rectification “….
rectification gives relief from the
outline inflexibility of common law and the relief
Introduction directly deals with the inconsistency
Doctrine/maxim between the instrument and the intention of
Definition the parties which forms the agreement’
Rectification under the specific relief act
1950 Rectification may be effected by the consent
Grounds/requirements for rectification of the parties. It remains the court’s
Who can apply for rectification discretion to grant rectification if there is no
Limits to remedy of rectification (defences) other alternative remedy
(Jhon MCGhee Snell’s Equity, 32nd edition,
Introduction 2010 p.450
Rectification is a remedy whereby a court Rectification under the specific relief act
orders a change in a written document to 1950
reflect what it ought to have said in the first Section 30 – 33 of Specific Relief Act 1950
place.
Maxim/doctrine: Doctrine of Rectification
“Equity looks at the intention rather than Who can apply for Rectification
form “ Conditions necessary
Equity looks to the spirit and not to the Rectification of Instruments and Specific
letter, performance with variation-distinguished
It looks to the intention of the parties and When instrument may be rectified
not to the words,
It looks to the realities rather than to the When instrument may be rectified?
mere appearance. Section 30.
In English law, the rule was summarised in When, through fraud or a mutual mistake of
Fowler v Fowler (1859) 4 DeG & J 250 at the parties, a contract or other instrument in
264 as follows: writing does not truly express their
intention, either party, or his representative
"Only after the court has been satisfied by in interest, may institute a suit to have the
evidence which leaves no 'fair and instrument rectified: and if the court find it
reasonable doubt' that the deed impeached clearly proved that there has been fraud or
does not embody the final intention of the mistake in framing the instrument, and
parties. This evidence must make it clear ascertain the real intention of the parties in
that the alleged intention to which the executing the same, the court may in its
plaintiff asks that the deed be made to discretion rectify the instrument so as to
conform, continued concurrently in the express that intention, so far as this can be
minds of all the parties down to the time of done without prejudice to rights acquired by
its execution; and the plaintiff must succeed third persons in good faith and for value.
in showing also the precise form in which
the instrument will express this intention." Presumption as to intent of parties
Whiteside v whiteside [1949] 2 ALL ER 913 Section 31.
Evershed MR: For the purpose of rectifying a contract in
writing, the court must be satisfied that all
the parties thereto intended to make an jurisdiction in personam on grounds of
equitable and conscientious agreement. conscience.”
the seller, oh hiam, acting as the
Principles of rectification (requirements) administrator of the deceased formed a
written agreement with the defendant, tham
Section 32 kong to vend to him land which consisted of
In rectifying a (i)written instrument, the seven lots. of these lands, six were rubber
court may enquire what the instrument was cultivating lands, forming one region in
(ii) intended to mean, and what were (iii) gombak and the other one was a half "arce
intended to be its legal consequences, and is land located in setapak. the lot in setapak
not confined to the enquiry what the comprised of a residential building in which
language of the instrument was intended to oh thiam’s wedded daughter and family
be. resided with a few others. The transfer was
enlisted in the defendant’s name or that of
Specific enforcement of rectified contract his family. After some months went by,
Section 33 when the defendant tried to collect rent from
A contract in writing may be first rectified the residents of the setapak land, it came
and then, if the plaintiff has so prayed in his across that there had been a **mistake in the
plaint and the court thinks fit, specifically sale since it was not the intention of Oh
enforced. Thiam to include the setapak land. He then
sought for a rectification and a retransfer of
Oh Hiam v Tham Kong [1980] 2 mlj 159 entitlement of the land in setapak against
repayment.
Although the law concerning tenure of land
in West Malaysia is governed by the Land Mistake
Code, equitable principles have been applied The mistake is mutual where the parties
as can be seen in Wilkins & Ors v misunderstand each other and are at cross
Kannammal (f) and Anor [1951] 1 MLJ 99 purpose . In unilateral mistake, one only of
CA where Taylor J delivering the judgment the parties suffers from some mistake.
of the Court held: (Syed Agil Barakbah lp, Tham Khong v oh
hiam & Ors)
“The Torrens system is a system of fraud
conveyancing; it does not abrogate the In the absence of mutual mistake (only
principles of equity.” unilateral mistake) the party applying for
rectification must prove fraud of the other
Oh Hiam & Ors v Tham Kong [1980] 2 MLJ party (the other party aware of the mistake)
159 A Roberts & Co Ltd v lecestershire CC
Likewise, in the Privy Council case of Oh [1961] Ch. 555
Hiam & Ors v Tham Kong [1980] 2 MLJ The duration of contract was altered by the
159 Lord Russell of Killowen said: defendant without the knowledge of the
plaintiff. Plaintiss signed the contract
“The Torrens system is designed to provide without noticing the change, one of the
simplicity and certitude in transfer of land defendant’s official was aware of the
which is amply achieved without depriving mistake.
equity of the ability to exercise its Court ordered rectification.
Standard of proof
Zakaria daud v siti hussin [2004] 1 clj 844
p.846
Sri ram jca adopted the test of strong
irrefragable (not able to be refuted or
disproved; indisputable) evidence and
concluded that the evidence:
…should be cogent (clear, logical, and
convincing) and must meet a very high
standard of proof.
Who can apply?
Plaintiff
Defendant
Plaintiff’s and defendant’s representative in
interest
Defences/grounds for refusal of rectification
Delay/laches (delay defeats equity)
Bona fide purchaser
Uniletaral mistake
Acquiescence (equity helps the vigilant and
those who slumber on their rights)
