Trusts 9

Question 1

What are the 5 basic principles the court will have regard to in granting an equitable remedy?

Answer 1

• Claimant must have a legal or equitable right (i.e. right enforceable in law or equity)* There must be no adequate remedy at common law* Enforcement of the remedy must be feasible* The likely hardship must be balanced between the parties * There must be no inequitable conduct on the part of the claimant or an equitable remedy will not be awarded (e.g. come to equity with clean hands and not be guilty of unreasonable delay)

Question 2

If a successful claim is made out, does a claimant have a right to an equitable remedy?

Answer 2

No, equitable remedies are always at the discretion of the court.

Question 3

In what types of situations may damages be inadequate leading to an equitable remedy instead?

Answer 3

• The subject matter of the litigation is unique as in a contract for the sale of land or * The claimant wishes to prevent the defendant from committing a tort rather than receiving compensation for its commission.

Question 4

When might an equitable remedy not be feasible?

Answer 4

Equity will not act where it:* does not have the power or the means to carry out its orders or * would be difficult to supervise performance (e.g. land at issue is in foreign jurisdiction/defendant could easily remove himself from the court’s jurisdiction).

Question 5

What sort of conduct may amount to inequitable conduct?

Answer 5

Usual equitable principles are applied to determine whether to make an award. This means that the con- duct of the applicant in relation to the case must accord with the standards of equity. The claimant must not be quilty of any inequitable conduct in relation to the case (that is, they must “come to equity with clean hands”) and must not have been guilty of any unrea- sonable delay in bringing their claim (laches).