TOPIC 7 (Specific Performance): Case Law

Question 1

O’Neill v Ryan [1992] 1 IR 166

Answer 1

Plaintiff was a former chief-executive of Ryanair;
Plaintiff sought various forms of relief following his dismissal, with one set of proceedings being specific performance of a share transfer agreement that was outlined in a letter that was exchanged between the parties;
Specific performance was granted in circumstances where an award of damages would leave the plaintiff with shares in a company he had no control over and regarding which the value of the shares were liable to fluctuate wildly;

Question 2

Aranbel Ltd v Darcy and Others [2010] IEHC 272

Answer 2

where specific performance was refused
Defendants agreed to buy property in an apartment complex, with each defendant agreeing to complete the sales of these properties by March of 2008, with each defendant failing to do so;
All parties agreed that a binding contract existed between the parties, however the defendants argued primarily that damages in lieu of specific performance should be given as the defendants could not complete the sales any more;
Held damages in lieu of specific performance should be given as it would be impossible for the defendants to carry out these sales as they did not having the available assets or borrowing power
Impossibility: it was impossible to enforce the contract
ONeill had no issue of impossibility at all

Question 3

Verrall v Great Yarmouth Borough Council [1981] QB 202;

Answer 3

LEASE

Plaintiff acting on behalf of the National Front initiated proceedings for specific performance of a lease to hire a hall for two days which had been repudiated by the defendant;
Specific performance was granted;
When arrangements are made for a licence of this kind of such importance and magnitude affecting many people, the licensors cannot be allowed to repudiate it and simply pay damages. It must be open to the court to grant specific performance in such cases;
Also noted by the Court that specific performance “will hardly ever be refused where, as in the present case, the plaintiff has performed his part of the bargain… the principle that specific performance will hardly ever be refused where there has been part performance applies when the performance by the plaintiff is such that no restitutio in integrum is possible. But it does not apply where the pre-contract position can be restored as when money can be returned.”
Assignment of a lease - this case shows you can specifically perform a lease (as well as sale)
Land is seen as unique

Question 4

Dore v Stephenson (24 April 1980, Unreported High Court);

Answer 4

No concluded agreement, would have to rewrite the contract to include provision

Concerned a supposed agreement that was entered into between parties for the sale of a particular premises;
The contract entered into between the parties did not contain any information about how one would obtain access to the first floor premises through a foyer in the building;
Specific performance was sought, but ultimately not granted;

is it essential to be included: “The nature of this property made it essential that there should be agreement about the foyer and, in the absence of this, there was, in my opinion, no enforceable agreement between the plaintiff and the defendant.”

Question 5

Supermacs Ireland Ltd v Katesan (Naas) Ltd [2000] 4 IR 273

Answer 5

Material terms need to be included to have an enforceable contract

Case concerned an appeal of a determination of the High Court to dismiss a motion to strike out the Plaintiff’s claim for specific performance of an agreement on the basis that the claim was unsustainable/an abuse of process;
Plaintiff’s case concerned an agreement entered into between the parties for the sale of various fast food outlets;
On the issue of essential terms for contracts for the sale of land, Judge Geoghegan stated the following: - “Only the “material terms” need be included in a note or memorandum for it to be sufficient but all the terms, whether they be important or unimportant, must be agreed before there can be said to be a concluded agreement. It follows therefore that if the evidence is that there is going to be a deposit but that the amount of it is still to be negotiated, there cannot be a concluded agreement.”

Question 6

Globe Entertainment Ltd v Pub Pool Ltd [2016] IECA 272

Answer 6

Case concerned the sale of a premises;
Appellants sought to rely on a chain of emails and an attached letter to fulfill the obligations of the Land and Conveyancing Law Reform Act 2009;
It was determined by the Justice Geoghegan in the Court of Appeal that specific performance should not be granted as no concluded agreement had been reached between the parties;
Based on the facts of the case, it was determined that there was no agreement on a closing date for the particular contract between the parties, which was an item identified by the parties that was important and required agreement, with it being apparent that the closing date of the agreement was intended to be an express term;

Question 7

Boyle v Lee [1992] 1 IR 555

Answer 7

note or memorandum is required

“In my view, the very definite statement that a note or memorandum of a contract made orally is not sufficient to satisfy the Statute of Frauds unless it directly or by very necessary implication recognises, not only the terms to be enforced, but also the existence of a concluded contract “

Question 8

Falcke v Gray 62 E.R. 250

Answer 8

sale of property

Case concerned an application for specific performance of a contract for the sale of two unique China jars;
Specific performance in this instance was rejected, but the following was noted as an approach to specific performance regarding unique items of personalty;
“In the present case the contract is for the purchase of articles of unusual beauty, rarity and distinction, so that damages would not be an adequate compensation for non-performance; and I am of opinion that a contract for articles of such a description is such a contract as this Court will enforce; and, in the absence of all other objection, I should have no hesitation in decreeing specific performance.”

Question 9

Dougan v Ley [1946] 71 CLR 142

Answer 9

sale of property : unique value of the good to the applicant

Example of specific performance being ordered for an object of peculiar and practically unique value to the applicant;
Case concerned the the sale of a taxi cab along with its license;
Plaintiff sought to escape the contract, defendant sought specific performance;
Specific performance was granted on account of the fact that taxi cab licenses were not readily available to the public as they were issued in limited numbers so damages was not an adequate remedy.

Question 10

Cohen v Roche [1927] 1 KB 169

Answer 10

sale of property: non-unique goods

Case concerned a plaintiff seeking specific performance of a contract for the sale of chairs ”of no unusual value”;
Held that the contract was an enforceable contract, however it was not an appropriate case for the court to exercise its discretionary power to order specific performance;
“In the present case the goods in question were ordinary articles of commerce and of no special value or interest, and no grounds exist for any special order for delivery. The judgment should be limited to damages for breach of contract.”

damages are adequat e

Question 11

Beswick v Beswick [1966] Ch 538:

Answer 11

Specific performance ordered for the payment of an annuity to the the Plaintiff, who sought to enforce an agreement entered into between her now deceased husband and her nephew (case brought in her capacity as an administratrix).

Question 12

Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116

Answer 12

supervision

Traditional example of specific performance being refused for a contract requiring supervision;
Case concerned a covenant in a flat for a porter to be ”constantly in attendance”;
Plaintiff’s sought specific performance where the porter employer was often absent;
Specific performance was not granted;
Impossible to enforce

Question 13

Posner v Scott-Lewis [1987] Ch 25

Answer 13

supervision

Contrast to Ryan v Mutual Tontine which highlights the softening of the court’s position on specific performance of contracts requiring supervision;
Defendant owned a block of flats with an agreement in place to employ a porter to keep the common parts clean, look after the central hearing and domestic water boiler, and carry rubbish from the flats to the dustbins;
Specific performance was granted, not overly onerous to make someone specifically perform the contract;
Not a huge amount of supervision to be granted

Question 14

Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1

Answer 14

supervision

UK CASE - criteria
Plaintiff, a landlord of a shopping center, sought specific performance of a covenant in a lease entered into with the defendant, an anchor tenant in the shopping center, to keep their supermarket open for trade during business hours;
In the House of Lords, specific performance was not granted for a number of reasons;
In commercial transactions where the objective is to make money, damages will be an adequate remedy;
Mandatory orders to operate a business are likely to lack the necessary clarity;
Contracts requiring supervision will likely require multiple court applications which are impractical for a number of reasons;
Specific performance will likely be an instrument of oppression;
Compelling the running of a business for an indefinite period of time where relations have broken down is impractical;

Question 15

Wanze Properties (Ireland) Ltd v Five Star Supermarket (High Court)

Answer 15

supervision

Case of very similar facts to Argyll;
Here plaintiff sought an interlocutory injunction to enforce a covenant whereby the defendant would operate a supermarket within the plaintiff’s shopping center during normal working hours;
Argued that this case could be distinguished from Argyll as Argyll involved a business that was running at a loss, whereas in this instance the defendant was seeking to move their business only 400 yards away to a different premises;
Interlocutory relief for the Defendant to remain in situ was granted;
Case did not proceed to trial ultimately.

Question 16

Wolverhampton Corporation v Emmons [1901] 1 KB

Answer 16

contract to build or repair: test

Plaintiff corporation sold land to the defendant, who agreed to build housing on land which was part of a scheme for street improvement;
Specific performance to carry out the building works was ordered;
In ordering specific performance, the Courts stated the following three conditions as being pre-requisite for specific performance of building/repair contracts:
1. The work in question must be defined with sufficient precision within the contract;
2. The plaintiff must have a substantial interest in the performance of the contract and damages must not be an adequate remedy;
3. The defendant must have by the contract obtained possession of the land on which the work is contracted to be done.

Question 17

Rainbow Estates Ltd v Tokenhold Ltd [1999] Ch 64

Answer 17

contract to build or repair: minimal supervision

Specific performance sought of a covenant to repair the property in circumstances where the property was in disrepair and no provisions existed within the lease permitting entry to carry out repairs nor forfeiture for re-entry;
Specific performance was granted based on the overriding need to avoid injustice or oppression;
Also noted that a sufficiently clear definition of what works needed to be carried out could be provided;

Question 18

Ahmed v Health Service Executive [2007] IEHC 312

Answer 18

addresses the approach to specific performance of contracts of employment in Ireland - breakdown of relationship

ase concerned a determination that the plaintiff, who was a consultant surgeon in the HSE, was on a contract of indefinite duration;
Issue arose as to what relief he could receive in circumstances where provisions of the Protection of Employment (Fixed-Term Work) Act 2003 were breached;
If a mandatory order was made directing the defendant to offer appropriate alternative employment to the plaintiff’s current role in compliance with the terms of the plaintiff’s contract, this would be specific performance;
Court held there had not been a breakdown of trust and confidence between the parties (as seen in the case of Carroll v Bus Atha Cliath [2005] 4 IR 184), but there were other challenges to specific performance;

Question 19

McGrath v Stewart [2008] IESC 52

Answer 19

Where relief for specific performance is barred due to laches, damages cannot be awarded in lieu of specific performance;

In the High Court, it was determined that the plaintiff’s claim was statute barred, so specific performance was not granted but damages awarded instead;
This decision was reversed on appeal to the Supreme Court, with no award of damages being made;
“The only issue which, in my view, it is appropriate for this Court to consider on this appeal is whether the trial judge was entitled to make an award of damages in lieu of specific performance in favour of Mr. McGrath and the second Respondent in circumstances where he had found that Mr. McGrath and the second Respondent were not entitled to a decree of specific performance in either plenary action, because Mr. Stewart had established laches on their part. On that issue, I am of the view that the trial judge did not have jurisdiction to award damages in lieu of specific performance. As regards the argument advanced on behalf of Mr. McGrath and the second Respondent, that they are entitled to damages at common law for breach of contract, I consider that, as no such claim was made or pleaded in the High Court or considered by the trial judge, they cannot pursue such a claim on the appeal.”

Question 20

Mount Kennet Investment Co v O’Meara (No. 3) [2011] IEHC 210

Answer 20

damages

Case concerns plaintiff initiating proceedings for specific performance in circumstances where the defendant only had a contractual entitlement to sell the property to purchase the property themselves which was conditional under obtaining consent from the Commission for Charitable Donations and Bequests, which had not been done;

Question 21

O’Regan v White [1919] 2 IR 339

Answer 21

defence: lack of mutuality

“Generally speaking, at any rate, it would be even-handed justice to compel specific performance against the one party, where the same remedy would not be available against the other party in respect of matters to be by him performed under contract.”
In other words, the contract must be specifically enforceable against both parties;
Mutuality is to be determined when the matter comes for hearing, rather than when the contract was entered into

Question 22

Flight v Boland (1828) 4 Russ 298

Answer 22

defence: lack of mutuality
Minor was refused specific performance as the defendant would only have a claim in damages against the minor if he failed to execute the deed;
“It is a general principle of the courts of equity to interpose only where the remedy is mutual.”

Question 23

Re Banister (1879) 12 Ch D 131:

Answer 23

defence: misrepresentation

“I apprehend that the considerations which induce a Court to rescind any contract and the considerations which induce a Court of Equity to decline to enforce specific performance of a contract are by no means the same. It may well be that there is not sufficient to induce the Court to rescind the contract but still sufficient to prevent the Court enforcing it.”
Specific performance will not be granted where a party is induced into a contract and they have been prejudiced as a result of entering into same, with even innocent misrepresentation being sufficient to form a defence;

Question 24

Smelter Corporation v O’Driscoll [197

Answer 24

an example of the defence of misrepresentation in action:
Case of misrepresentation regarding the sale of lands that were said to be the subject of a Compulsory Purchase Order if the sale did not go through;
Defendant acting under a “fundamental misapprehension” and so relief was refused;
“The Defendant agreed to sell believing she had no real option and the Plaintiffs accepted her agreement to sell knowing that this was not so. In my view it would create a hardship and would be unjust to decree specific performance in this case.”

Question 25

Tamplin v James (1880) 15 Ch D 215

Answer 25

defence: mistake

Order for specific performance upheld regarding the sale of land despite mistake on behalf of the defendant as to the exact ownership of certain parts of the land;
It was noted by the Court that mistake would usually not amount to a defence where the mistake arose due to a lack of reasonable care, however mistake could still be a defence to specific performance where “a hardship amounting to injustice would have been inflicted upon the purchaser by holding him to his bargain, and it was unreasonable to hold him to it.

Question 26

Roberts v O’Neill [1983] IR 47

Answer 26

defence: hardship

Plaintiff seeking specific performance of a contract for sale of a licensed premises;
Defendant sought to claim hardship on the basis that the property had vastly increased in value since the contract was entered into;
Specific performance was ultimately granted;
“while recognizing that there may be cases in which hardship arising after the date of the contract is such that to decree specific performance would result in great injury, there must be few such cases and, in my view, they should not include ordinarily cases of hardship resulting from inflation alone. To permit as an ordinary rule a defence of subsequent hardship, would be to add a further hazard to the already trouble strewn area of law of contracts for sale of land.”

Question 27

Patel v Ali [1984] Ch 283:

Answer 27

defence: hardship

Defendant and husband co-owned house they agreed to sell;
Husband went bankrupt, caused significant delays to the sale;
Following the completion of the contract, the vendors leg was amputated and she gave birth to two children during this time;
Defendants also spoke little English when contract was entered into and relied entirely on the assistance of friends and relatives to manage affairs;
The purchaser sought an order for specific performance of the sale, which was refused on grounds of hardship;

Question 28

Aranbel Ltd v Darcy [2010] 3 IR 769

Answer 28

defence: hardship

Case concerning sale of property where purchasers were no longer able to complete their purchase due to dire financial straits;
In this instance damages in lieu specific performance were granted as an order for specific performance would be impossible to enforce;
Noted the court were waiting to deal with the issue of hardship completely where a party claiming hardship may have to sell the family home to specifically carry out a purchase – this would not be a case of hardship, but would require careful consideration;
As would the question of how to deal with a scenario where assets were handled in such a way as to make them impossible to assist with an order for specific performance.

Question 29

Starling Securities Ltd v Woods (High Court 1975)

Answer 29

defence: illegality

Transactions being conducted in a certain manner to defraud revenue;
Court refused to order specific performance as this would be assisting in the commission of a fraud;

Question 30

Neville and Sons Ltd v Guardian Builders Ltd [1995] 1 ILRM 1

Answer 30

defence: impossibility

Performance becoming more onerous does not amount to impossibility;
Plaintiff entered into an agreement to build houses on defendant’s site;
Defendant was to build a roadway to reach the site across local authority land with an agreement in principle being reached;
Issues with planning permission arose and defendant sought to resist specific performance;
Specific performance was granted, contract was merely more onerous, but not impossible to perform.

Question 31

Murphy v Ryan [2009] IEHC 305

Answer 31

defence: impossibility

Authority for impossibility/frustration not being a defence where a contract is frustrated by an event which is anticipated/should have been anticipated;
Here defendants entered into an unconditional contract for the purchase of lands where they entered knowing they did not have the finances to complete the bargain;
Specific performance was granted;
“Insofar as there is a suggestion by the defendants that it is impossible for them to complete the contract and that it is in someway frustrated thus enabling them to walk away from their liabilities. I am afraid I cannot agree. Where circumstances alleged to cause frustration have arisen from the act or default of one of the parties, it cannot rely upon the doctrine. The default here is exclusively that of the defendants. They foolishly entered into an unconditional contract without the necessary finance to complete it. They cannot now walk away from their bargain.”

Question 32

Mackie v Wilde [1998] 2 IR 578:

Answer 32

part performance

Case concerned a fishery where the plaintiff and defendant were part of an indenture, provided the agreement between the parties could be changed by agreement in writing;
Parties met and agreed to run the fishery as a joint fishery in accordance with a set of rules drawn up by the defendant;
Plaintiff sought a written agreement of the parties oral agreement;
Proceedings were ultimately brought to establish a binding agreement;
Justice Barron set out the following for establishing part performance;

Consideration should be given to the following in establishing part performance:
The acts on the part of the plaintiff said to have been in part performance;
The involvement of the defendant with respect to such acts;
The oral agreement itself.
The following were also noted as being essential:
That there was a concluded oral contract;
That the plaintiff acted in such a way that showed an intention to perform that contract;

Question 33

Liberty Asset Management Ltd v Gannon [2009] IEHC 468:

Answer 33

part performance - application of Mackie

That the defendant induced such acts or stood by while they were being performed;
Example of both specific performance and damages being awarded, along with being an authority for assessing part performance in light of all material circumstances of a case;
Case concerned acquisition of a leasehold interest;
It was held there was no sufficient note/memorandum of the relevant contract, however in applying Mackie v Wilde it was determined that an oral agreement existed between the parties, the plaintiff acted in part performance and the defendant was involved with respect of such acts;