Equitable remedies

Question 1

Specific performance:
(3 elements)

Answer 1

Court compels the defendant to perform his original obligation under the contract.
Obligation MUST BE unique such as, a contract to fulfil the sale of a particular parcel of land.
Specific performance wouldn’t be awarded where it would require constant court supervision OR where it would be a contact for personal services.

Question 2

Injunctions - examples?

Answer 2

• Prohibitive injunctions
• Mandatory injunctions
• Quia Timet injunctions

Question 3

Prohibitive injunctions?

Answer 3

prevent the defendant from doing something AND thereby stopping a breach of obligation.

Question 4

Mandatory injunctions?

Answer 4

compel the defendant to do something.
Requires a full trial to be awarded.

Question 5

Quia Timet injunctions?

Answer 5

harm alleged HASN’T happened yet BUT it is feared OR threatened.
An Interim injunction, WITHOUT the benefit of a full trial,
following criteria MUST be met:
 Serious question to be tried.
 Damages are inadequate
AND
 Balance of convenience REQUIRES the grant of an injunction WITHOUT doing injustice to one side OR the other
Factors considered include (loss of employment, damages to business by picketing, closing a business etc).

Question 6

Recission:

Answer 6

Recission aims to restore BOTH parties to their original positions BEFORE the wrongdoing occurred.

Question 7

Recission CAN be barred where:

Answer 7

• Innocent third party WILL be adversely affected by the remedy.
• MUST have been a delay.
• There has been an affirmation of the contract (when it could have been rescinded)
  OR
• Impossible to return BOTH parties to their precontractual position.

Question 8

Rectification:

Answer 8

Rectification allows a legal document that DOESN’T reflect the true agreement of the parties to be properly amended.

Question 9

To grant the rectification remedy, the court need:

Answer 9

• Clear evidence of the parties true intention.
• Flaw in the document so that it DIDN’T reflect the true intention.
• Specific intention to achieve something different from what had been done.
• Issue capable of being contested EVEN THOUGH all relevant parties consented to the rectification.

Question 10

Remedy - account:

Answer 10

This remedy will require the fiduciary to repay unauthorised profits, bribes, etc.
From a breach of confidence.

Question 11

Any breach of the trust OR fiduciary obligation will lead to a…

Answer 11

remedy.

Question 12

The claimant WILL have the following choice to make:

Answer 12

• Personal claim – claim against the trustee OR fiduciary personally.
  NOT based on the recipient having the property in his possession
  OR
• Equitable proprietary claim – claim based on the defendant having the property, its proceeds, OR its replacement in his possession
  AND being required to return it.

Question 13

Advantages to bringing a proprietary clause (provided the property is still in the hands of the trustee) are:

Answer 13

• Trustee OR recipient has become bankrupt the beneficiary takes priority over the other creditors.
• Any increase in value of the property taken by the trustee is recoverable
  AND
• No time limits to bring a proprietary claim.

Question 14

Trustee has taken the trust property AND changed it, OR mixed it with their own,
the beneficiaries have to identify the new property belonging to the trust:

Answer 14

*Tracing where a substitution of asset
*Tracing where a mixed asset
*Tracing through a mixed bank account

Question 15

Tracing where a substitution of asset?

Answer 15

taken trust money HAS been used to buy an asset,
the asset will belong to the trust.

Question 16

Tracing where a mixed asset?

Answer 16

taken trust money HAS been used WITH some of the trustees’ own money to buy an asset,
the beneficiaries can either take a proportionate share in the asset OR take a lien over the asset.

Question 17

Tracing through a mixed bank account?

Answer 17

trust money has been mixed with the trustee’s own funds, AND then purchased assets OR been generally spent.
Beneficiaries can bring a proprietary claim AGAINST the assets purchased with the mixed monies BUT NOT for the money generally dissipated.