Published: Wed, 07 Mar 2018
Cases On Equitable Remedies
Nutbrown v Thornton (1804) 10 Ves 159
Specific performance was ordered of a contract to supply machinery which
could not be readily obtained elsewhere.
Cohen v Roche  1 KB 169
The court refused specific performance to a buyer of a set of Hepplewhite
chairs saying that they were ‘ordinary articles of commerce and of no special
value or interest’. Note: the buyer was contracting with a view to resale and
for personal use.
Beswick v Beswick  AC 58
A nephew promised his Uncle to pay an annuity to his Aunty in consideration
of the Uncle transferring the goodwill of the business to the nephew. The Aunty
was not a party to the contract. The court held that it could be specifically
enforced by the Uncle’s personal representative (the Aunty) against the nephew.
Damages would have been purely nominal as the promisee or his estate had
suffered no loss. The nephew would have been unjustly enriched by being allowed
to retain the entire benefit of the uncle’s performance without performing his
Walters v Morgan (1861)
The defendant agreed to grant the plaintiff a mining lease over land he had
just bought. Specific performance was refused as the plaintiff had produced a
draft lease and induced the defendant to sign the agreement in ignorance of the
value of the property. The plaintiff had hurried the defendant into signing the
lease before he knew the value of the property.
Lamare v Dixon (1873) LR 6 HL 414
The plaintiff induced the defendant to agree to take a lease of cellars by
orally promising they would be made dry. The promise had no effect as a
misrepresentation as it related to the future. The court refused the plaintiff
specific performance since he had made no attempt to perform his promise.
Patel v Ali  1 All ER 978
The vendor and her husband were co-owners of the house they contracted to
sell in 1979. The husband’s bankruptcy caused delay in completion. After the
contract the vendor got bone cancer, had a leg amputated and later gave birth to
her second and third children. The purchaser obtained specific performance,
against which the vendor appealed on grounds of hardship. She spoke little
English and relied on friends and relatives for help, hence it would be hardship
to leave the house and move away. It was held that the court could in a proper
case refuse specific performance on the grounds of hardship subsequent to the
contract, even if not caused by the plaintiff and not related to the subject
matter. On the facts, there would be hardship amounting to injustice, therefore
damages were awarded.
Wolverhampton Corp v Emmons  1 KB 515
The plaintiff acquired land for an improvement scheme and sold part of it to
the defendant, who covenanted to demolish houses on it and build new ones. The
demolition was carried out and plans for new houses approved. The defendant then
refused to continue. It was held that specific performance would be ordered
since the defendant’s obligations were precisely defined by the plans, and
damages would be inadequate because the defendant had possession of the site,
and the plaintiff could not get the work done by employing another contractor.
Ryan v Mutual Tontine Assoc  1 Ch 116
A lease of a service flat provided that the lessors should provide a porter
who was to be ‘constantly in attendance’. It was held that this undertaking
could not be specifically enforced. It would require ‘that constant
superintendence by the court which the court has always in such cases declined
Posner v Scott-Lewis  3 All ER 513
The court granted an application for specific performance of a lessor’s
covenant to employ a resident porter for certain duties. The court distinguished Ryan v Mutual Tontine, where supervision of the execution of the
undertaking had been required. Here neither personal services, nor a continuous
series of acts, were required, but merely the execution of an agreement
containing provisions for such services.
Co-Op Insurance v Argyll Stores  3 All ER 297
The defendants leased a shopping unit for 35 years and covenanted to use it
as a supermarket and keep it open during the usual hours of business. The
defendant gave notice to the plaintiffs of their intention to close the
supermarket, which had made a substantial loss the previous trading year.
The House of Lords held that a covenant in a lease of retail premises to keep
open for trade during the usual hours of business was not, other than in
exceptional circumstances, specifically enforceable, since it was the settled
practice of the court not to make an order requiring a person to carry on a
business. That practice was based on sound sense, as such an order required
constant supervision, was only enforceable by the quasi-criminal procedure of
punishment for contempt and might cause injustice by allowing the plaintiff to
enrich himself at the defendant’s expense if the defendant was forced to run a
business at a loss.
Page One Records v Britton  1 WLR 157
The Troggs, a pop group, contracted to appoint the plaintiff as their sole
agent and manager for five years, and agreed not to act themselves in such
capacity and not to appoint any other person for that time. They fell out with
the manager and wanted to replace him. The plaintiff sought an injunction. It
was held that an injunction must be refused because to grant it would, in
effect, compel The Troggs to continue to employ the plaintiff, and thus would
amount to enforcing the performance of a contract for personal services.
Lumley v Wagner (1852)
The defendant contracted to sing for the plaintiff in his theatre for three
months and, at the same time, not to sing elsewhere during this time without the
plaintiff’s consent. A third party, Gye, offered the defendant a larger sum to
sing for him. The court stated that they had no power to make the defendant sing
or encourage her to sing at the plaintiff’s theatre. However, the court could
persuade her to do so by preventing her singing elsewhere by imposing an
injunction to that effect.
Warner Bros v Nelson  1 KB 209
The defendant, an actress, agreed (1) to act for the plaintiff and, at the
same time, (2) not to act or sing for anybody else for two years without the
plaintiff’s written consent, and (3) no other employment could be taken up
during this period without the plaintiff’s consent. It was held that the
defendant could be restrained by injunction from breaking the second
undertaking. She would not be forced to act for the plaintiff because she could
earn a living by doing other work.
DAMAGES IN LIEU OR IN ADDITION
Grant v Dawkins  1 WLR 1406
The vendor’s title to land was subject to an encumbrance which amounted to a
breach of contract. It was held that the plaintiff could get specific
performance of what title the defendant had, damages based on the cost of
discharging the encumbrance.
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