Beruflich Dokumente
Kultur Dokumente
1
Key remedies
– Specific performance
– Injunctions Slides Part 1
– Equitable damages
– Account of profits
– Equitable compensation
– Rescission Slides Part 2
– Rectification
– Declarations
• Laches (‘delay’)
• Acquiescence
• Unclean hands
• Hardship
• Effect of order on third parties
3
Practice Point!!!
LIMITATION PERIODS
• http://lawcover.com.au/wp-
content/uploads/2016/12/4235_Schedule-of-
Limitations-2016_V18.pdf
• And the relevant LEGISLATION!
– Yes statutory limitation periods do now apply to
some equitable actions – note differences
between the States on this.
4
Introduction to remedies
9
Advantages of proprietary remedies
(B&V p28)
13
Objectives of equitable remedies 3
16
Specific performance – (Ch 3, B & V)
• Bars?:
– discretionary
17
Specific performance
General considerations:
18
Specific performance – types of contracts
Sale of Land
23
Injunctions (B&V, p40)
• An order enforcing legal or equitable rights –
can restrain an act or require an act be done.
1. Mandatory or prohibitory;
2. Perpetual, interim and interlocutory
(common)
3. Ex parte
4. Quia timet
2 considerations:
1. Has the P made out a prima facie case on the evidence that
they would be entitled to the remedy at trial;
29
Mandatory injunctions forcing a defendant to
act vs prohibitory injunctions (B & V p.42)
30
Injunctions to restrain breach of contract?
• Breach of Contract is a CL action. (note again that
injunction and specific performance will only be
granted where damages for breach would be
inadequate remedy).
32
Injunctions and specific performance?
1. Trespass to land?
1. Yes (except if a bar to relief), assumed that damages
inadequate: Bendal Pty Ltd v Mirvac Project Pty Ltd
2 questions:
1. Will the injunction be fair to all parties? (this is
broader than under specific performance as n
injunction can affect third parties not party to the
proceedings)
2. As a practical matter, can the court supervise the
order it makes?
35
Note that such ‘bars to relief’ (‘defences’) that
the D may raise against the P include:
• ‘unclean hands’;
• Hardship;
• Delay (laches).
36
OMG I cant specific performance or an
injunction? What to do???
Also the P may still be able to get EQUITABLE damages if they cant get SP or
an injunction.
37
Equitable damages
BUT some authority suggesting that no, you can get equitable
damages for equitable wrongs – but does this only apply to
some States such as VIC where the wording of their Act is
slightly different?
38
How are equitable damages assessed? (B&V p.51)
a) Damages in addition to injunction or specific
performance .
b) Damages in substitution for injunction or specific
performance.