Card Set Information

2012-09-10 09:16:04
Specific Performance

Show Answers:

  1. 1. Lack of Mutuality
    Flight v Boland (1828) - suitor was a minor
    The court must ensure that the plaintiffs unperformed obligations will be specifically performed in order to compel the defendant to perform his obligations, unless damages to the defendant would be an adequate remedy on the plaintifs part
  2. Price v Strange
    Unwritten agreement that the plaintiff would carry out repairs for a new lease. D took over repairs half way through and plaintiff sought SP which was refused by trial judge as it was not capable of mutual enforcement at the time of agreement. COA held mutual availability be enforced at time of trial hearing  rather than agreement
  3. Tamplin v James (1880)
    Similar to Webster v Cecil except that D mistakenly assumed that the land was a larger amount included in the sale as he had never actually looked at the plans. The judge held that if such a defence were to be allowed it would open the door to fraud and SP was granted
  4. Mistake

    Ferguson V Merchant Banking Ltd (1993)
    The liquidator of D contested an action for SP of a contract for the sale of land because D had mistakenly included a plot of vacant land with development potential. High Court ccepted that there had been a mistake but no fundamental error or absence of agreement on any term. SP was ordered
  5. Hardship:
    Roberts v O'Neill [1983]
    Patel v Ali [1984]
    This is a purely discretionary consideration. Hardship is generally judged at the time at which the contract is entered into rather than the hardship suffered after the contract is made
  6. Roberts v O'Neill [1983]:
    Hardship can not be a defence to SP due to inflation alone
    Vendor attempted to use hardship as a defence to SP of a contract for the sale of a pub due to a large increase in the value of the property since the date of the contract
  7. Patel v Ali [1984]:
    Extreme circumstances where SP was refused
    D became ill with bone cancer and had to have one of her legs amputated while also heavily pregnant with her second child. Her husband was sent to prison on bankruptcy charges and she spoke no English relying on neighbours and family. This all came about just after an agreement to sell her house
  8. Delay:
    "Delay Defeats Equity"
    • McGrath v Stewert [2008]:
    • P sought an order for SP in respect of a contract for the sale of 2 properties. P agreed to pay 25,000 pounds each on June 8 1998. The closing date fixed by the contract was July 23 1998. A dispute arose as to whether the properties were to be sold with vacant possession. Later that year it became clear that D was in breach of contract when he failed to convey the property. However, it was not until 2004 that proceedings were started by which time the value of the properties would have been between 250,000 pounds and 270,000 pounds. Roderick Murphy J held that to make an order for specific performance against the defendant would be inequitable
  9. Illegality, Immorality and Contrary to Public Policy

    "He who comes to Equity must come with Clean Hands"
    Where a clause in restraint of trade, for example, is an illegal element of a contract, the contract may stand if the portion which the courts will not enforce on grounds of public policy can be severed

    Starling Securities v Woods - Under the counter payments were made in sale of property
  10. Worth v Tyler [1974]
    • Contract for the sale of a house. Subsequently, D's wife acquired a right to occupy the property and refused to vacate. P sought an order for SP. Court refused on 2 grounds of public policy
    • 1. It was against public policy to require a husband to instigate proceedings against wife
    • 2. The wife would retain a right to occupy but the husband and children would be subject to eviction. Splitting up the family is also against public policy
  11. Kavanagh v Caulfield (unreported 2002)
    The onus of proving illegality of a contract is in this case on the defendant to prove an illegal intention on the part of the plaintiff.

    There was found to be no evidence of an intention of the plaintiff to defraud. He had paid money to a charity as requested by the defendant.
  12. Frustration / Impossibility
    • Neville & Sons Ltd v Guardian Builders Ltd [1990]
    • D claimed that the land that he needed to buy in order for there to be access to build on the land he already owned amounted to frustration as he was having trouble acquiring the land.
    • National Carriers Ltd v Panalpina Ltd [1981]: Frustration of a contract takes place when there supervenes an event which significantly changes the nature of the contract that it would be unjust to hold them to the terms of the contract e.g. an act of God
  13. "External factors which so radically alter the basic assumption on which a contract is founded that its performance is impossible or futile" Friel
    • Paradine v Jane (1647):
    • Lands were requisitioned by armed fores during English Civil War
    • Gamble v Accident Assurance Co (1869):
    • An insurance policy contained a term thatthe insured should inform the company of any accident within 7 days. The insured died by drowning and did not notify the company