Remedies other than damages Flashcards
(11 cards)
Sky Petroleum v VIP Petroleum
The Court applied the adequacy of damages test:
damages can be inadequate given the surrounding circumstances, or where they are difficult/impossible to quantify.
Suppliers of petrol under a contract were refusing to continue to supply during an on-going oil crisis which meant that the purchaser under the contract could not obtain supplied of petrol from alternative sources.
The surrounding circumstances meant that damages were not an adequate remedy.
Ryan v Mutual Tontine
A lease contained a term giving the tenant a right to have a resident porter “constantly in attendance” at a block of flats.
Court gave damages rather than specific performance as enforcing the latter would require constant supervision.
Posner v Scott-Lewis
Distinguishes Ryan.
The landlord was under an obligation to employ a resident porter to keep the communal areas clean, collect rubbish from the flats and maintain the central heating and boilers. The landlord duly employed someone to perform these tasks, but he was not actually “resident”.
Held: ordered the landlord to find a resident porter within 2 months, finding the obligation under the contract to be sufficiently clear and not requiring unacceptable levels of supervision by the court.
Lumley v Wagner
Breaches of contracts for personal services will generally not be remedied by specific performance.
An opera diva, Johanna Wagner, had contracted to sing at the plaintiff’s Her Majesty’s Theatre for two nights a week for three months. Then broke contract to get a better rate at Covent Garden.
The court refused to decree specific performance but it granted an injunction preventing her from singing elsewhere. In practice, this created a strong incentive for the defendant to perform her obligations under the original contract.
Warner Bros v Nelson
Took the Lumley approach.
Bette Davis had contracted to render her acting services exclusively for the benefit of Warner Bros for a period of several years. She subsequently agreed to act for a third party, in breach of that agreement.
Court granted an injunction preventing her from acting with any other movie company.
Warren v Mendy
Warner Bros has gradually been ostracised as an authority.
A boxer had conracted for Warren to act as his manager for 3 years, with a covenant not to employ anyone else as manager. He subsequently breached the contract and employed Mendy.
The court considered that an injunction would have the same effect as specific performance.
Compulsion is a question to be decided on the facts of each case.
7 factors affecting the decision whether to grant specific performance.
- Delay (laches)
- Whether party seeking remedy is prepared to perform their side of the bargain
- Benefit versus cost analysis
- Hardship
- Consideration (“equity will not assist a volunteer”)
- Equity clean hands principle
- Whether or not mutuality exists (i.e. both can be specifically performed – Price v Strange)
Patel v Alli
Hardship factor.
Mrs Ali contracted to sell her house to Mr Patel at a time when she had one child and was in good health. She spoke poor English. Through the fault of neither party, completion was delayed. By the time the court had to consider whether specific performance should be granted in favour of Mr Patel, Mrs Ali had had two more children and cancer had required the amputation of her leg. She claimed that specific performance would require her to move and her poor English, together with her disability, made her very much reliant on the assistance of friends and relatives living close by the home she had contracted to sell.
Goulding J exercised his discretion not to order specific performance, subject to Mrs Ali paying into court a sum of money ensuring Mr Patel would receive his damages, once calculated. Specific performance here would inflict a “hardship amounting to injustice”.
Four criteria before rectification can be sought.
- a concluded prior agreement must have been in existence, upon which the subsequent written (erroneous) document was based;
- the written document must fail to register that which was actually agreed by the parties;
- the written document must fail to register the common intention of the parties.
- it must be equitable to grant the remedy. If third parties have accrued rights based on the written document, for example, rectification may be refused.
Clark’s notes on rectification
“[t]he remedy of rectification is not dispensed liberally to litigants” and “the onus resting upon the party seeking rectification is a heavy one, for that person must adduce convincing proof, manifested in some outward expression of accord, which shows that the common continuing intention of both parties was in favour of the term omitted from the written document.”
Kiely v. Delaney
- A contract for the sale of land was entered into by the parties on the mistaken belief that a right of way (which was important for access) was included.
- In fact, the right of way had been sold in a previous sale of a strip of land. Although the purchaser still wished to take the land with the defect, the vendor wished to rescind
- MacMenamin J pointed out that a vendor is not entitled to rescind capriciously or arbitrarily and he went on to state that imprudence or recklessness on the part of one party to a contract may go so far as to bar that party from rescinding where he otherwise would be entitled so to do.
