Rectification

 Rectification is a remedy whereby court

orders a change in a written document to
reflect what it ought to have said in the
first place.
 It is an equitable remedy, which means
the circumstances where it can be applied
are limited.
 Fowler v Fowler (1859) 4 DeG & J
250 at 264
 "Only after the court has been satisfied by evidence
which leaves no 'fair and reasonable doubt' that the
deed impeached does not embody the final intention of
the parties. This evidence must make it clear that the
alleged intention to which the plaintiff asks that the deed
be made to conform, continued concurrently in the
minds of all the parties down to the time of its
execution; and the plaintiff must succeed in showing
also the precise form in which the instrument will
express this intention."
 Specific relief Act 1950
 Ss.30-33
 S.30:
 What? -Contract/instrument in writing
 WHY? -Does truly express their intention either
party/or his representative
 Who? -Those parties may apply for rectification
 HOW?-Fraud/mistake in framing the instrument;
 Court will ascertain the real intention of
the parties
 Court may in its discretion order rectification
 Provided: without prejudice to the rights
acquired by third parties/person in good
faith and for value.
 S.31 Presumption as to the intent of
parties
 All parties intended to make an equitable

and conscientious agreement.


 Section 32: Power of the court to make
enquiry as to the true intention of the
parties
 Section 33: Rectified document capable of
specific performance
 See illustration to s.33.
 CHEE LUI TEEN V KIET HOE DEVELOPMENT
SDN BHD

[1988] 1 MLJ 514
 Principle- Whether rectification is an appropriate
remedy

..a court should be cautious in allowing a rectification of

any written instrument. It is not the function of the court
to re-write an agreement which the parties had entered
into nor should it allow a party who subsequently found
that the terms of the agreement were unfavourable to
him, and to avoid performance sought the assistance of
the court to rectify it under the guise that the agreement
did not reflect the common intention of the parties
 For example
 No mistake whatsoever in the making of
the agreement.


fully contained what had been agreed by

both parties prior to the signing of
the agreement;
 thus  rectification is certainly not the

proper remedy in cases of this nature.

 Oh Hiam & Ors v Tham Kong [1967] 1
MLJ 65 where Gill J.
       "It is clear from the authorities that, although the
agreement in the present case is not a nullity, the courts
in England would order rectification of such an
agreement provided the following conditions are
satisfied:
 (a) there must be an actually concluded contract
      antecedent to the instrument to be rectified, as the
court will not make a new agreement for the parties;
 (b) there must be clear evidence of the real intention;
 (c) there must be a mistake common to both
      parties, and it must have existed at the time of the
execution of the instrument;
 (d) the mistake must be exactly proved, i.e. the
      plaintiff must show the precise form in which the
instrument ought to be drawn up and
 (e) the mistake must be one of expression only.
 A written contract or a deed may be rectified even if the
parties can no longer be restored to the position occupied
when the contract was made, and even though the
mistake has been embodied in a deed of conveyance.
      Extrinsic and even parol evidence will be admitted to
ascertain the true intent of the parties, notwithstanding
that the contract is on which is required to be under seal
or one which the Statute of Frauds requires to be
evidenced in writing."
 SOUTHWIND DEVELOPMENT SDN BHD V HASS
PLANTATION SDN BHD, [1996] 5 MLJ 85,  RICHARD
MALANJUM J

Mutual/common mistake – Whether

rectification should be allowed –
Elements to be established - ...
 facts
 The defendant company wanted to develop certain lands
including two lots on which the plaintiff had erected
certain buildings. In order to acquire vacant possession
of the said lands, the defendant company decided to
transfer another land (Lot 36) to the plaintiff. The latter
undertaking was embodied in a written agreement.
Thereafter, due to certain governmental planning, the
area of Lot 36 was increased considerably. The
defendant company therefore sought compensation for
the increased land from the plaintiff which the plaintiff
refused to give. The defendant company filed a
counterclaim seeking rectification of the agreement or
alternatively compensation for the increased land.
 Held, dismissing the counterclaim:
 (1)   the principles advocated in the cases cited clearly show that a
court
should be cautious in allowing a rectification of any written
instrument. It is not the function of the court to re-write an
agreement which the parties had entered into nor should it allow a
party who subsequently found that the terms of the agreement were
unfavourable to him, and to avoid performance,
sought the assistance of the court to rectify it under the guise that
the agreement did not reflect the common intention of the parties;
 (2)   there was no mistake whatsoever in the making of the
agreement. It fully contained what had been agreed by both parties
prior to the signing of the agreement;
 (3)   rectification is certainly not the proper remedy in cases of
this
nature.


Held, allowing the plaintiff's application:

 (1)   It is common ground that before any rectification can be
made there must have been incidence of mutual mistake. Lim Hong
Shin v Leong Fong Yew (1922) 2 FMSLR 187 followed.

  (2)   The mistake of one party to a contract is not a good ground

for
rectification. For a mistake to be mutual, it must be common to
both parties and it is essential that the parties should have had
precisely the same intention on the point on which the document is
inaccurate. In a proper case the court will amend the language of
an instrument for the purpose of making it accord with the true
intention of the parties, having ascertained what that intention was
and also that the words as they stand fail to express it
  (3)   In deciding whether mutual mistake has been made
out the court must be
satisfied that all the parties thereto intended to make an
equitable and
conscientious agreement and must enquire on the
intention of the agreement
and its intended legal consequences and not confine the
enquiry to what the
language of the instrument was intended to be. The case
for rectification
must be made out having regard to the evidence and
circumstances of the case
(see p 89F-G); Oh Hiam & Ors v Tham Kong [1980] 2
MLJ 159 followed.
 [1997] 3 MLJ 211, SEGAR OIL PALM ESTATE
SDN BHD V TAY THO BOK & ANOR, COURT OF
APPEAL (KUALA LUMPUR)

Contract - Rectification - Sale and purchase of land
- ...
... identify of subject matter of the contract but only to
apart of its character - Whether court could order
rectification of the agreement - Specific Relief Act
... partial rescission of an invisible contract amounted
to a total repudiation of the contract - Contracts Act
1950 ...
Recovery of - Repudiation and termination of contract
brought by misrepresentation of ...
... purchasers claimed for the rectification of the
agreement

16.[1980] 1 MLJ 32, YUSON BIEN & ANOR V BANKERS
TRUST CO LTD, FEDERAL COURT CIVIL APPEAL NO 164
OF 1977,
 Contract - Rectification - Mutual Mistake - Sale of ...
... auction or by private contract. They caused a
valuation of the ...
... judge was right to refuse rectification as there was
no equitable ground for making an order of
rectification. There was no question of mistake on
the ...
...
 Rescission

TENGKU ABDULLAH IBNI SULTAN ABU

BAKAR & ORS V MOHD LATIFF BIN SHAH
MOHD & ORS AND OTHER APPEALS
 [1996] 2 MLJ 265
 Pursuant to s 19(1) of the Contracts Act 1950 and s
34(1) of the Specific Relief Act 1950, the usual remedy
by which an innocent party may relieve himself of all his
obligations under a contract procured by undue
influence is rescission (see p).

 (15)   The Specific Relief Act 1950, however, does not

prohibit against the grant of some other kind of relief to
a party who seeks to remedy a wrong perpetrated upon
him by another in consequence of exerting undue
influence in the wider sense which existed in this case
(see p).
 The doctrine of the bona fide purchaser
for value without notice finds expression,
in the context of the specific enforcement
of contracts, in s 26(b) of the Specific
Relief Act 1950.

Tg Abdullah case – per incuriam

 The effect of rescission is to restore the
plaintiff 'to the position he would have
been in had the contract not been made'
(Snell's Principles of Equity (28th Ed,
1982) at p 606).
 An award of damages in lieu of rescission
must achieve the same result.
 Declaration

SI RAJAH & ANOR V DATO MAK HON KAM & ORS

[1993] 3 MLJ 741
 Civil Procedure - Jurisdiction - Declaration - Whether court has
jurisdiction to grant orders when no relief is available - Rules of the
High Court O 15 r 16 - Specific Relief Act 1950 s 41
Civil Procedure - Locus standi - Declaration and injunctive relief
against members of society - Whether plaintiffs had locus standi to
bring representative action - Whether personal action
 The plaintiffs applied for declaratory orders that:

 (i) the first to ninth defendants were not members of the Peoples Progressive
Party of Malaysia ('PPP');

 (ii) the appointment of the first to ninth defendants as office bearers of PPP was
null and void;

 (iii) the tenth and twelfth defendants, having resigned from their posts, had
ceased to hold their respective posts;

 (iv) all the defendants be restrained from acting or holding out as office bearers or
interfering with the affairs of PPP; and

 (v) the first plaintiff be appointed to attend to the day to day affairs of PPP under
the supervision of the Registrar of Societies. The plaintiffs had earlier obtained an
interim injunction to restrain all the defendants from doing the things mentioned
above.

During the trial, the defendants raised a preliminary issue, namely, whether the
plaintiffs were entitled to the prayers sought as:

 (i) the first plaintiff was a bankrupt and not holding an official post in the PPP;

 (ii) based on their own pleadings, both the plaintiffs were not entitled in law to the
reliefs;

 (iii) as the action was not a representative action but a personal action, the plaintiffs
had to show that their legal rights to any property had been infringed or that they
had suffered loss of any office or deprivation of any status or interest pursuant to s
41 of the Specific Relief Act 1950; and

 (iv) the plaintiffs could not ask for the declarations by virtue of the Societies Act
1966. On the other hand, the plaintiffs contended that they need not go under s 41
of the Specific Relief Act 1950 but could rely on O 15 r 16 of the Rules of the High
Court 1980 ('the RHC') to seek the declarations.