Muhammad Abdul Fateh Bin Mohd Rahmat

1911097
Equity and Trust Section 3

Q1. Common injunction in a simple word is that the Court of Chancery may stop the judgment
from the Court of Common Law to be enforceable or to prevent from the proceeding in the Court
of Common Law to proceed. This is due the conscience of the Chancery whom believe that by
enforcing the judgment or proceeding from the Court of Common Law will result in injustice
upon the one of the parties. In the case of Earl of Oxford, Roger Kelke as the College Master had
sold the disputed land to the Queen. Later, the land was granted by the Queen to Spinola, later
sold to Earl of Oxford and lastly leased to Mr. Warren. The new Master, Gooch then lease the
land to John. The Court of Common Law has decided that since a provision in the Ecclesiastical
Act 1571 was breached by the parties in the conveyancing of the estates, particularly the limit of
person that the land can be transferred to, therefore the contract is void ab initio. But the Court of
Chancery upholds that the contract between Spinola and Earl of Oxford is as good contract. The
case was later referred to the King due to the dispute over common injunction that has stopped
the enforcement of judgment from Court of Common Law, and after referring to his Attorney-
General, King James declared it clearly that, “in conflict of Equity and Common Law, Equity
shall prevail”. Though that it was settled on the matter which prevails, the system of two courts
are still a burden to the people. In the 19 th century, the Judicature Act 1873 was enacted to fuse
the administration of this 2 courts with 2 jurisdiction in order to avoid any waste of cost and time
in seeking justice.
Q2. The first maxim is “He who comes to Equity must come with clean hand” means that to seek
equity, the claimant must first had done justice to whom he/she seeks against. It is retrospective
in nature. When the claimant had done injustice towards the defendant in a litigation, the maxim
will apply, and that the court will deny the rights of equity over the claimant. In the case of
Timber Master Complex (2002), they made an agreement that before the end of their contract,
the claimant may request to renew the contract between them for 2 years. However, the
defendant did not take effect of the promise when their contract is about to finish. When the
claimant seeks equity, it was found that the claimant had arrears from the previous contract with
the defendant, which is an injustice towards the defendant. The court held that to seek for equity
over the promise, the claimant has to fulfil his consideration of the previous contract first. Next is
“He who seeks equity must do equity”. It means that a person who seeks for equity has to predict
that he shall be fair towards the defendant and his future act must not do injustice towards the
defendant. It is prospective in nature. In the case of Mohamed Syed Fathima (2004) case, the
plaintiff and the defendant are co-owner of restaurant but due to a dispute, the plaintiff obtained
ex-parte injunction against the defendant, causing the defendant to not enter the premise for 5
years. After the judgment was served and the injunction had ended, the defendant suffered a
huge amount of loss due to his inconvenience situation. The plaintiff appeal against the order of
damages for the defendant and it was held that the plaintiff should have known that by seeking
the injunction, he will cause inconvenience towards the defendant and he would suffered loss.
Therefore, the damages and the initial amount of RM 30,000 is enforceable in personam. Those
two maxims is similar in term of doing justice towards the defendant when seeing equity,
however, the different is that the maxim apply in different period of time, which the first maxim
works retrospective and the other works prospectively.
Q3. Under section 3(1) of the Civil Law Act, except when there is an existing written law by the
Parliament of Malaysia, the rules of equity that is developed after 7 th April 1956 is not applicable
in Peninsular Malaysia, after 1 December 1951 is not applicable in Sabah, and after 12
December 1949 is not applicable in Sarawak. The Court in Malaysia is still applying the rules of
Equity in Malaysia as stated by Poh Swee Chin J in Syarikat Batu Sinar Sdn Bhd case where
there is lacuna in our current law and the application of law of equity suits our local
circumstance. It is also mentioned that the law of equity would be persuasive but not binding in
nature. So it is very clear that in the case and our Civil Law Act 1956, the cut-off dates have stop
the developing law of equity after the said dates in England from applying to Malaysia though it
does not stop the judges from applying the cases as long as follows the conditions laid out and
persuasive in nature.
Q4. Generally, S.6 had clearly stated that our National Land Code is comprehensive and there is
no space for the application of English Law in our system. However, our National Land Code
itself has allowed such application, in one view that supported this, stating that in personam
claims regarding a land transaction is allowed. In NLC, the code stated that in Section 205(1)
which isonly dealings capable of being enforced under NLC are recognized by our statutory
system and no others such as contractual transaction. It is also supported that all the dealings
must be registered under Section 206(1). However, Section 206(3) stated that subsection (1) will
not affect the contractual operation of transaction regarding alienation of land. As it is not
registered and not recognize as dealings in NLC, it is in personam and not in rem as the claim
may only be enforcebele by the conscience of the parties to that particular transaction. The court
may grant equitable right due to this provision such as specific performance as to enforce the
said executed contracts. This view is supported in the case of Karuppiah Chettiar v
Subramaniam (1971) where the vendor had sold a piece of land to the buyer through a contract
but not registered. The vendor went bankrupt and the creditor claim the right over the sold land
via Prohibitory Order. The buyer applied to court to set aside the Prohibitory Order. The court
applied the concept of bare trust and since the vendor was trusted to hold the land until the
registration, the buyer is the legal owner of the land and thus may claim the ownership over the
land, thanks to the executed contract between the vendor and the buyer.