When claiming for specific performance of a contract, a plaintiff must prove that he had performed or had been at all times been ready and willing to perform his part of the contract. This willingness must exist from the time the claim is filed up until the decision of the court is handed down.

In the recent case of E-Apaci Sdn Bhd v 7-Eleven Malaysia Sdn Bhd, the Plaintiff decided at the last minute to abandon its claim for specific performance. After the conclusion of trial, and in its written submissions, the Plaintiff was silent on its relief of specific performance and specifically prayed for all other relief sought instead.

The High Court held that based on established authorities, having abandoned its claim for specific performance, albeit not expressly, the Plaintiff cannot now claim damages for breach of contract. Even though the High Court found that there was a breach of contract, the Plaintiff’s various claims for damages for breach of contract nevertheless failed.

The Plaintiff, despite being warned of the consequences of abandoning the relief for specific performance, chose to stay the course and did not apply to amend its statement of claim to correct any inadequacies and inaccuracies. The Plaintiff has since appealed to the Court of Appeal.

This decision should serve as a reminder of the dangers of abandoning a claim for the relief of specific performance.

The Defendant, 7-Eleven Malaysia Sdn Bhd, was successfully represented at the High Court by our Partner, Hoi Jack S’ng, who was ably assisted by his associate Tiffany Low Jia Qi. The full grounds of judgment by the High Court are available here.

If you have any queries, please contact Hoi Jack S’ng (hjs@lh- ag.com) or Tiffany Low Jia Qi (tif@lh-ag.com).