Remedies III Flashcards
What is specific performance?
It is an order to perform the contract. Where A enters into contract with B and A fails to convey the land as required by the contract, the court may make an order for specific performance.
The courts will never provide a remedy where damages are an adequate remedy. So for example for the sale of a painting, damages wouldn’t be adequate, but specific performance would be.
Contracts for the sale of land are the same. They are unique.
Contracts of employment are excluded from specific performance - Bryne v Australian Airlines.
JC Williamson v Lukey
Lessees of a theatre agreed with a confectioner to give him e xclusive rights to sell sweets and confectionery in the theatre and it’s precints.
Both partiese were experienced in this sort of contract.
Both agreed to various conditions where the employers of the confectioner be dressed appropriately and uniformly dressed, and most importantly, in a manner approved by the theatre.
Things were fine, subsequently lessees repudiated the contract. Confectioner simply wanted contract to be performed i.e. to be let into theathre to sell their sweets.
They tried to get specific performance.
HC said, there were difficulties in granting specific performance in this case:
- Specific performance, if granted wouldn’t be a final settlement. The theatre could refuse entry to confectioner if the employee selling confectionery were not appropriately dressed. Hence the courts would have to supervise parties to ensure performance. This would be difficult.
- Lack of mutuality. Only one side had the remedy, not both sides. The defendant also needed to have an option for specific performance. (This has been relaxed in Patrick v Maritime).
- There was a delay in seeking the remedy. As soon as P knew or ought to have known of the facts that give rise to specific performance, time starts running. The longer the delay, the less likely an order will be given.
Specific performance will not be granted if specific performance will cause hardship - What is the authority for this?
Norton v Angus
Contract for sale of land. It would have been illegal for the purchasers to take both selections of the two. If specific performance had been ordered, the purchaser would have to take both selections, but that was itself illegal. All the purchaser could do was to find another party to take one selection or forfeit the land. In such a situation, specific performance causes hardship.
Can specific performance be ordered prior to the time that performance becomes due?
Yes. Turner v Bladin
When will injunctions be granted?
Where damages are inadequate.
Injunctions are generally only ever granted where the injunction is designed to prevent a breach of a negative stipulation in a contract. A negative stipulation is a stipulation NOT to do a thing. Burns v Kwikasair
What are the two kinds of injunctions?
- Perpetual which give final relief OR
2. Interlocutory which maintains things until a final determination can be made.
Burns v Kwikasair
P sought an injunction to stop D from preventing P inspecting a register which they were entitled to inspect under a deed of trust.
Difficult here was the deed of trust was expressed in positive terms. It conferred a positive right on the part of P’s to inspect.
APplying usual rule, this was not entirely a negative stipulation, but nevertheless an injunction was granted.
Dalgety v Rizzon
Tenant of a license premises in breach of a covenant in the lease not to do any act which would prevent or disable landlord from obtaining renewal of license or a transfer of any license in repect of the premises.
Current tenant wished to transfer license to another bar. One could do this under legislation at the time.
LLandlord not happy because a bar that is unlicensed will not attract new tenants, they would have to get a new license for the bar.
So P applied to lciense bar, but landlord tried to get an injunction to sotp proceedings.
HC Held: no injunction will be granted in these circumstances. In this scenario, it would restrain proceedings in another court.
There is a discretion to grant injunctions and courts did not exercise it.
