Equitable remedies 

Equitable remedies are discretionary. That is not a licence for idiosyncrasy — the discretion is exercised on settled principles — but it means no plaintiff is entitled to one as of right, and an answer that awards specific performance without addressing the discretion has skipped the hard part.

Specific performance

An order compelling performance of a contractual obligation. Available where damages are inadequate, which is presumed for contracts concerning land and readily found for unique chattels and for shares in a private company, and rarely found for ordinary goods available in the market.

Recognised limits and discretionary bars:

• contracts for personal services, which the court will not compel;
• contracts requiring constant supervision, a consideration now applied flexibly rather than as an absolute bar, though the underlying concern for a sufficiently certain, enforceable obligation remains real, as JC Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282¹ shows, and as the joint reasons in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30² treat it, as a question of degree rather than an absolute restriction (a case about interlocutory orders, not specific performance of a contract);
• want of mutuality, want of certainty in the obligation to be performed;
• hardship to the defendant, including hardship arising after the contract;
• the plaintiff's own conduct — unclean hands, delay, or not being ready and willing to perform;
• prejudice to a third party.

Damages may be awarded in substitution for or in addition to specific performance or an injunction under the equitable damages provision of each jurisdiction's legislation, which matters where the equitable remedy is refused or has become impossible.

Injunctions

Classified by what they do and when they are granted:

• prohibitory, restraining conduct, and mandatory, compelling it — the latter granted more cautiously and requiring the order to be expressed with precision;
• quia timet, restraining an apprehended wrong not yet committed, requiring a sufficiently imminent and serious threat;
• perpetual, granted at trial, and interlocutory, granted to hold the position until trial.

For an interlocutory injunction the Australian formulation asks two questions: whether there is a serious question to be tried — a prima facie case in the sense that the plaintiff has a sufficient likelihood of success to justify preserving the status quo — and where the balance of convenience lies, including the adequacy of damages to each party. The two are considered together rather than as sequential hurdles. The applicant must give the usual undertaking as to damages, and it is a real exposure, not a formality.

Equity's auxiliary jurisdiction also supplies freezing orders, restraining dealings with assets to prevent a judgment being rendered fruitless, and search orders, permitting inspection and preservation of evidence. Both are exceptional, both are usually sought without notice, and both carry a strict duty of full and frank disclosure.

Monetary remedies

Equitable compensation repairs loss caused by a breach of trust or fiduciary duty. Its causation enquiry is equity's own — commonly framed as what would have happened had the duty been performed, assessed with hindsight at the date of judgment — and common law remoteness and contributory negligence are not simply transplanted into it.

Account of profits strips a gain rather than repairing a loss. It responds to breach of fiduciary duty, breach of confidence and some intellectual property wrongs. The defendant may be allowed something for skill and effort, at discretion, and dishonesty will forfeit that allowance. A plaintiff must generally elect between an account and compensatory damages before judgment, since the two are inconsistent.

Rescission and rectification

Rescission unwinds a transaction for misrepresentation, mistake, duress, undue influence, unconscionable dealing or breach of fiduciary duty. Equity can rescind where the common law could not, because it can order accounts, allowances and adjustments to achieve substantial restitution. It is barred by affirmation, delay, the intervention of third party rights, or where restitution has become impossible in substance.

Rectification corrects a written instrument that fails to record what the parties actually agreed. It requires convincing proof of a common intention continuing to the moment of execution, and it corrects the document, never the bargain.

Bars to relief

Clean hands, laches and acquiescence, hardship, impossibility of supervision, third party rights, and the adequacy of damages. Address them; they are the discretion.

Applying this in a problem question

1. Identify the right infringed and whether it is legal or equitable.
2. Ask whether damages are adequate, and say why not.
3. Select the remedy and state its specific requirements.
4. Work through the discretionary bars on the facts.
5. Consider whether equitable damages in substitution are the better outcome.

Where the authority sits

Case law, with the equitable damages provision in each jurisdiction's supreme court or civil procedure legislation, and court rules governing freezing and search orders.

For a Remedies-focused route through specific performance, injunctions and declarations, see Equitable relief: specific performance, injunctions and declarations.