Equitable Remedies

Question 1

Principles in common of equitable remedies

Answer 1

1. Damages must generally be inadequate
2. Remedies are discretionary (at the discretion of court). This differs common law, damages are available as of right.
3. Equitable maxims: most notably: he who comes to equity must come with clean hands
4. Delay in pursuing an equitable remedy may prevent claimant securing relief, particularly where the delay causes unfairness to teh defendent or amounts to acquiescence.

Question 2

Injunctions

Answer 2

1. a court order that requires party:
   (a) to refrain from doing sth (prohibitory or quia timet injunctions); or less often
   (b) to do sth (mandatory injunctions).
2. Injuctions can be granted prior to commencement of proceedings or at any time up to trail (interim injunctions) or at trial (final or perpetual injunctions).
3. The court may grant an injunction in all cases where it is just and convenient to do so.
4. The court has discretion to award damages instead of injunctions where injury is small, capable of estimated in money and grant injunction would be oppresive.
5. Injunction can be enforce by imprisonment, sequestration of assets or payment of fine.

Question 3

Specific performance

Answer 3

1. Court order which compels the defendant to perform a positive contractual obligations (do what they promised to do), but cannot compel performance of negative obligations (promises not to do sth - which mus be enforced by injunctions)
2. No specific performance for Contract for personal services and contracts which require constant supervision
3. There is no interim order for specific performance. Parties wishes to secure a SP may need to apply for interim injunctions to “hold the right: allowing them to secure an order for specific perfomance at trial
4. Order of specific performance can be enforced by imprisonment, sequestration of assets or payment of find.

Question 4

Rectification

Answer 4

1. remedy allows the parties to correct the written expression of the agreement so that it properly reflects the parties’ true agreement.
2. Common errors are corrected include:
   (a) the failure to match the correct parties with correct contractual obligations
   (b) improperly defining the scope of the agreement subject matter
   (c) improperly recording the agreement as to price.
   The failure to record true agreement between the parties must be consequence of mistake (either common or unilateral).

Difficult to claim rectification especially when agreements drafted by lawyers.

Question 5

Other equitable remedy

Answer 5

1. appointment of receivers and managers
2. action of account: sb obtained benefit that they are not entitled, they may be ordered to account for the profit (e.g. fiduciary in breach of fiduciary duty)
3. Rescission: enable party to contract to have it set aside and to be restored to their pre-contract position (commonly in misrepresentation and undue influence)