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9 Remedies--Injunctions and Declarations

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IX Injunctions & Declarations = Equitable order restraining a person from performing or requiring a person to perform an act • Discretionary—if not awarded plaintiff may pursue damages in lieu of injunction: Lord Cairns Act Classification • Mandatory ↔ Prohibitory • Interlocutory/interim ↔ perpetual/final • Quia Timet: to restrain apprehended wrongs (can be heard ex parte): Redland Bricks v Morris • Mareva Injunctions: to prevent defendant from dealing with assets • Anton Piller Orders: to give permission to enter, inspect & seize goods from D’s premises Jurisdiction • Exclusive jurisdiction—equitable remedy for equitable right—no need to prove CL damages inadequate o to prevent an unreasonable restraint of trade: Buckley v Tutty o to prevent a trustee committing a breach of trust: Park v Dawson o to prevent an untrustworthy executor from dealing with estate assets: Bowen v Phillips o to prevent a breach of confidentiality: Duchess of Argyll v Duke of Argyll • Auxiliary jurisdiction—equitable remedy for CL right—must prove CL damages inadequate o To prevent multiplicity of CL actions: Commissioner of Sewers of London v Gellaltly o To restrain infringement of a CL right, contractual, tortious or statutory: Wolverhampton and Walsall Railway v London and North West Railway o To restrain a private nuisance: Vincent v Peaclock o To restrain trespass to land: Graham v KD Morris & Sons 1. Infringement or potential infringement of established legal right • Must be recognised at law: Victoria Park Racing and Recreation Ground v Taylor (right of freedom of speech) o Breach of contract 2. CL damages inadequate (only in auxiliary jurisdiction): = Where CL damages do not reasonably compensate the plaintiff: Evans Marshall v Bertola (continuing trespass of a crane—18 mths—affected resale value of property  injunction granted) Andrew Trotter LWB240 Principles of Equity • 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] 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 3. [That the legal right to be protected is proprietary in nature] • Previously given to protect only proprietary rights—has now been eroded—no longer an impediment Cardile v LED Builders Contexts • Enforce negative covenants (Promises not to do something): Doherty v Allman • Aiding statutory rights Andrew Trotter LWB240 Principles of Equity NB If— • CL damages inadequate but injunction fails; or • Party seeking to prevent injunction, Look at damages in lieu of injunction (Lord Cairns’ Act)  Andrew Trotter LWB240 Principles of Equity T YPES OF INJUNCTIONS Enforcing negative covenants • A negative covenant is a promise not to do something: ACOA v Cth (seeking injunction to stop collection of union fees—actually a positive covenant ← require them to make a reduction  no injunction) • May be express or implied: ACOA v Cth • Concurrent CL jurisdiction—to restrain repetitions of breaches of contract: Doherty v Allman • No injunction where— o Damages an adequate remedy in a contract for chattels o In essence a positive obligation trying to be enforced: ACOA v Cth o it would result in destitute idleness: ACOA v Cth o The practical result of enforcing negative covenant is to positively enforce the contract for personal services: Page One Records v Britton (eg enforcing restraint of trade → no choice but to fulfil original contract); Corro v Beyond Productions (Negative covenant not to work for competitors  injunction awarded ← could take other forms of employment | not of a long duration | damages not adequate to BP) ← effect of injunction cannot be the same as SP • ← Considerations— (Corro v Beyond Productions) 1. Length of duration of the injunction Longly v Wagna (opera singer—3 month restraint of trade → not destitute idleness → injunction granted) 2. Does the Specific enforcement enforce a contract for personal services 3. Does it force a choice between contract and destitute idleness (ability to work in alternative capacity)  Alternative work available need not be in the same field: Longly v Wagna (opera singer—restrained from singing for other companies but not from other work—not destitute idleness) 4. Adequacy of damages • Constant supervision required (complex contractual terms | roping hostile parties together) JC Williamson v Lukey & Mullholand o Except—  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 o Because would result in courts personally supervising contracts: CH Giles v Morris & more litigation: Wolverhampton v London Aiding statutory rights • Injunction may be used to protect against a breach of statutory right (even where not proprietary): Cooney v Kuringai Council • Statute expressly / impliedly excludes any other remedy than those provided → injunction not available: Ramsey v Aberfoyle Manufacturing CO (Aust) • Statute confers private rights on an individual → injunction available: Bradley v Cth Andrew Trotter LWB240 Principles of Equity • Statute confers open standing → gives individual or a body standing even where no private right infringed: Cooney v Kuringai Municipal Council o Giving standing to any person o Giving standing to local authorities: eg s80 TPA; Brisbane CC v Brindles (Council with specific right to close unlawful dance hall) • Statute confers public rights → individuals don’t have standing: Bradley v Cth ↓ Grounds for individual standing • Where individual gets the fiat of the Attorney-General: Cooney v Kuringai Municipal Council • Public right is infringed and— o A private right is also infringed: Boyce v Paddington (eg car blocking street (public nuisance) & blocking person’s driveway (private right)); or o Special damage has been suffered: Boyce v Paddington; or  = any substantial damage that is distinct from or goes beyond that to the general public and is not too remote  Is not relevant that the same damage will affect a particular defendant to a higher degree: Anderson v Cth (importing of sugar—only damage was the increase in sugar price—would affect everyone)  Financial loss due to increase competition will not suffice—D’s actions must have directly affected P’s business: California Theatres v Hoyts o Plaintiff has a special interest: Onus v Alcoa (Aboriginal community sekking injunction to preserve particular relics in accordance with archaeological legislation  cultural significance of relics | emotional interest | long association with the land → special interest → standing)  Mere emotional interest has been said to be insufficient: Conservation Foundation v Cth (must be more than mere intellectual interest or emotional concern) but it appears that the court is now taking a more liberal approach: Onus v Alcoa Breach of Criminal Law • Breach of statute is an offence → no injunction in equity except in exceptional circumstances: Elliot v Seymour (equity has no criminal jurisdiction) • Except where— o Act complained of both an infringement of a public right and a crime: A-G (on the relation of Daniels) v Huber • Offence frequently repeated in disregard of an inadequate penalty: Attorney-General ex. rel. Meat & Allied Trades Federation of Australia v Beck (butchers constantly opening out of hours—5 previous prosecution—no remorse  injunction awarded) • Emergency situations: A-G v Chaundry Andrew Trotter LWB240 Principles of Equity • The statute’s object is the health, safety and welfare of the public: Cooney Mandatory Injunctions = compels to perform an act • Types o Enforcing injunctions—similar to SP: compels someone to fulfil contractual obligations o Restorative injunctions—compels someone to repair the consequences a wrongful act o eg— built a house in contravention of building regulations → demolish it. • Plaintiff to prove— (Redland Bricks Ltd v Morris (gardeners digging on adjoining property causes landslide—damage suffered $1.5K | cost of repairs $30K → no injunction)) o Strong probability of grave damage in the future o Damages inadequate o Court’s discretion favours an order having regard to conduct of D and costs of restorative work  ← good working rule: Shelter v City of London per Smith LJ o Injunction clearly worded—D’s obligations clear Interlocutory Injunctions = to maintain the status quo until main hearing • May be applied for ex parte 1. Serious question to be tried = that the claim is not vexatious or frivolous: American Cyanamid v Ethicon o No longer a need to prove a ‘prima facie entitlement to relief’ (Ethicon lowered the standard) o No requirement to evaluate probability of success at trial • A ‘triable issue’: Murphy v Lush o ← ‘triable issue’ = ‘not vexatious or frivolous’: Qld Industrial Steel (interlocutory injunction to restrain breach of restraint of trade—concerns about confidential information  triable issue—whether restraint of trade clause enforceable | balance of convenience—D would lose new job, but could be compensated by damages ↔ difficult to quantify potential loss from breach of confidentiality | undertaking given → injunction granted) 2. Balance of Convenience favours granting the injunction • = balance—damage suffered by plaintiff if injunction not granted ↔ damage to defendant if granted: Beecham • Factors— (American Cyanamid) o Look at potential damage suffered by each party o damages adequate if plaintiff successful at trial → no injunction Andrew Trotter LWB240 Principles of Equity  eg—damages may not be adequate where difficult to quantify damages: Qld Industrial Steel (breach of confidentiality) o alternative remedies available → no injunction o P gives undertaking to pay damages to D if unsuccessful at trial → injunction  May be refused in the absence of such an undertaking: Cambridge Cr Corp v Surfers Paradise Forests  Or where P has no capacity to pay damages so undertaking meaningless in any case o Stronger case necessary where—  Mandatory injunction  Interlocutory injunctions with a final effect  Injunction against public interest (eg to prevent alleged defamation) o Interests of third parties in exceptional circumstances: Clarke v Japan Machines o Delay in bringing action (casts doubt on reality of plaintiff’s injury) o [Merits of the case] Qua Timet Injunctions = to prevent threatened unlawful interference with the exercise of the plaintiff’s rights • Plaintiff must show— • strong probability that defendant’s actions will cause imminent and substantial damage to the plaintiff’s property or business: Redlands Bricks v Morris Mareva Injunctions = restrains a defendant from removing any assets from within the jurisdiction or otherwise dealing with assets either within or outside the jurisdiction: Mareva Compania Naverua SA v Internati
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