S 11(1)(b) of SRA provides that when no standard as to ascertain the actual damage and there is a breach of contract, this contract can be specifically enforced. In the case of Gan Realty Sdn Bhd. & Ors v Nicholas & Ors, the court had granted the plaintiff specific performance for the sale and purchase contract of share that was still not in the open share market. Therefore, the court could not determine the damage and the court had to grant specific performance to order the defendant to perform as according to the contract. However, in situation where the share is opened to the share market, the value can be ascertained, and thus, specific performance will not be granted. However, the presumption for all immovable property, monetary compensation is not enough due to the fact that land always have unique value. Since land will always have unique value, there is no standard to ascertain the actual damage for the victim, so specific performance must be granted. However, this presumption can be rebuttedwhen the contract contains an express term that specific performance is unavailable in the event of breach of contract.

“I entered into an agreement to sell my building to Lily. I terminated my business and 5 tenancies in that building by paying compensation to all the tenants. However, Lily does not want to purchase my building later. I have suffered a great loss which monetary compensation will not suffice.”

S 11(1)(c) of SRA states that specific performance is to be granted when the monetary compensation is not sufficient to compensate when the contract is breached. In the case of Seet Soh Ngoh v Venkateswara Sdn Bhd, the housing developer had breached the terms of the contract to the purchaser. However, damages awarded for the plaintiff is insufficient because it does not fully cover the cost of buying the land and building of house. Hence, the court must grant the specific performance.

“Part of the contract is left unperformed but the contract has been breached, what can I do?”

The unperformed contract can be divided into two types, namely indivisible contract and divisible contracts. Indivisible contracts where the part unperformed is small, while divisible contracts where the part unperformed is large.

If the unperformed part of the contract is small, the court may direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.

If the unperformed part of the contract is big, the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant.

Read also: “When can a contract be specifically enforced under specific performance?”