May it please the tribunal.

I’m Syazana, counsel on behalf of the Defendant, Baken Diamond

Mine.

Mr. President, the case before us concerns the issue of specific

performance which is to deliver a diamond according to the

agreement.

Do Mr. President find the brief summary of the facts of the instant

case given by Appellant helpful? If Mr. President allows, may I have

my client to add few significant details to the fact of the case?

*Kartinee’s part. You have to tell the tribunal about the strike

that happened at your mine*

Thank you Mr. President.

Based on the facts given by both parties, it is Defendant’s position

today that specific performance should not be granted based on 3

grounds, which are,

First, monetary compensation is adequate,

Second, the contract between both parties involved personal service,

Third, in any event the tribunal grant specific performance, it is our

position that it will cause hardship to the Defendant.

Mr. President,

It is our stand today that specific performance cannot be granted

because the monetary compensation is adequate.

According to Section 20 (1) (a) of SRA, a contract for the non-

performance of which compensation in money is an adequate relief

cannot be specifically enforced. However, SRA is silent on what

constitute inadequacy of damages to enable the court to award SP,

thus, it will up to the discretion of the court to determine either

damages is adequate or vice versa.

We strengthen our argument by referring to the case of Mesuntung

Property Sdn Bhd v Kim Lin Housing Development, where the

court held that the appellant’s claim, whether it fails or not, should be

determined by the court.

Thus, in our instance case, we humbly submit to the tribunal to

consider that the compensation given by our client to the App is

adequate. Our client tried to mitigate the App’s loss by returning the

deposit that was paid by the App and on top of that, Defendant also

proposed to pay extra RM 5 million to give way for App to find

another diamond. This monetary compensation, Mr. President, should

be considered as adequate.

Moving on to our next ground,

We submit that the contract between Baken Diamond Mine and

Jimmy Ciao involved personal service, in which, it is based on the

efforts of the individual, which, in this case, efforts by our client,

Baken Diamond Mine.

According to Section 20 (1) (b) of SRA, SP cannot be enforced to a

contract that is so dependent on personal qualifications. It is presumed

by the court that anything that involved personal skill, specific

performance cannot be granted.

In the case before us, the mine employees provide their personal

service in order to get the diamond from the mine, and these

employees are equipped with professional license. In order to

strengthen our argument, we refer to the case of Mohd Ahmad v

YDP Majlis Daerah Jempol, the FC held that, court will not order

SP on a contract of service. Therefore, it is our submission today, that

the contract to deliver the diamond should not be enforceable as it is a

contract of personal service.

In any event the SP will still be granted, it is our submission that the

order for SP will cause hardship to Df.

It was stated in Sec 21 (2) (b) of SRA that a court may refuse to grant

the relief of SP to the App if the granting of it would involve some

hardship on the Df which he did not foresee.

In the instance case, we contend that should the SP be granted to the

App, it would cause hardship to our client. This is because, Df is

unable to supply the diamond due to the internal problems that they

were having. On top of that, it would never be easy for Df to get new

employees as the employees need to be trained for at least 3 months

which makes it impossible for the Df to make it in time for the App’s

exclusive launch party.

*Kartinee’s part. More drama pasal the mogok. You can say it is

impossible cari pekerja baru la, takdak pekerja and all*

Thus, it is our humble submission that the tribunal should take into

consideration the fact that the SP will cause hardship to our client.

Based on the submissions above, we humbly request for the tribunal

to reject the claim for specific performance made by the App based on

3 grounds, which are,

1. Monetary compensation is adequate

2. Involved personal service

3. Involved hardship.

Thank you Mr. President for your time and attention.