Equitable Remedies

Assoc Prof Cameron Stewart

Injunctions
Injunctions are orders made by the courts either restraining or
requiring performance of a specific act in order to give effect to the
legal rights of the applicant. An injunction that prevents a course of
action is said to be prohibitive in nature, and this is the traditional
essence of injunctive relief - it commands cessation of a wrongful
act. Somewhat rarer, yet not too distant from this core principle,
are mandatory injunctions that compel some behaviour of the
person to whom they are directed. In cases where mandatory
injunctions are granted it is clear that the defendant, while not
positively engaged in wrongful conduct, has nevertheless, by a
failure or omission to act, infringed upon the rights of the applicant.
In commanding the doing of an act by such a defendant, the court is
in effect commanding the harmful dormancy to cease.

Jurisdiction?
The origins of injunctive relief are found in equitys exclusive jurisdiction
where it was used solely in support of equitable rights. But equity soon
developed an auxiliary jurisdiction through which it offered more flexible
forms of relief when those of the common law proved to be inadequate.
Thus, in particular circumstances, injunctive relief is available to restrain
breaches of contract, tortious wrongs and an array of other conduct that
infringe upon rights recognised by the common law. In addition to the
exclusive and auxiliary jurisdictions of equity to order injunctions, the
common law courts were granted the ability to do the same through
statutory reform enacted in the Common Law Procedure Act 1854 (UK)
which provided a distinct jurisdiction from both the exclusive and auxiliary
operations of equity. It was narrower than the exclusive jurisdiction in that
it did not enable the common law courts to issue injunctions in respect of
equitable rights, nor did it enable the making of quia timet injunctions. At
the same time, it was seen as wider than equitys auxiliary jurisdiction as
there was no requirement of either a proprietary interest or inadequacy of
damages

Judicature Act
Judicature Act 1873 (UK) - Section 25(8) stipulated
as follows:
[A]n injunction may be granted or a receiver
appointed by an interlocutory order of the court
in all cases in which it shall appear to the court to
be just or convenient that such order should be
made; and any such order may be made either
unconditionally or upon such terms and
conditions as the court thinks just.
Supreme Court Act 1970 (NSW) s 66;

Exclusive
Injunctions granted in aid of equitable rights
(such as the equitable obligation of
confidence or a beneficiarys rights under a
trust) are said to be awarded in equitys
exclusive jurisdiction.

Auxiliary
Injunctions granted in aid of common law rights
(such as the restraint of breaches of contract or
tortious wrongs) or statutory rights are said to be
awarded in equitys auxiliary jurisdiction. The
distinction is important because with injunctions
in the auxiliary jurisdiction, a plaintiff must first
establish that damages at common law are an
inadequate remedy, and secondly, it may be the
case in some situations that he or she must also
show that the right being protected is a
proprietary right.

Why does it matter?

The distinction is important because with injunctions in
the auxiliary jurisdiction, a plaintiff must first establish
that damages at common law are an inadequate
remedy, and secondly, it may be the case in some
situations that he or she must also show that the right
being protected is a proprietary right.
However, in the exclusive jurisdiction, neither the
inadequacy of damages nor the proprietary in nature
of the plaintiffs right are relevant in assessing whether
the injunction should be granted.

Injunctions Protect Rights

Injunctive relief will not be ordered if there has
been no violation of the plaintiffs rights:
North London Railway Co v Great Northern
Railway Co (1883) 11 QBD 30

Inadequacy of damages
Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1, Morris was
building a significant construction on adjoining land owned by
Graham. A crane on the building site was left to rotate freely and,
when the wind blew in a certain direction, its jib encroached over
Grahams property and was suspended over the roof of her house.
Campbell J held that the invasion of Grahams airspace constituted
a trespass and that damages at common law were inadequate
because the danger of the jib suspended over Grahams house were
very real and would last for 18 months until the construction work
was completed. The trespass would also negatively impact on the
sale price Graham could get if she wished to sell her home during
that time. Morris argued that the grant of the injunction would
constitute hardship because it would have to dismantle the crane at
considerable expense. His Honour rejected this defence on the
basis that the positioning of the crane stemmed from Morriss
negligence and its cavalier attitude towards the building project.

The requirement of a proprietary

right
In Attorney-General v Sheffield Gas Consumers Co
(1853) 43 ER 119, at 125, Turner LJ, in refusing to
grant an injunction, said that *i]t is on the ground
of injury to property that the injunction of this
court must rest.
However, in Cardile v LED Builders Pty Ltd (1999)
198 CLR 380, at 395; 162 ALR 294, at 304, the
High Court held that there is no general
requirement that the right must be proprietary
before injunctive relief can be granted.

The requirement of a proprietary

right
Most commentators now agree that the availability of injunctive relief
in equitys auxiliary jurisdiction is not limited to the protection of
legal rights that are proprietary in nature. A more accurate
statement as to the relevance of the proprietary nature of the right
in question is given by Spry when he writes as follows:

[A]lthough it is incorrect to assert that an injunction can be obtained

only in aid of property or in aid of a proprietary right, there are
cases where in the particular circumstances the only possible
reason for equitable intervention happens to lie in the support of
what may be described as a proprietary right.
I C F Spry, The Principles of Equitable Remedies, 7th ed, Lawbook Co,
Sydney, 2007, p 340.

Types of Injunctions
Prohibitive or mandatory?
Interlocutory or perpetual injunctions?

Mandatory injunctions
Two kinds
The first is the mandatory restorative injunction which compels the
defendant to repair the consequences of some wrongful act that he
or she has committed. In order to obtain such an injunction, the
plaintiff must show that, where the wrongful act had not occurred
but was merely threatened, he or she would have obtained a
prohibitory injunction in relation to the apprehended wrong. For
example, in a situation where a house has been built in
contravention of statutory planning approval requirements, a
mandatory restorative injunction will be granted requiring the
defendant to demolish it, provided that, before the house was built,
the plaintiff can establish that he or she would have obtained a
prohibitory injunction preventing the defendant from building it.

Mandatory restorative injunctions

Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1434, at [22], in the
context of granting a mandatory restorative injunction where the
defendant had almost completed the construction of a house in
violation of a restrictive covenant, Brereton J said:

Factors relevant to the exercise of the Courts discretion in this respect

include the defendants knowledge of the wrongful nature of his or her
acts; whether the defendant has hastened the completion of the
wrongful acts so as to steal a march on the Court (or the plaintiff); the
hardship which would be caused to the plaintiff by the refusal of an
injunction; the hardship which would be caused to the defendant by
the grant of an injunction; and the extent to which the injuries suffered
by the plaintiff are compensable by an award for damages.
Appeal successful in Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121, but
test a relevant statement of the law

Mandatory enforcing injunctions

The second type of mandatory injunction is the mandatory
enforcing injunction which compels the defendant to do
some positive act that he or she has promised to do for
valuable consideration. In such cases the court will need to
be satisfied that the agreement is specifically enforceable
and that, in all the circumstances, it is just and equitable to
grant the injunction: Burns Philp Trust Co Pty Ltd v
Kwikasair Freightlines Ltd (1963) 63 SR (NSW) 492, at 496.
In Businessworld Computers Pty Ltd v Australasian
Telecommunications Commission (1988) 82 ALR 499, at 501,
it was observed that courts will be extremely reluctant to
grant a mandatory enforcing injunction if the agreement
would not also have attracted the remedy of specific
performance.

Perpetual injunctions
Injunctions can also be classified according to
the period of time for which the order is to
remain in force. A perpetual injunction is the
injunction granted after a full hearing of the
claim on its merits. Because the merits of the
case have been argued, the perpetual
injunction is intended to finally settle relations
between the parties.

Interlocutory injunctions
An interlocutory injunction is a provisional order made at an earlier
stage in the proceedings before the court has had the opportunity
to assess the merits of the application.
Generally, interlocutory injunctions are expressed to be in force
until the trial of the action or further order of the court. The term
interim injunction is often used interchangeably with interlocutory
injunction. However, there is a technical difference between the
two, in that an interim injunction is more temporary than an
interlocutory injunction, and is usually expressed to remain in force
until a specified date prior to the final hearing. Thus, in
Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 32 ALR
485, the plaintiff obtained an ex parte interim injunction on 9
November 1980 that remained in force until 11 November 1980. On
that date the defendant entered an appearance and the court
granted an interlocutory injunction pending a final hearing of the
matter.

Interlocutory injunctions
In Films Rover International Ltd v Cannon Film Sales Ltd
[1986] 3 All ER 772, at 7801, Hoffmann J put is as follows:

The principal dilemma about the grant of interlocutory

injunctions, whether prohibitory or mandatory, is that
there is by definition a risk that the court may make the
wrong decision, in the sense of granting an injunction to a
party who fails to establish his right at the trial (or would
fail if there was a trial) or alternatively, in failing to grant an
injunction to a party who succeeds (or would succeed) at
trial. A fundamental principle is therefore that the court
should take whichever course appears to carry the lower
risk of injustice if it should turn out to have been wrong in
the sense I have described.

Interlocutory injunctions
In general, interlocutory injunctions will only be
granted after notice of the application has been
given to the defendant, so that the defendant has
the opportunity to resist the claim. Thus, the
hearing of such application is usually inter
partes. However, in urgent cases, interlocutory or
interim injunctions can be granted in the absence
of the defendant, or ex parte, as occurred
initially in Commonwealth of Australia v John
Fairfax & Sons Ltd.

Interlocutory injunctions
In considering whether an interlocutory injunction should
be granted the court must apply the test set out in
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968)
118 CLR 618, at 622-3, where the High Court noted that the
following two requirements had to be satisfied:

The first is whether the plaintiff has made out a prima facie
case, in the sense that if the evidence remains as it is there
is a probability that at the trial of the action the plaintiff
will be held entitled to relief ... The second inquiry is ...
whether the inconvenience or injury which the plaintiff
would be likely to suffer if an injunction were refused
outweighs or is outweighed by the injury which the
defendant would suffer if an injunction were granted.

Interlocutory injunctions
The prima facie case requirement was discussed in Shercliff
v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR
729, at 735-7, where Mahoney JA noted the following
points: (i) it did not mean a finding that at trial the plaintiff
would win; (ii) the term prima facie is used in the sense of
likelihood, and does not refer to a prediction, but rather to
the nature of the plaintiffs case; (iii) the term prima facie
may mean something less than more likely than not, and
there is no requirement that the plaintiff must show a
better than even chance of ultimate success; and (iv) a
prima facie case must always be established, irrespective of
whether the second test of balance of convenience favours
the grant of interlocutory relief.

Interlocutory injunctions
In various cases judges use the expression serious question to be tried
rather than prima facie case. Thus, in Australian Broadcasting
Corporation v ONeill (2006) 227 CLR 57, at 68; 229 ALR 457, at 466,
Gleeson CJ and Crennan J, observed that a plaintiff had to establish that
there is a serious question to be tried as to the plaintiffs entitlement to
relief. The use of the serious question to be tried formulation stems from
a passage in American Cyanamid Co v Ethicon Ltd [1975] AC 396, at 407:
[1975] 1 All ER 504, at 510, where Lord Diplock said:

The use of such expressions as a probability, a prima facie case, or a

strong prima facie case in the context of the exercise of a discretionary
power to grant an interlocutory injunction leads to confusion as to the
object sought to be achieved by this form of temporary relief. The court no
doubt must be satisfied that the claim is not frivolous or vexatious; in
other words, that there is a serious question to be tried.

Interlocutory injunctions
In relation to the balance of convenience requirement, the
court must weigh up the comparative injury that will arise
from granting or withholding an injunction pending trial of
the action, seeking out the major risk of damage and, in
particular, of any irreparable damage. In Cayne v Global
Natural Resources plc [1984] 1 All ER 225, at 237, this
aspect was referred to as the balance of the risk of doing
an injustice. In assessing the risk of damage, it does not
matter that, at the stage of the interlocutory application,
the plaintiff has suffered no damage, provided that actual
damage will reasonably result if the interlocutory injunction
is not granted: Swimsure (Laboratories) Pty Ltd v McDonald
[1979] 2 NSWLR 796.

Example
In Hermescec v Carcagni [2008] NSWSC 183, Hermescec
purchased an Italian restaurant in Newcastle the
Benevenuti - from Carcagni. Soon thereafter, Carcagni
opened up a competing Italian restaurant the Grifone - a
short distance away from the Benevenuti. Hermescec
claimed that this constituted a breach of a covenant in
restraint of trade that was agreed to when Carcagni sold his
restaurant. He initiated proceedings for an injunction to
enforce the restraint. Even though Hermescec established
that he had a strong case against Carcagni, the application
for an interlocutory injunction failed on the grounds of the
balance of convenience. On this issue, Barrett J, at [21][23], said

Example

If an interlocutory injunction is granted, Grifone would have to close down

pending the courts final decision on the entitlement of *Hermescec] to relief by
way of permanent injunction or damages or both. That would be a drastic result. If
Grifone were able to stay open with an injunction in place, it could only be on the
basis that the company of which [Carcagni] is sole shareholder and director was no
longer the operator and [Carcagni] himself was no longer the manager. On
[Carcagnis] evidence, such a situation would be impossible to achieve in any real
sense, given that Grifone is in substance a one-man business operated by
[Carcagni], albeit with the assistance of employees. The practical result of an
interlocutory injunction would be suspension of [Carcagnis] Grifone business
[T]his is a case in which any injunction pending trial would produce the very result
to be put in issue at a final hearing. Such an interlocutory injunction would affect
rights in a permanent fashion on evidence which may be supplemented and may
be found to bear some different complexion at the trial. At this stage, therefore,
the balance of the risk of doing injustice favours [Carcagni], even though the
prospects that he will in due course be subjected to a permanent injunction and
also be ordered to pay damages and costs appear, at least at this stage, to be
strong.

Interlocutory mandatory injunctions

Gummow J in Businessworld Computers Pty Ltd v Australian
Telecommunications Commission (1988) 82 ALR 499, at 502-503:

[M]andatory injunctions generally carry a higher risk of injustice if granted

at the interlocutory stage [because]: they usually go further than the
preservation of the status quo by requiring a party to take some new
positive step or undo what he has done in the past; an order requiring a
party to take positive steps usually causes more waste of time and money
if it turns out to have been wrongly granted than an order which merely
causes delay by restraining him from doing something which it appears at
the trial he was entitled to do; a mandatory order usually gives a party the
whole of the relief which he claims in the writ and makes it unlikely that
there will be a trial An order requiring someone to do something is
usually perceived as a more intrusive exercise of the coercive power of the
state than an order requiring him temporarily to refrain from action. The
court is therefore more reluctant to make such an order against a party
who has not had the protection of a full hearing at trial.

Interlocutory mandatory injunctions

For some time it was said that a plaintiff seeking an
interlocutory mandatory injunction would need to show
that there was a high degree of assurance that he or she
would succeed at trial: Shepherd Homes Ltd v Sandham
[1971] Ch 340, at 351; [1970] 3 All ER 402, at 412. However,
this test has now been rejected.
Tymbook Pty Ltd v State of Victoria [2006] VSCA 89
Burke v Frasers Lorne Pty Ltd [2008] NSWSC 988, at [4],
Brereton J said that the same considerations apply to an
interlocutory mandatory injunction as to any other
interlocutory injunction, although the mandatory nature of
the relief sought, and the potential consequences if it later
be undone, is often telling on [the issue of] the balance of
convenience.

Interlocutory injunctions in the context

of defamation
Australian Broadcasting Corporation v ONeill, at CLR 68-9; ALR 466-7,
after referring to the basic principles governing the granting of
interlocutory injunctions, Gleeson CJ and Crennan J said:
In the context of a defamation case, the application of those
organising principles will require particular attention to the
considerations which courts have identified as dictating caution.
Foremost among those considerations is the public interest in free
speech. A further consideration is that, in the defamation context,
the outcome of a trial is especially likely to turn upon issues that
are, by hypothesis, unresolved. Where one such issue is
justification, it is commonly an issue for jury decision. In addition,
the plaintiffs general character may be found to be such that, even
if the publication is defamatory, only nominal damages will be
awarded.

Undertaking as to damages
A usual condition of granting an interlocutory
injunction is that the plaintiff must give an undertaking
as to damages. The undertaking operates as a
protection to the defendant should the court later rule
that the interlocutory injunction should not have been
granted. The undertaking binds the plaintiff to
compensate the defendant for any damage suffered by
the defendant on account of the granting of the
interlocutory injunction. If the plaintiff refuses to give
the undertaking, the interlocutory injunction will be
refused: First Netcom Pty Ltd v Telstra Corporation Ltd
(2000) 101 FCR 77

Undertaking as to damages
Thus, in Cambridge Credit Corporation Ltd v Surfers
Paradise Forests Ltd [1977] Qd R 261, an undertaking
given by an insolvent company that was in receivership
was taken to be worthless and interlocutory relief was
denied. However, the interlocutory injunction will be
granted if a satisfactory third person provides the
undertaking. It may be the case that the defendant or
third party may also have to provide adequate security
so as to ensure that the undertaking is not rendered
worthless or less valuable by subsequent events
leading up to the final hearing of the matter.

QUIA TIMET INJUNCTIONS

Generally, injunctive relief relates to some infringement or
alleged infringement of the plaintiffs rights. However,
inunctions can be granted in relation to circumstances
where there has not yet been an infringement of rights.
Injunctions granted on the basis that there is a threat that
the plaintiffs rights will be infringed are known as quia
timet injunctions. The expression qui timet means since
he fears. The essential purpose of a quia timet injunction is
to prevent a wrong being committed: Proctor v Bayley
(1889) 42 Ch D 390, at 398. Traditionally the quia timet
injunction was only available in relation to equitable rights,
but is now seemingly available in respect of all matters by
virtue of the injunction provisions of legislation
implementing the judicature system

QUIA TIMET INJUNCTIONS

In Redland Bricks v Morris, at AC 665; All ER
579, Lord Upjohn observed that a quia timet
injunction arises in the following two types of
case: (i) where, as yet, no harm to the
defendant has occurred but it is threatened or
intended, and (ii) where harm has been done
by the earlier actions of the defendant, and
the plaintiff has been compensated, but the
plaintiff fears that future wrongs may be
committed by the defendant

QUIA TIMET INJUNCTIONS

In assessing whether to grant a quia timet injunction
the courts have framed the test for the likelihood of an
infringement of the plaintiffs rights with expressions
such as reasonably certain in FCA Finance Pty Ltd v
Moreton Central Sugar Mill Co Ltd [1975] Qd R 250, at
253, and very strong probability in Redland Bricks v
Morris, at AC 665; All ER 579. As to the necessary loss
or damage that is threatened, it has been said by the
courts that it must be grave damage in Thynne v Petrie
[1975] Qd R 260, at 262, substantial in FCA Finance v
Moreton Central Sugar Mill, at 253, and very
substantial in Hooper v Rogers [1975] Ch 43, at 50;
[1974] 3 All ER 417, at 421

Injunctions to Enforce Negative

Stipulations
Generally, the equitable enforcement of contractual
rights is by means of an order for specific performance
which requires the defendant to carry out his or her
contractual obligation. This is the order that is usually
sought in relation to positive contractual obligations.
However, where there is a negative contractual
obligation, the injunction is the usual equitable relief
that is sought. A negative contractual obligation is one
where inactivity on the part of the promisor is the
essence of the obligation. Negative contractual
obligations can be express or implied. The classical
illustration of an enforceable negative contractual
obligation is a reasonable restraint of trade.

Injunctions to Enforce Negative

Stipulations
An important illustration of injunctive relief being sought to enforce
negative contractual obligations is with restraints of trade in the context of
personal service contracts. The typical example of such cases occurs when
X, a person with particular skills and talents, promises to provide those
skills and talents for the benefit of Y (the positive contractual obligation),
but also promises not to provide those skills and talents for the benefit of
anybody else (the negative contractual obligation). If X attempts to breach
the negative contractual obligation, Y will seek to enforce it by obtaining
injunctive relief to prevent X performing those services for some other
person. The usual reason that X wants to breach the negative contractual
obligation is that he or she no longer wants to perform the positive
contractual obligation and wants to offer his or her skills and talents to Z.
Ys motivation for seeking the injunction is that, if X is prevented from
offering his or her skills and talents to Z, X will decide to perform his or her
positive contractual obligation. Y will rarely seek to obtain an order against
X for specific performance of the positive contractual obligation because it
will, in most cases, be refused on the basis that contracts for personal
services are rarely specifically enforced

Injunctions to Enforce Negative

Stipulations

Lumley v Wagner (1852) 42 ER 687. The background to this seminal case was a cutthroat battle between the managers of two London opera houses for the services
of Johanna Wagner, a famous opera singer. Lumley, the manager of the established
Her Majestys theatre, was first to contract Wagner for a three-months season in
1852. Significantly, Wagner was held to have also promised that during that period
she was not to use her talents at any other theatre, nor in any concert or reunion,
public or private, without the consent of Mr Lumley. Before her contract with
Lumley started, Gye, the manager of the recently established Covent Garden opera
theatre, negotiated a contract with Wagner for the opera singer to perform at
Covent Garden. Performance by Wagner of her contract with Gye would have
meant breaching the negative contractual obligation in her contract with Lumley.
Lumley sought, and obtained, an injunction to prevent her from doing so. Lord St
Leonards, at 693, observed that the effect of the injunction was only to prevent
Wagner from appearing at Covent Garden and that it did not require her to fulfil
her obligation to Lumley at Her Majestys theatre, something which his Lordship
said he could not directly enforce, although he conceded that the injunction could
well tempt Wagner to perform her contract at Her Majestys theatre.

Injunctions to Enforce Negative

Stipulations
Warner Bros Pictures Inc v Nelson [1937] 1 KB 209, Warner Bros movie studio obtained an injunction against
Bette Davis, precluding the legendary movie star from
starring in movies produced by other movie studios for a
period of three years. Branson J, at 219-20, conceded that
Davis could well be tempted to continue to make movies
with Warner Bros, but ruled that this was no grounds for
refusing the injunction. A crucial factor in his Honours
decision was the fact that Davis was an intelligent and
capable woman who could readily obtain alternative
employment if she resolved not to work for Warner Bros.
The fact that this alternative employment would be less
financially rewarding than acting was not relevant

Injunctions to Enforce Negative

Stipulations
In Page One Records Ltd v Britton [1967] 3 All ER 822, members of
the pop group The Troggs entered into a management and agency
agreement with Page One Records for a term of five years and
promised not to engage anyone else to be their manager and agent.
The Troggs sought to engage another manager and agent. Page One
Records sought an injunction to prevent them from doing so. In
refusing the application, Stamp J, at 827, after referring to Warner
Bros v Nelson, said:
[W]here a contract for personal service contains negative
covenants, the enforcement of which will amount either to a
decree of specific performance of the positive covenants of the
contract or to the giving of a decree under which the defendant
must either remain idle or perform those positive covenants, the
court will not enforce those negative covenants.

Injunctions to Enforce Negative

Stipulations
Stamp J doubted that The Troggs could continue to function without the
services of a manager and agent or seek other employment, and that they
would need a manager and agent to function successfully as a pop group.
According to Stamp J, at 827, this was so because:

The Troggs are simple persons, of no business experience, and could not
survive without the services of a manager I entertain no doubt that they
would be compelled, if the injunction were granted, to continue to
employ *Page One Records+ as their manager and agent *I+t would be a
bad thing to put pressure on the Troggs to continue to employ as a
manager and agent one, who, unlike the plaintiff in those cases [such as
Lumley v Wagner and Warner Bros v Nelson] who had merely to pay the
defendant money, has duties of a personal and fiduciary nature to perform
and in whom the Troggs, for reasons good, bad or indifferent, have lost
confidence and who may, for all I know, fail in its duty to them.

Injunctions to enforce statutory rights

Where there has been a breach of statute,
there are a number of possibilities in so far as
obtaining an injunction is concerned. First, the
legislation may expressly or impliedly exclude
any remedy other than those which it
expressly provides for, thereby excluding the
remedy of an injunction: Ramsay v Aberfoyle
Manufacturing Company (Australia) Pty Ltd
(1935) 54 CLR 230, at 239-40, 255-6.

Injunctions to enforce statutory rights

A second possibility is that the statute directly
confers upon a person or category of persons the
right of enforcement. This often occurs in the
context of local government legislation. Thus, in
Cooney v Ku-ring-gai Municipal Council, the local
council was authorised by s 587 of the then Local
Government Act in New South Wales to seek
injunctive relief to restrain the defendant from
using premises for the purposes of a trade or
business contrary to the provisions of a
residential proclamation

Injunctions to enforce statutory rights

The third possibility is that, if no private right
is infringed by a breach of statute, a person
will be able to seek injunctive relief if he or
she can bring themselves within the principles
of Boyce v Paddington Borough Council [1903]
1 Ch 109

 In exercising its discretion to grant relief, a court will grant an

injunction only if the breach of statute also amounts to an
infringement of public rights: Ramsay v Aberfoyle Manufacturing
Company (Australia), at 239. Repeated infringements of the statute
may constitute an infringement of public rights. In Gouriet v Union
of Post Office Workers , at AC 481; All ER at 83, Lord Wilberforce
stated that the granting of relief in such cases was an exceptional
power confined to cases where an offence is frequently repeated
in disregard of a, usually, inadequate penalty or to cases of
emergency. In Newport Borough Council v Khan [1990] 1 WLR
1185, at 1193, Beldam LJ observed that the discretion to grant the
injunction is not based upon the defendants deliberate and flagrant
flouting of the law. Rather, the court needs to draw the inference
that the defendants unlawful acts will continue unless and until
effectively restrained by the law and that nothing short of an
injunction will suffice to so restrain the defendant

Mareva orders
In Fourie v Le Roux [2007] 1 All ER 1087, at 1090, Lord
Bingham of Cornhill described the purpose of Mareva
orders as follows:

Mareva (or freezing) injunctions were from the beginning,

and continue to be, granted for an important but limited
purpose: to prevent a defendant dissipating his assets with
the intention or effect of frustrating enforcement of a
prospective judgment. They are not a proprietary remedy.
They are not granted to give a claimant advance security
for his claim, although they may have that effect. They are
not an end in themselves. They are a supplementary
remedy, granted to protect the efficacy of court
proceedings, domestic or foreign.

Mareva orders
The Mareva order was initially known as a Mareva injunction.
However, in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, at
395-6, 401; 162 ALR 294, at 304, 308, Gaudron, McHugh, Gummow
and Callinan JJ pointed out that the word injunction was
inappropriate and should be replaced with the word order on the
basis that the doctrinal basis of an injunction differs from that of
the Mareva order. The difference stems from the fact that an
injunction protects a claimants legal or equitable rights whereas
the purpose of a Mareva order is to prevent the frustration of the
court process: RFD Ltd v Harris [2008] WASCA 87, at [37]. In Cardile
v LED Builders, at CLR 412; ALR 318, Kirby J preferred the term
asset preservation order. In England a Mareva order is generally
now referred to as a freezing order

Jurisdiction
The most controversial issue surrounding the Mareva order when it
first appeared was the question of the jurisdiction of the court to
make such an order. The Mareva orders effect was to prevent an
alleged debtor from freely dealing with his or her assets. However,
established authority had long ago declared that a person cannot
get an injunction to restrain a man who is alleged to be a debtor
from parting with his property: Lister v Stubbs (1890) 45 Ch D 1, at
14. Initially the English courts asserted that the then successor
provision to s 25(8) of the Judicature Act 1873 granted them
jurisdiction to make Mareva orders. Section 25(8) and its equivalent
provisions in Australian jurisdictions enable the court to grant
interlocutory injunctions in any cases where it is just and
convenient to do so
Supreme Court Act 1970 (NSW) s 66

Requirements for obtaining a Mareva

Order
In Glenwood Management Group Pty Ltd v Mayo (1991) 2
VR 49, at 49-54, Young CJ indicated that there are three
basic requirements to be satisfied before a court will grant
a Mareva order. They are: (i) that the plaintiff a good
arguable case; (ii) that there is a risk of dissipation or
secretion of assets so as to render any judgment which the
plaintiff may obtain nugatory; and (iii) that the balance of
convenience favours the grant of a Mareva order. His
Honour, at 54-5, also observed that the three elements
overlap and that the granting of a Mareva [order] is always
a matter of discretion. For example, as the strength of the
arguable case diminishes so the balance of convenience
moves in favour of the defendants and vice versa.

A risk of dissipation of assets

The risk that the defendant will dissipate
assets before judgment refers to the
underlying basis of the Mareva order and has
been described as the heart and core of the
Mareva order: Barclay-Johnson v Yuill [1980] 3
All ER 190, at 194. There must be a real
danger that the defendant will default if
judgment is obtained against him or her

The plaintiffs cause of action

A Mareva order can only be obtained if the plaintiff has a cause of
action that is justiciable within the jurisdiction. If the Mareva order
is not ancillary to some such pre-existing cause of action it will not
be granted. In Siskina v Distos Compania Naviera SA [1979] AC 210,
at 256; [1977] 3 All ER 803, at 824, Lord Diplock said:

A right to obtain [a Mareva order] is not a cause of action. It cannot

stand on its own. It is dependent upon there being a pre-existing
cause of action against the defendant arising out of an invasion,
actual or threatened by him, of a legal or equitable right of the
plaintiff for the enforcement of which the defendant is amenable to
the jurisdiction of the court. The right to obtain [a Mareva order] is
merely ancillary and incidental to the pre-existing cause of action. It
is granted to preserve the status quo pending the ascertainment by
the court of the rights of the parties.

Balance of convenience

In exercising its discretion whether or not to grant a Mareva order the court
weighs up the strength of the plaintiffs cause of action and the risk that the
defendant will dissipate his or her assets against various discretionary factors such
as delay and whether there has been a full and frank disclosure by the plaintiff. In
Cardile v LED Builders, at CLR 380; ALR 311, the High Court said:
Discretionary considerations generally also should carefully be weighed before an
order is made. Has the applicant proceeded diligently and expeditiously? Has a
money judgment been recovered in the proceedings? Are proceedings (for
example civil conspiracy proceedings) available against the third party? Why, if
some proceedings are available, have they not been taken? Why, if proceedings
are available against the third party and have not been taken and the court is still
minded to make a Mareva order, should not the grant of the relief be conditioned
upon an undertaking by the applicant to commence, and ensure so far as is
possible the expedition of, such proceedings? It is difficult to conceive of cases
where such an undertaking would not be required. Questions of this kind may be
just as relevant to the decision to grant Mareva relief as they are to a decision to
dissolve it. These are matters to which courts should be alive.

Anton Pillar Orders

The Anton Piller order derives its name from the case of Anton Piller
KG v Manufacturing Processes Lt
An Anton Piller order is similar to a Mareva order in that it seeks to
preserve property and prevent the defendant frustrating the
administration of justice. But, rather than ensuring that the
judgment debt will ultimately be met by the defendant, it aims to
gather and protect crucial evidence to the plaintiffs case, which
may be yet to commence. The Anton Piller order enables this by
ordering the defendant to allow the plaintiff access to the
defendants premises so that the plaintiff may inspect, copy and
collect material which is necessary for it to successfully bring its
case but which it fears will be destroyed: Long v Specifier
Publications Pty Ltd (1998) 44 NSWLR 545, at 547 d [1976] 1 Ch 55

Jurisdiction
In Simsek v Macphee (1982) 148 CLR 636, at 640-1; 40
ALR 61, at 65, Stephen J, in a single instance decision in
the High Court, stated that the power of the court to
grant an Anton Piller order stemmed form the courts
inherent jurisdiction. In other cases it has been said
that the jurisdiction rests either on the inherent
jurisdiction of the court or the statutory conferral of
powers to aid the operation of the courts, such as s 23
of the Federal Court Act 1976 (Cth): Microsoft Corp v
Goodview Electronics Pty Ltd (1999) 46 IPR 159. In all
Australian jurisdictions the court rules now explicitly
confer power upon the court to grant Anton Piller
orders

Requirements for an Anton Piller

Order
In Anton Piller KG v Manufacturing Processes Ltd, at Ch
62; All ER 784, Ormrod LJ set out the essential
elements of obtaining this ex parte relief as follows:

First, there must be an extremely strong prima facie

case. Secondly, the damage, potential or actual, must
be very serious for the applicant. Thirdly, there must be
clear evidence that the defendants have in their
possession incriminating documents or things, and that
there is a real possibility that they may destroy such
material before any application inter partes can be
made

Requirements for an Anton Piller

Order
The clear evidence of both possession and risk
of destruction required under the third element
is certainly the greatest challenge to the plaintiff.
Despite an early generosity in granting Anton
Piller orders by the courts, it is apparent that
more is needed these days than a mere suspicion
that the defendant will shred the evidence. An
Anton Piller order is not an investigatory order:
Microsoft Corp v Goodview Electronics Pty Ltd
(1999) 46 IPR 159, at 164; Hytrac Conveyors v
Conveyors International Ltd [1982] 3 All ER 415,
at 418

The rights of the defendant

A defendant who is confronted on his or her doorstep by a
party of persons wishing to execute an Anton Piller order
faces a fairly onerous task in resisting them. Refusal to
comply with the courts order is, of course, contempt and
this will be found even when the defendant has refused to
comply in order to launch an ultimately ill-fated application
to have the order dissolved. The order may be challenged
on the ground that any of the requirements the plaintiff
was supposed to meet - including the manner of the
orders execution - have not been properly addressed.
Given the high importance which the court places upon a
plaintiff in respect of meeting these requirements prior to
an order being granted, it is extremely unlikely that such an
order will be set aside upon application by the defendant

Specific Performance
In Wolseley Investments Pty Ltd v Gillespie [2007] NSWCA 358, at
[33], Santow JA (Ipp and Tobias JJA agreeing) said that the trigger
for the commencement of a specific performance suit will be some
threat of refusal, express or at least implied, or some actual refusal,
on the part of a contracting party to perform the contract in whole
or part. His Honour, at [19], also noted that, in cases of a
threatened breach of a contract, the threat does not need to be
explicit, but there must be more than merely a theoretical or
remote possibility of a breach. However, in such cases, his Honour,
at *47+, also observed that a court has to consider the likelihood or
degree of risk of non-performance before granting specific
performance. Also to be considered is the discretionary factor of
hardship and balance of convenience.

In personam
Like most equitable remedies specific performance is in personam
in nature. This essentially means that the remedy attaches to the
person of the defendant rather than to his or her property (in rem).
This has the result that, provided the defendant is within the
jurisdiction of the court, specific performance can be ordered even
though the property the subject of the contract may be outside the
courts jurisdiction. Thus, in Richard West & Partners (Inverness) Ltd
v Dick [1969] 2 Ch 424, an English court ordered specific
performance of a contract for the sale of land where the property
was located beyond the courts jurisdiction in Scotland. Because of
the in personam nature of specific performance, the sanction for
non-compliance with an order for specific performance focuses on
the person and not on the contract or property the subject of the
contract. Thus, a defendant who fails to comply with the order will
be guilty of contempt of court with the ultimate consequence of
being imprisoned for such contempt

Binding contract not for valuable

consideration

Need valuable consideration

Inadequacy of damages at common

law
If a plaintiff can be adequately compensated
by an award of damages at common law the
court has no jurisdiction to order specific
performance. The adequacy or inadequacy of
common law damages is determined by
reference to the date of the order for specific
performance and not the date of the contract:
ANZ Executors & Trustees Ltd v Humes Ltd
[1990] VR 615, at 632

Inadequacy of damages at common

law
The question to be answered on the issue of the
adequacy of damages is whether relegating the
plaintiff to damages would leave it in as
favourable a position in all respects as would exist
if the defendants obligation were specifically
performed: International Advisor Systems Pty
Limited v XYYX Pty Limited [2008] NSWSC 2, at
[41]
Contracts for personalty
Contracts for land

Personal services contracts

Equity will not enforce a contract if to do so
would result in compelling the defendant to
maintain a personal relationship with the
plaintiff. The underlying rationale for this
principle lies in human nature and the
undesirability of maintaining a personal
relationship against the will of one of the parties
to the contract. As was observed by Fry LJ in De
Francesco v Barnum (1890) 45 ChD 430, at 438,
courts are bound to be jealous, lest they should
turn contracts of service into contracts of slavery

Constant court supervision

Contracts in which the parties obligations are imprecisely defined will generally
not be specifically enforced. The rationale for this principle stems from the fact
that that non-compliance with an order for specific performance is punishable as a
contempt of court. Given the quasi-criminal consequence of contempt, it is
entirely appropriate that the obligation to be specifically enforced be sufficiently
certain and precise so as to make the defendants duty, in complying with the
order, clear. In Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
[1998] AC 1, at 1213; [1997] 3 All ER 297, at 13023, Lord Hoffmann said:
It is the possibility of the court having to give an indefinite series of rulings to
ensure the execution of the order which has been regarded as undesirable. Why
should this be so? A principal reason is that the only means available to the
court to enforce its order is the quasi-criminal procedure of punishment for
contempt The prospect of committal or even a fine, with the damage to
commercial reputation which will be caused by a finding of contempt of court, is
likely to have at least two undesirable consequences. First, the defendant has to
make decisions under a sword of Damocles Secondly, the seriousness of a
finding of contempt for the defendant means that any application to enforce the
order is likely to be expensive in terms of cost to the parties and the resources of
the judicial system.

Hardship
An order for specific performance will be refused
if it would result in unconscionable hardship
upon the defendant. It is not any hardship to the
defendant that will suffice. As was made clear in
Dowsett v Reid (1912) 15 CLR 695, the court must
balance the potential hardship to the defendant
that would result if specific performance were
granted with the potential hardship to the
plaintiff if specific performance were refused. If
the two cancel each other out, specific
performance will be ordered despite the hardship
to the defendant.28

Vitiating factors
Equitable relief will be refused if the contract
is affected by vitiating factors due to the
defendants conduct or actions. Thus,
contracts induced by a defendants
misrepresentation, mistake, duress, undue
influence
Unconscionability

Lack of mutuality
Specific performance is not available to a plaintiff unless the
defendant could also have obtained relief against the plaintiff. This
principle of mutuality cannot be raised by a defendant if the reason
that the defendant could not get equitable relief against the
plaintiff is to be found in the defendants own conduct or default.
Thus, if the defendant cannot get equitable relief because of some
misrepresentation, unconscionable conduct, undue influence,
laches and the like on his or her part, the plaintiff will not be denied
relief on lack of mutuality grounds. The classic example of a lack of
mutuality is a contract with a minor. The minor will be unable to
receive an order for specific performance against the other party as
that person will be unable to insist upon his or her rights against the
minor. Thus, there is a lack of mutuality, which impairs the minors
own ability to seek the equitable remedy: Boyd v Ryan (1947) 48 SR
(NSW) 163

Lack of mutuality
The critical aspect of the mutuality principle is the question of when
mutuality must be present. In Price v Strange [1978] Ch 337; [1977]
3 All ER 371, it was held that the critical time for mutuality to be
present is the date on which the court is to make the order for
specific performance. The fact that mutuality may not have existed
at an earlier time is irrelevant. In Price v Strange, mutuality was not
present at the time of the breach of contract because the plaintiffs
obligation to repair and renovate an aparatment would have
required the constant supervision of the court, thus precluding the
defendant from obtaining specific performance
However, by the time of the hearing, the repairs and renovations
had been completed, and thus there was no reason why the
defendant would not have been able to obtain specific performance
against the plaintiff. Thus, mutuality was present at the date of
hearing and the plaintiff obtained his order for specific
performance.

Plaintiff in substantial breach and/or

not ready, willing and able to perform
A plaintiff will be denied equitable relief if he or she is
in substantial breach of the contract. A substantial
breach means a breach that would enable the other
party to terminate the contract for that breach. Other
breaches do not disqualify a plaintiff from obtaining
relief in equity. In Green v Sommerville (1979) 141 CLR
594, at 610; 27 ALR 351, at 363, Mason J said:
It is well settled that a plaintiff in a suit for specific
performance is not required to show that he has
strictly complied with all of his obligations under the
contract; it is enough that he has performed and is
ready and willing to perform the substance of the
contract.

Contracts unenforceable at law and

Part performance
The relief given is such cases was described by
Young CJ in Eq in Ciavarella v Polimeni [2008]
NSWSC 234, at [119], as follows:
[I]f it would be fraudulent in the eyes of equity
for the opposing party to rely on the statute,
equity will order that that party execute a note or
memorandum of the contract and will then
proceed to grant specific performance. The
plaintiff is not given relief because of the
contract, rather the conduct of the parties
subsequent to the contract raises an equity.

Equitable compensation and damages

There are two possible bases for an order for the payment
of money to an aggrieved party at equity. The first arises
from the inherent jurisdiction of equity to make orders for
monetary compensation as an appropriate means to
remedy a purely equitable wrong such as breach of
fiduciary duty. This is known as equitable compensation.
The second is the ability conferred by statute for an order
of damages to be substituted for, or added to, specific
performance or injunction where those remedies have
been sought in respect of contracts, torts or any wrongful
act. Thus, in certain situations, equity has the power to
provide for a remedy of damages in respect of a common
law wrong. This is referred to as equitable damages.

Equitable compensation
Although equity courts never ordered damages as a remedy for the
infringement of equitable obligations, they did provide for
monetary forms of relief. In Ex parte Adamson (1878) 8 Ch D 807, at
819, James and Baggallay LJJ noted that relief in such cases was by
way of a suit for equitable debt or liability in the nature of a
debt. It was a suit for the restitution of the actual money or thing,
or value of the thing, of which the cheated party had been cheated.
Equitable compensation orders were originally restricted to cases
involving breaches of fiduciary obligations. Thus, in Re Dawson
(decd) [1966] 2 NSWR 211, a trustee who had improperly dealt
with trust funds was ordered to pay equitable compensation to the
trust to restore the trust to the position it would have been in had
there been no default on his part.

Equitable compensation
The modern authority for the availability of equitable compensation
is Nocton v Lord Ashburton [1914] AC 932 in which Ashburton
sought to recover compensation from his solicitor Nocton for advice
that had resulted in a loss for him, but an advantage for the
solicitor. Ashburtons claim for common law damages in the tort of
deceit failed, but the House of Lords was prepared to award
monetary compensation on the basis of Noctons breach of
fiduciary obligations. Viscount Haldane LC, at 952, affirmed the
longstanding ability of the equity courts to order monetary
compensation, and said:
Operating in personam as a Court of conscience it could order the
defendant, not, indeed, in those days, to pay damages as such, but
to make restitution, or to compensate the plaintiff by putting him in
as good a position pecuniarily as that in which he was before the
injury.

The nature of equitable

compensation
In achieving its goal of restoring the position of the plaintiff
to the position that he or she was in before the breach of
equitable obligation occurred, equitys approach to
compensation, like all other equitable remedies, is
conditioned by its flexible character: Cole v Manning
[2002] NSWCA 150, at [63]. The appropriate date for the
assessment of equitable compensation is the date on which
the court makes the order for compensation and the
quantum of compensation should reflect the amount that
is necessary to put the plaintiff back into the position in
which he or she would have been had there been no
breach of equitable obligation: McNally v Harris (No 3)
[2008] NSWSC 861, at [12]-[17].

The relationship to the common law

conception of damages
An important question in relation to equitable compensation is the
extent to which equitys purpose of restoring a plaintiff to his or her
original position differs from that of common law damages.
Common law damages are also focused upon returning the plaintiff
to the position he or she would have been in had the wrong not
occurred: Wenham v Ella (1972) 127 CLR 454. Although both
common law and equity share the aim of providing monetary
compensation to a plaintiff, there are significant differences
between them in relation to the principles to be applied in
assessing the quantum of monetary relief. The most important of
these differences is that the liability under equity for breach of trust
or fiduciary duty is more absolute than liability that arises under the
common law of contract or tort.

Causation
. In Maguire v Makaronis (1997) 188 CLR 449,
at 473; 144 ALR 729, at 744, Brennan CJ,
Gaudron, McHugh and Gummow JJ observed
that, in equitable compensation cases, a
common sense view of causation required
that there be an adequate or sufficient
connection between the equitable
compensation claimed and the breach of
*equitable obligation+.

Causation
A consequence of this approach is that a
defendant in equity cannot resist a finding of
adequate causation by arguing that there was
a break in the causal connection between
breach of loss suffered by reason of some
intervening act (novus actus interveniens).
Equity is not readily susceptible to such
speculation about other possible causes for
loss when there is a clearly identifiable breach
present

Plaintiffs contribution to loss

In New Zealand and Canada courts have held
that a plaintiffs claim for equitable
compensation may be successfully defended
on the basis that his or her contribution to the
loss may be a complete or partial defence to
liability on the part of the defendant: Day v
Mead [1987] 2 NZLR 443, at 451; Canson
Enterprises Ltd v Boughton & Co [1991] 3 SCR
534, at 585; (1991) DLR (4th) 129, at 151.

Plaintiffs contribution to loss

In Australia, however, this approach has been rejected by the High Court in
Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165; 180 ALR 249. In
this case, the facts concerned the takeover by Kia Ora Gold Corp Ltd of
Western United Ltd, a company in which many of Kia Oras directors held
an interest. Under such circumstances, law required the preparation of a
report by independent qualified persons for the information of
shareholders whose approval was ultimately required at a general
meeting. The firm of chartered accountants engaged by Kia Ora had, in
fact, a long history of dealing with both that company and Western United
Ltd. The report asserted that the price to be paid for the shares in Western
United was fair and reasonable. In reality this was not the case with Kia
Ora paying out around $26m for $6m worth of shareholdings and thus
enabling huge personal profits to be made by the Kia Ora directors who
held shares in Western United. Kia Ora subsequently brought an action
against the partners of the accountancy firm seeking to recover for its loss.

Plaintiffs contribution to loss

The Full Court of the Supreme Court of South
Australia in Duke Group Limited (in liq) v
Pilmer (1999) 73 SASR 64 found the
accountants to be in breach of the
contractual, tortious, and fiduciary duties
which they owed to the company. Ultimately,
the court measured the damages payable by
the defendants using the principles relevant to
breach of contractual duty, since these
resulted in the higher figure.

Plaintiffs contribution to loss

However, although thus not strictly necessary to
decide, the Full Court considered the effect which a
plaintiffs contribution to loss would have upon an
assessment of equitable compensation for breach of
fiduciary duty. In this respect, the Full Court, at 250,
said that it would be:
inherently unjust, and we would say, inequitable, to
require a defendant, whose fiduciary breach unlocked
the door to the plaintiff acting in obvious disregard of
its own interests, to bear sole responsibility for the
total loss thereby suffered by the plaintiff where the
plaintiffs own conduct has made a material
contribution to that loss.

Plaintiffs contribution to loss

The appeal to the High Court by the former partners of the accounting firm
succeeded on the basis that the calculation of damages to compensate for Kia
Oras loss had been incorrect and also that no fiduciary obligation had been
breached. Although Kirby J disagreed on the latter score, the court was of one
mind in rejecting any place for reduction on the basis of the plaintiffs conduct in
the determination of equitable compensation. The reasons included an
appreciation of the essence of the fiduciary relationship in which the beneficiary
has no obligation to protect himself or herself against the fiduciary and the nature
of contributory negligence in tort law. McHugh, Gummow, Hayne and Callinan JJ,
at CLR 2012; ALR 274, said:

Contributory negligence focuses on the conduct of the plaintiff, fiduciary law upon
the obligation by the defendant to act in the interests of the plaintiff. Moreover,
any question of apportionment with respect to contributory negligence arises
from legislation, not the common law. Astley indicates that the particular
apportionment legislation of South Australia which was there in question did not
touch contractual liability. The reasoning in Astley would suggest, a fortiori, that
such legislation did not touch the fiduciary relationship.

Other factors
Mitigation
Exemplary damages - Harris v Digital Pulse Pty
Ltd (2003) 56 NSWLR 298
Aggravated damages - Giller v Procopets
[2008] VSCA 236

EQUITABLE DAMAGES
Chancery Amendment Act 1858 (UK), more popularly
known as Lord Cairns Act
s 68 of the Supreme Court Act 1970 (NSW) which states:
Where the Court has power:
(a) to grant an injunction against the breach of any
covenant, contract or agreement, or against the
commission or continuance of any wrongful act, or
(b) to order the specific performance of any covenant,
contract or agreement,
the Court may award damages to the party injured
either in addition to or in substitution for the
injunction or specific performance.

Lord Cairns Act damages

In Wentworth v Woollahra Municipal Council
(1982) 149 CLR 672, at 676; 42 ALR 69, at 72,
Gibbs CJ, Mason, Murphy and Brennan JJ referred
to the purpose of Lord Cairns Act in the following
terms:
The main object of the Act was to enable the
Court of Chancery to do complete justice
between the parties by awarding damages in
those cases in which it formerly refused equitable
relief in respect of a legal right and left the
plaintiff to sue for damages at common law.

Jurisdiction to award equitable

damages
Before equitable damages can be awarded,
the court must have the jurisdiction to order a
decree of specific performance or an
injunction. Thus, if such equitable relief is
refused on the basis that damages at common
law are adequate, the court has no jurisdiction
to award equitable damages.

Equitable damages in addition to

specific relief
The provisions of Lord Cairns Act clearly
envisage the making of an order for damages
in addition to specific performance or
injunctive relief. This is especially useful in
enabling the court to address the issue of any
losses caused to the plaintiff by the
defendants breach that are not properly
addressed by an order for equitable relief.

Equitable damages in lieu of specific

relief
the fact that specific relief is denied on
discretionary grounds does not preclude the
court from ordering equitable damages.
where specific relief once ordered becomes
impossible to carry out due to intervening
circumstances, a court will readily make an
order for equitable damages in lieu of specific
relief.