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8 Remedies--Specific Performance

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Queensland University of Technology

Equitable v Common Law Remedies • Equitable remedies flexible—more scope than at CL. • CL remedies basically limited to damages. • Discretionary and not as of right—court looks to conduct and may impose conditions: Riches v Hogben • Equity acts in personam. Order directed personally against the defendant. • Exclusive jurisdiction—equitable remedy for equitable right (eg breach of fiduciary duty) • Auxiliary jurisdiction—equitable remedy for CL right (eg specific performance for breach of contract) ← must show that CL remedy is inadequate. Classification • Personal equitable remedies: specific performance, injunctions, declarations, equitable compensation and damages, rescission, restitution, rectification, receivership, account of profits (Warman v Dwyer), delivery up. • Proprietary equitable remedies: constructive trust, tracing. (eg interest of a beneficiary under an administered trust is a proprietary interest, the interest under an unadministered estate is personal: CSD v Livingstone) Andrew Trotter LWB240 Principles of Equity VIII Specific Performance = order of the court directing a party to perform obligations under a contract • Discretionary • Equity’s auxiliary jurisdiction—equitable remedy for CL right—must prove that CL damages are inadequate • It can be awarded in either its proper sense to executory contracts, or in its wide sense to executed contracts: J C Williamson v Lukey v Mulholland Requirements 1. Valid binding contract • Contract valid & enforceable— o Offer, acceptance, consideration, certainty, intention to create legal relations o Not an illegal contract o Formalities: s59 PLA o Exceptions—  Fraud  Part performance  Equity raised by unconscionability (eg estoppel | constructive trust arising on failed joint endeavour) Valuable Consideration • Not necessarily the same as CL • Equity will not assist a volunteer = no valuable consideration → no remedy in equity o No recognition of deeds: Jefferys v Jefferys o Marriage consideration will suffice: Re Cooks Settlement Trust (fund for marriage & children —enforcing party to put money in fund) 2. Common Law damages inadequate • Only awarded in exceptional circumstances (cf. CL damages—as of right): Argyle Stores • Equity’s auxiliary jurisdiction—equitable remedy for CL right → must prove that CL damages are inadequate: Argyle Stores • Test—Damages inadequate where the aggrieved party would not be in as favourable a position in all material respects as if the contract had been fulfilled Considerations of the Court • Ability to purchase on open market o Shares in private company (SP) v Shares in public company (no SP) o Antique (SP) v common item (no SP) o Price fluctuates greatly → SP may be awarded even for common items: Cook v Rodgers o Mere shortage of supply will not suffice: Cook v Rodgers (Car—demand much higher than supply—mere delay—could be replaced  damages adequate) • D’s prior conduct o ← if indicating a continuous breach → no SP (pointless): Beswick v Beswick • [Ease of calculation of damages] Andrew Trotter LWB240 Principles of Equity o Calculation of damages inadequate or impossible → inadequate: Adderly v Dixon • Likelihood of D satisfying award of the court: Aristoc Industries v RA Wenham o eg where on brink of insolvency—specific performance better than damages • Type of contract: o Contracts for the sale of land  Presumption—Land is unique—generally damages inadequate → SP generally available: Adderley v Dixon; Dougan v Ley • Even in housing estates, unit blocks o Contracts for the sale of chattels  Presumption—CL damages adequate: Duncuft v Albrecht; Re Schwabacher  Unless item has special qualities— • Shares in private companies: ANZ Executors v humes • Taxi licenses & registration: Dougan v Ley (based on a quota system—only a limited number  damages not adequate → SP) • Unique, rare or of unusual beauty: Falcke v Gray • Particular commercial or sentimental value: Doulton Potteries v Bronette o Contracts to lend or pay money  Damages almost always relevant—money is money: South African Territories v Wallington  Except— • Agreements to provide money on security where money has been advanced • Agreements to pay annuities: Beswick v Beswick • Contracts benefiting a third party: Coulls v Bagot’s • Contracts concerning land: Turner v Bladin Discretionary Considerations • Discretionary factors may weigh against an equitable remedy being awarded— o Continued supervision o Personal services o Lack of mutuality o Hardship o Part only of agreement to be performed o Laches (defence) o Lack of writing (defence – PLA s.59) Continued Supervision Andrew Trotter LWB240 Principles of Equity = No SP if it will require constant supervision: JC Williamson v Lukey & Mullholand • Where— o complex contractual terms: JC Williamson v Lukey & Mullholand (giving P exclusive license to sell lollies in theatre—specific terms on types of goods, dress & behaviour of employees); Ryan v Mutual Tontine; o roping hostile parties together: Cooperative Insurance v Arguall Stores (Anchor tenant pulling out of shopping centre) • Except— o Some building contracts, if— (Wolverhampton Corp v Eimmons)  Work defined in contract  Plaintiff has a substantial interest in having the contract performed  Defendant has obtained possession of the land • Because would res
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