restored to their original position.
- Case: ​Erlanger v New Sombrero Phosphate
Co​.
Any money paid or other property transferred
under the contract must be restored.
- Equity is concerned to restore the parties,
especially to defendant, to their former
positions as far as practically possible.
- Case: ​Cheese v Thomas​.
3) Third party acquiring rights.
- The right to rescind is lost if an innocent third
party acquires an interest under the contract
for value before the claimant seeks to set it
aside (Case: ​Oakes v Turquand​).
- However, this does not apply if the third party
is a volunteer.
Rectification
- In situations where an instrument is not in
accordance with the intention of the
contracting parties due to a common or
unilateral mistake, the instrument may be
corrected.
- Rectification is a discretionary equitable
remedy whereby an instrument which does
not accord with the intentions of the parties to
it may be corrected.
- It operates as an exception to Parol Evidence
Rule which does not allow admissibility of
oral evidence to alter a written instrument.
- Here, oral evidence is allowed to be admitted
before the court to prove that the instrument
had wrongly recorded the details intended.
- i.e. If the detail of a land in a sale and
purchase agreement is wrongly stated, oral
evidence may be tendered to prove the
intention of the parties on the actual property
intended to be in transaction.
- The parties have a choice of either to rescind
or rectify the contract.
- Rectification order by the court has
retrospective effect and it is a judicial remedy
– need court’s order.
Nature of the mistake
1) Common mistake.
- GR: Rectification requires a mistake common
to both parties, whereby the instrument
records the agreement in a manner contrary
to both parties’ intention.
2) Unilateral mistake.
- Mistake by one of the parties in recording the
details or terms in an instrument.
- Rectification can only be granted if he can
prove that the mistake he made was due to
fraud by the other party or that the mistake
was known to the other party.
Defences
i) Bona fide purchaser for value without
notice has acquired interest under the
contract.
ii) Doctrine of laches will bar the claim.
iii) Frustration (the contract is no longer
capable of being performed).

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Tracing
- One of the most effective remedy available to
a beneficiary who has been deprived of the
trust property as a result of breach of trust by
a trustee is the remedy of tracing.
- The remedy enables the beneficiary (plaintiff)
to follow the ownership of property in to
whosever hand’s that property falls and to
recover it.
- A means to trace the misappropriated
property of trust assets. It is a process of
identifying new property as substitute for the
original property.
- Owners can recover the property, or any
profits made from it, or in any situations
where the properties cannot be recovered (it
has been mixed), substitute property.
- A tracing remedy is a method of asserting
ownership to property.
- Literally, the legal or equitable owner of
property may “trace” their ownership through
the hands of the different persons who may
have possessed it and may recover it from
the person who currently possesses it.
- Object of remedy: To restore to plaintiff that
which they have been deprived of wrongfully,
often in breach of trust.
- Such is the power of tracing remedy that the
property need not be in the same form as
that when they lost possession because the
claimant is tracing their right of ownership
and may enforce that right of ownership
against any property which has been
exchanged for their original property.
- Case: ​Boscawen v Bajwa​.
Neither a claim nor a remedy, but a process.
Example
- A trustee wrongfully distributes cash to
beneficiary X and X uses the money to
purchase a car.
- The beneficiary entitled to the cash may trace
their ownership through the cash into the car
and recover it from X.
- Tracing is a proprietary remedy – the plaintiff
is asserting their right to property per se.
- Tracing remedy is available both at common
law and equity.
- Common law tracing is a means of following
legal title to property through successive
persons until the property is identified in the
hands of the person against whom the
remedy s then pursued with.
- It is a means to an end, and not the end itself
(Case: ​Agip (Africa) Ltd v Jackson​).
- Tracing at law is available to any person who
has legal title to the property and the main
purpose is to identify whom the legal person
should sue – hence not available to a
beneficiary.
- Limitation for tracing in law is that the
remedy of tracing stops when the fund is
mixed​.
Limits
- Honesty or dishonesty is not looked into.
- Does not stop even if the property has fallen
into the hands of a bona fide purchaser for
value.
- However, the remedy stops when the
property is no longer identifiable from
whereby it is destroyed or the money is
dissipated, then the common law tracing
remedy is of no use (Case: ​Lipkin Gorman v
Karnaple​).
Equitable tracing
- As for tracing in equity, the remedy may
extend even to mixed funds.
- Available to a beneficiary who does not have
legal title to property but only equitable
ownership.
- It is proprietary in nature in the sense that to
trigger the claim, the claimant must have
equitable proprietary interest in the property
(Case: ​Re Diplock​).
- So, a beneficiary can claim for equitable
tracing but a trustee who has legal ownership
cannot claim this remedy.
- There must have been a fiduciary
relationship between the claimant who is the
equitable owner of the property and the
defendant against whom he is claiming the
property (Case: El Ajau v Dollar Land
Holdings​).
- The property of the beneficiaries must have
been transferred wrongfully to another
person. Otherwise, there is no right or reason
to claim from the other reason.
- Equitable tracing is not possible against a
person who is a bona fide purchaser for
value of the property although it may still be
possible to trace from the person who sold
the property to the bona fide purchaser for
value (Case: ​Re Diplock​).