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LAWS1001 Advanced Contract Law > Equitable Remedies > Flashcards

Flashcards in Equitable Remedies Deck (12)
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what is specific performance

- Court order requiring a party to perform their obligations.
- Originally only used to compel a party to sign a conveyance
› e.g. for sale of land
› Less limited today
- Typically used to compel a seller of unique goods to sell, especially land
› Or in insolvency (as damages inadequate).
- Equitable remedy – discretion of the court.
› JC Williamson Ltd v Lukey
- used where common law provides no appropriate remedy.
› Dougan v Ley
- P must show that they are ready, willing and able to perform (or already have performed).


SP discretionary factors

- Will damages suffice?
- Will it cause undue hardship to D? (manifest injustice)
- Is there a delay by P in acting?
- Impossibility, illegality, futility?
- Is it a contract for personal services?
- Does it require constant supervision?
- Is the contract otherwise defective?
- Is there unfair conduct by P entitling D to rescission such as:
› undue influence,
› unconscionable dealing,
› misrepresentation
- Is there a reasonable mistake by D + resulting unfairness?
- Is P ready, willing and able?
- Is P in substantial breach?


SP limitations

- Not used where damages will suffice
- Not available where it would cause undue hardship
› Balancing the hardship
› Onus is on the defendant to show undue hardship
› Mere financial difficulty is not hardship
- Generally, not available if undue delay in seeking it.
- Must be mutually available
› Boyd v Ryan (1947) 48 SR (NSW) 163
§ P was infant at the time of signing for sale of land and as at the commencement of the suit, so no SP
› Onus on defendant to prove that it was not mutually available
› Satisfied if mutuality is available at time of commencing action even if not available when making the contract
- Not available to enforce contracts of personal service
- Not generally available for contracts that would require constant supervision
› Balancing the problems of enforcement against the hardship that the plaintiff will suffer
- Not available where the contract is otherwise defective


SP procedural aspects

- Even though suing for specific performance, the plaintiff can change their mind and treat the contract as discharged and sue for damages
- Once specific performance has been ordered, the contract cannot be discharged except by performance or leave of the court
› This includes if the plaintiff wants to rescind.


what is an injunction

- Equitable remedy – discretion of the court.
- Kind of like specific performance in reverse.
› Lumley v Wagner
- Not normally granted where damages are an adequate remedy unless this amounts an unnecessary injustice.
- Plaintiff must show that they are ready, willing and able.


prohibitory injunctions

- Most common.
- Usually to stop someone doing something they have promised not to do.
› E.g. enforcing a restraint of trade clause
§ Hamilton v Lethbridge (1912) 14 CLR 236 - Injuncting a solicitor from practicing within 50km of his principal
§ Warner Bros Pictures Inc v Ingolia [1965] NSWR 988 - Singer who broke contract to sing with another company was injuncted


mandatory injunctions

- Less common.
- Compels performance of some obligation by prohibiting a defendant from doing anything other than what they agreed to do.
› Enforcement of a term of the contract in isolation
› Generally specific performance will not be ordered for part of a contract


limitations of injunctions

- Not normally granted if there is no danger that the breach complained of will continue (‘equity does nothing in vain’)
- Not normally granted if its effect is to compel specific performance which would not have been otherwise granted
› E.g. contracts for personal service
› Page One Records Ltd v Britton [1968] 1 WLR 157
§ Troggs ditch band manager for new manager – court declines injunction
› But see Warner Bros Pictures Inc v Nelson [1937] 1 KB 209
§ Injunction granted against Bette Davis from acting for others if in breach of contract
› And Buckenara v Hawthorn Football Club Ltd [1988] VR 39
§ Serious Question, Irreparable Harm, Balance of Convenience


what is restitution

- Equitable remedy – discretion of the court.
- Restoring something where it would be unjust to keep it.
- Based on the concept of unjust enrichment
› D has received a benefit (enrichment).
› At the expense of P.
› Would be unjust to let D retain benefit.
§ Wrongdoing or breach is not necessary.
- Not strictly a contractual remedy.
- Will not normally be ordered where damages are a more appropriate remedy.


2 main restitution claims

› P claims money paid in err or where there has been ‘total failure of consideration’.
› P claims ‘reasonable remuneration for work done.


recovery of reasonable remuneration

quantum meruit - as much as he has earned


quantum meruit

› Where p confers a benefit (goods/services etc.) but ends up with no contractual mechanism to get paid for them
› Restores the value of the benefit conferred.
§ Note: this may be more than the contract price.
› Awarded in contract and quasi-contract.
§ Contract.
§ Where the actual price was not agreed or specified.
§ Way v Latilla
§ Quasi-contract
§ Some issue or defect (e.g. void, invalid, never eventuated).
§ Pavey & Matthews Pty Ltd v Paul.
› Awarded where an ‘entire’ contract is wrongfully discharged (repudiated) or obstructed.
› Not available to a party in breach (d gets the windfall).
§ Sumpter v Hedges
§ Steele v Tardiani