maxims of equity (topic 3)
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DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
1
MAXIMS OF EQUITY
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
2
bull What are Maxims
bull Types of Maxims
bull Functions of maxims
What we will learn
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
3
Maxims ndash general guidance
bull a collection of legal truisms which are
used as rules of thumb
bull it is an established principle or
proposition
bull Framework of reference within which
the broader conception of conscience
and fairness can be considered
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
4
Equitable maximsbull One of discretion and moral judgment
bull They are not binding but only provides
guidelines for every situation in which
equity developed
bull Maxims of Equity are of useful guide
bull Maxims are the principles developed by
Lord Chancellors exercising on behalf of
the Crown
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
5
conrsquot
bull an extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of individual
bull One of the historic criticisms of equity as it developed
was that it had no fixed rules of its own and each
Lord Chancellor gave judgement according to his
own conscience
bull John Selden
ndash Equity varies with the length of the Chancellors foot
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
2
bull What are Maxims
bull Types of Maxims
bull Functions of maxims
What we will learn
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
3
Maxims ndash general guidance
bull a collection of legal truisms which are
used as rules of thumb
bull it is an established principle or
proposition
bull Framework of reference within which
the broader conception of conscience
and fairness can be considered
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
4
Equitable maximsbull One of discretion and moral judgment
bull They are not binding but only provides
guidelines for every situation in which
equity developed
bull Maxims of Equity are of useful guide
bull Maxims are the principles developed by
Lord Chancellors exercising on behalf of
the Crown
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
5
conrsquot
bull an extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of individual
bull One of the historic criticisms of equity as it developed
was that it had no fixed rules of its own and each
Lord Chancellor gave judgement according to his
own conscience
bull John Selden
ndash Equity varies with the length of the Chancellors foot
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
3
Maxims ndash general guidance
bull a collection of legal truisms which are
used as rules of thumb
bull it is an established principle or
proposition
bull Framework of reference within which
the broader conception of conscience
and fairness can be considered
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
4
Equitable maximsbull One of discretion and moral judgment
bull They are not binding but only provides
guidelines for every situation in which
equity developed
bull Maxims of Equity are of useful guide
bull Maxims are the principles developed by
Lord Chancellors exercising on behalf of
the Crown
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
5
conrsquot
bull an extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of individual
bull One of the historic criticisms of equity as it developed
was that it had no fixed rules of its own and each
Lord Chancellor gave judgement according to his
own conscience
bull John Selden
ndash Equity varies with the length of the Chancellors foot
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
4
Equitable maximsbull One of discretion and moral judgment
bull They are not binding but only provides
guidelines for every situation in which
equity developed
bull Maxims of Equity are of useful guide
bull Maxims are the principles developed by
Lord Chancellors exercising on behalf of
the Crown
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
5
conrsquot
bull an extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of individual
bull One of the historic criticisms of equity as it developed
was that it had no fixed rules of its own and each
Lord Chancellor gave judgement according to his
own conscience
bull John Selden
ndash Equity varies with the length of the Chancellors foot
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
5
conrsquot
bull an extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of individual
bull One of the historic criticisms of equity as it developed
was that it had no fixed rules of its own and each
Lord Chancellor gave judgement according to his
own conscience
bull John Selden
ndash Equity varies with the length of the Chancellors foot
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
6
Equitable maxims
bull Such maxims follow principles of universal
justice
bull Chancellors were originally the keepers of the
Kings conscience with the authority to do
whatever good conscience and good reason
required in a particular case
bull Hanbury ndashthe fruit of observation of developed
equitable doctrine
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
7
Pearce The Law of Trusts and
Equitable Obligations
bull Maxims are an attempt to formulate in short
pithy phrases the key principles which
underlie the exercise of the equitable
jurisdiction
bull Provide useful illustrations
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
8
maxims
bull Examples of such maxims includes equity
will not suffer a wrong with a remedy
those who seek equity must do equity and
equity requires diligence clean hands and
good faith
bull These maxims are a form of the Biblical
phrase do unto others as you would have
them do unto you and the old doctrine of
clean hands pure heart
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
9
maxims
bull In Chancery Court these maxims refer to
civil matters mostly involving
businesses family law workers
compensation land probate matters and
more recently discrimination cases
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
10
Among the traditional maxims
are
bull Equity looks regards as done which ought to have been done
bull Equity will not suffer a wrong without a remedy
bull Equality is equity
bull Equity regards substance rather than form
bull Equity looks to the intention rather the the form
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
11
continue
bull Where the equities are equal the first in time will
prevail
bull Where equities are equal the law will prevail
bull Equity follows the law
bull He who seeks equity must do equity
bull He who seeks equity must have clean hands
bull Equity aids the vigilant not those who sleep on
their rights
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
12
continue
bull Delay defeats equity
bull Equity will not concern itself with abstract wrongs
bull Equity abhors a forfeiture
bull Equity does not require an idle gesture
bull Equity will not permit a party to profit by his own wrong
bull Equity delights to do justice and not by halves
bull Equity will take jurisdiction to avoid a multiplicity of suits
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
13
1) Equity will not suffer a wrong without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it possible
Defects of the common law to provide relief
Meaning- Where there is a right there is a remedy
In Latin ndash Ubi jus ibi remedium
Sometimes the Common courts owing to some technical defect unable to enforce a remedy therefore equity intervenes and provides for judicial enforcement- injunction recognition of trust
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
14
means no wrong should go unattended if it is capable of being remedied by courts
This is the basis on which the structure of equity rests-it is a duty of the Court of Chancery to prevent a failure of justice
Limitation -non-application if it includes moral
wrong
- it is remedied by common law courts-
at present there is remedy in
damages
- due to his own negligence destroy the
evidence
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
15
Application and Recognition- The Civil Procedure Code and the Specific Relief Act have incorporated this maxim The Code entertains all kinds of suit unless it is prohibited and the Act provides equitable remedies like sp injunctions rectification etc
Allows the beneficiary to enforce their obligation to use the property against the trustee
In contract- escape from the contract if it is led by mistake or misrepresentation
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
16
bull The maxim also applies to rights which are
suitable for judicial enforcement but were
not enforced at common-law owing to some
technical defect
bull For example during the trial process
common-law did not impose any duty on
the defendant to make disclosure through
discovery of documents
bull Equity then provided the remedy by
prescribing the process of discovery of
documents
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
17
2) EQUITY ACTS IN PERSONAM
bull The courts of equity operate primarily in personam attacking and binding the conscience of a person
bull It was used as a weapon to establish jurisdiction
bull Equity enforces its decisions by means of a personal order against the defendant
bull Example order to perform a contract observe a trust refrain from building the wall etc
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
18
bull If the def refuses he will be in contempt of
court and punishable by imprisonment
bull The court may exercise jurisdiction over the
person within the power of the court even
though the property is outside the
jurisdiction
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
19
Penn v Lord Baltimore [1750] Ves Sen 444
bull The plaintiff filed a suit in the court of Chanceryfor specific performance of an agreement inrespect of property situated in North AmericaThe defendant challenged the jurisdiction of thecourt to grant the remedy as the property wasoutside England
bull ldquohellipthe conscience of the party was bound by thisagreement being within the jurisdiction of thiscourt which acts lsquoin personamrsquo the court mayproperly decree it as an agreementrdquo
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
20
Swiss Bank Corpn v Lloyds Bank Ltd[1979] Ch 548
bull Historically the courts of equity acted in personamWhether equity was supplementing the commonlaw by giving additional remedies or correcting thecommon law by imposing a different legal resultthe courts of equity intervened by directing thedefendant personally to do or refrain from doinga specific act In deciding whether or not tointervene the courts of equity required first thatthe plaintiff should have some enforceable rightand secondly that the conscience of thedefendant was affected in some way so as to makethe failure of the defendant to give effect to theplaintiffs rights contrary to justice
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
21
Chellaram v Chellaram [1985] 1
All ER 1043 at 1053
bull Scott J
bull The jurisdiction of the court to administer
trusts hellipis in a personam jurisdiction
bull Case Re Valibhoy (Dcd) (1961) 27 MLJ
187
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
22
3) Equity follows the law
bull The Court of Chancery will not override the
Common Law Courts except
bull To remedy an injustice
bull Equity could never depart from statute
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
23
3) Equity looks to the intention rather
the the formbull Another maxim with similar nature is ldquoEquity
regards substance rather than formrdquo
bull Romilly MR in Parkin v Thorold (1852) 16 Beav 59 at 66
bull Courts of Equity make a distinction between that which is matter of substance and that which is matter of form and if it finds that by insisting on the form the substance will be defeated it holds it to be inequitable to allow a person to insist on such form and thereby defeat the substance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
24
Foskett v McKeown [1994] 1 AC
324
bull Sir Richard Scott V-C
bull lsquoThe availability of equitable remedies
oughthellipto depend upon the substance of
the transaction in questionrsquo
bull Equity will look at the substance rather
than the form or the wording used
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
25
Margaret Chua v Ho Swee Kiew amp
Ors [1961] 1 MLJ 173
bull a lease which is not registered is void as
a lease under the law but is good and
valid as an agreement for a lease and
may be enforceable in equity by a decree
of specific performance
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
26
bull Equity will not grant an injunction to
enforce a negative covenant entered by an
employee agreeing not to work for others if
in substance this would amount to an order
of specific performance of their contract of
employment since Equity will not enforce
contracts of personal service-employees
intention
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
27
5) Equity looks at that as done which ought to be
done
bull The maxim that equity looks upon as done that which ought to be done applies as a general rule of equity outside the law of contract
bull Where the contract is specifically enforceable equity regards the promisor as having already done what he has promised to do
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
28
Mountney v Treharne[2003] Ch 135
bull Where any court directs a person to transfer property equity treats the transfer as having already been executed
bull The husband became a constructive trustee of the property for the wife on the coming into effect of the order
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
29
HL Banerji v Chin Cheng Realty (Pte)
Ltd [1983] 2 MLJ 18
bull the parties had signed a 10 year lease of theresprsquos premises with a provision for renewal ifthe App made a request three months beforethe expiration of the lease When the apprequested for renewal of the lease for 10 yearsthe resp refused The app sued for SP andsucceeded
bull Ct hd that the App always had an equitableright to renewal of the lease as equity looksupon as done what ought to have been done
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
30
A-G for Hong Kong v Reid
[1994] 1 AC 324
bull The maxim has the implication that the
fiduciary who receives an unauthorised
profit in breach of his duty of loyalty will
hold the profit on constructive trust for his
principal because he is subject to an
equitable duty to account for the profit he
received
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
31
bull In other words what would the position have been if what should have been done had been done
bull Equity acts on the conscience of a person
bull Walsh v Lonsdale(1882) 2 Ch D 9
bull 2 principles
i) evidence of the contract
ii) Suit within the time
bull Concept of bare trust ndashTemenggong Securities
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
32
6) He who comes to equity must come
with clean hand
bull Does the plaintiff come into the court with clean hands
bull Court will refuse relief where the plaintiff by prior conduct in relation to the matter in litigation has acted in bad faith or violated some equitable principle
bull The clean hands doctrine only applies when the plaintiff has acted unjustly in the very transaction of which he complains
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
33
bull This maxims look at the past conduct of the
Plaintiff
bull However the maxim does not apply to
conduct in general but only that which has
lsquoan immediate and necessary relation to the
equity sued forrsquo
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
34
Chettiar v Chettiar [1962] 1 MLJ 143bull A father had owned a maximum acreage of rubber
land allowed under regulations at that time In order to
avoid tax assessment over ownership of an extra 40
acres of rubber land the father transferred the 40
acres to his son as nominee A receipt of $7000 was
obtained from his son when actually no money was
involved Subsequently the father contracted to sell
this land but the son refused to give him the power of
attorney The father brought an action for a
declaration that the son held the land on trust for him
The Privy Council dismissed the fatherrsquos action on the
ground of lsquounclean handsrsquo as the transfer was made for
a fraudulent purpose
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
35
Timber Master Complex (sabah) Sdn
Bhd v Top Origin Sdn Bhd [2002] 1
MLJ 33bull Operator entered into agreement on manufacturing
operation for 2 years with an option to renew
bull Resp gave a notice to renew but no further action
bull Ct held The claim by the R that they had acquired
rights over the extended period would remain
empty claim if it was not met by the
corresponding duty to pay rentals
bull He comes to equity must come with clean hands
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
36
7) Delay defeats equity
bull Equity aids the vigilant and not theindolent
bull Persons who seek equity must not sleepon their rights This is the foundation ofthe doctrine of lsquolachesrsquo where a partywho has delayed cannot obtain equitablerelief
bull The Limitation period-the statutory rules
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
37
Smith v Clay (1767) 3 Bro CC
639 640
bull Lord Camden LG
bull hellipequity has always refused its aid to stale
demands where a party has slept upon his right
and acquiesced for a great length of time Nothing
can call forth this court into activity but
conscience good faith and reasonable diligence
where these are wanting the Court is passive and
does nothing
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
38
Goh Heng Kow amp Ors v Raja Zainal Abidin [1995]
3 MLJ 6
bull In 1993 land sold to def (Long)
bull The P a beneficiary of the previous registeredproprietor(settlor) caveated the land in 1994which prevented the def from registering thetransfer When the P applied to extend his caveatthe def sought to set aside the order of extension
bull The court found that the P had acquiesced to longrsquos title for almost 30 years and they were thus estopped and barred by laches from asserting their alleged interests
bull Order set aside
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
39
Nelson v Rye [1996] 2 All ER
186
bull It was held that a musician could not claim
an account of earnings wrongfully retained
by his manager in breach of fiduciary duty
because he had waited for more than six
years before commencing an action
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
40
8) He who seeks equity must do
equity
bull Looks at the Plaintiffrsquos future conduct
bull If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person against whom it is sought
bull Eg in the case of injunction before a Court
can grant an interlocutory injunction the
plaintiff must first take an undertaking
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
41
Mohamed Syed Fathima do Shahul Hammed amp Ors
v MMS Syed Aliyar [2004] 5 MLJ 168
bull Facts ndash P amp D are partners and co-owners of restaurant and staying together on the same floor ndashobtained order agst trespass
bull Prsquo was asked to pay damages to def for discontinued injunctive orders agst the def
bull P appealed agst the damages
bull P relied on s 343 of the NLC ndash as co-owners def has no right for damages
bull Ct hd since P relied on s 343 thus shd also realized that he also has no right to obtain injunction agst the def
bull He who seeks equity must do equity
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
42
8) Equity imputes an intent to
fulfill an obligation
bull Equity places the most favourable construction on
a manrsquos acts
bull If he does something which could be construed as
fulfilling an obligation he owes equity will regard
it as having this effect
bull Eg If a debtor leaves a legacy to his creditor this
is presumed to be a repayment of debt
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
43
Application in Malaysia- Specific
Relief Act 1950 bull Object of the SRA 1950
bull is confined to the class of remedies which a suitor
seeks to obtain and a Court of justice seeks to give
him the very relief to which he is entitledrsquo
bull There is the existence of a legal duty binding
upon the defendant and unfulfilled by him What a
man ought to do by a rule of law he ought to be
made to do by the force of law
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
44
bull lsquothe relief provided under this Act is a relief
in specie that is the performance of a
specific act or the delivery of particular
articles and not relating to the payment of
moneyrdquo
bull Per Kamalanathan R JC in Arab Malaysian
[1998] 6 MLJ 136
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
2252015 DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
45
How it is given
bull Taking possession
bull Ordering the person to do the act
bull Preventing him to do the work- SRA s 5
bull Determining and declaring the rights of the
person
bull Appointing the receiver
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015
DrBashiranDrS ZubaidahDr Nor
AsiahDr Zuraidah
46
Conclusion
bull Is a short phrase which formulates a
principle
bull A brief expression of a general truth
principle or rule of conduct
bull As a guideline by the Chancery to decide
cases or to settle disputes
2252015