Equitable Remedies
Injunctions
Northern London Railway Co v Great Northern Railway Co –
confirmed that the merging of the different streams had not given
any extra power to the courts, no new rights
South Carolina Insurance Co v Assurantie – just because
conduct is bad does not create a right, must have a legal cause
of action
ABC v Lenah Game Meats – no cause of action as there was
nothing between the two parties
Nagle v Fielden – UK case, in order to train horses a person has
to be licenced by club stewards, licence was refused because
she was a woman, her employees were given licences, sought
declaration that practice was void against public policy and
injunction, held that if employment governed by body and they do
something to affect your right to employment then you have an
action
Buckley v Tutty – rugby league had to get a transfer fee to
transfer, argued restraint of trade, no contract between player
and league, upheld injunction citing Nagle
Injunctions
Victoria Park Racing v Taylor – Built a tower to broadcast races
over the radio, attendance went down, sued for injunction, issue
whether plaintiff has a proprietary right over scenery of event
(cause of action), held no breach of any law and therefore no
cause of action, does not protect intangible rights, must have a
proprietary right to have an injunction
ABC v Lenah Game Meats Pty Ltd – Slaughter of possums
secretly filmed by trespasser, film innocently fell into hands of
ABC, injunction dissolved as rejected right to privacy for
corporations, left the door open for tort’s development for
individuals
Kennaway v Thompson – motor boat racing, owned a house next
to lake, lots of noise etc, weighed up public interest, granted
limited injunction restricting hours of boat racing, offered to pay
damages, just because could pay damages doesn’t mean can’t
get an injunction
Miller v Jackson – living next to cricket field, balls being hit into
yard, knocking to get the balls from backyard, originally found in
home owner’s favour, upheld appeal saying plaintiff should have
known that house purchased next to cricket field
Smith v Warringah Shire Council – conducted business on side of
road, built new road and barricades, lost business as traffic
diverted, had a proprietary interest, council directly affected the
plaintiff and the action was not authorised, upheld injunction
Lincoln Hunt Australia Pty Ltd v Willesee –
Buckley v Tutty – NSW Rugby League had a condition that
players who wanted to transfer could be put on a retainer list and
then the club would have to be paid a transfer fee. The plaintiff
was playing for Balmain and wanted to be transferred but did not
want to be put on the retainer list. He sought a declaration that
the transfer rules were not binding because they were an
unreasonable restraint of trade. There was no contract between
the plaintiff and the NSWRL. The court applied the English case
Nagle v Fieldman in granting the injunction saying it had the
power to intervene in order to protect s person’s right to work
despite no contract existing between the parties.
and league, they hadn’t tried to enforce the rules by suing, HC
ordered injunction as restraint of trade despite no contract
Redland Bricks Ltd v Morris - D excavated clay from land next to
plaintiff’s causing land to subside, Further subsistence shown to
be likely, D consented to injunction restraining further excavation
opposed mandatory to restore, Restoring would have cost 30,000
but land only worth 12,000, mandatory injunction refused, every
case must be determined by its particular circumstances
Tests:
o Grave damage will accrue to plaintiff in the future
o Damages will not be sufficient
o Cost of preventing future occurrences
If defendant has acted unreasonably costs of restoration may be
Chappell v TCN Channel Nine Pty Ltd - Restraining publication of ordered even if out of proportion to damages
defamatory materials should only be granted in exceptional or
very clear cases
Beecham Group Limited v Bristol Laboratories Pty Limited - Court
must consider elements of injunction with two main enquiries,
Australian Broadcasting Corporation v O’Neill - O had abducted Has plaintiff made out a prima facie case?, Would the injury the
and murdered boy in Tas, Confessed to police that had killed
plaintiff would suffer if refused outweigh injury defendant would
another boy same age after, Convicted of 1st murder but charges suffer if granted? (balance of convenience)
dropped for 2nd, ABC produced documentary alleging links with
abduction of more children, O sued for defamation and quia timet American Cyanamid Co. v Ethicon Ltd - interlocutory injunction
interlocutory injunction, Claimed he would face trial by media but only given if it will cause irreversible damage, only given to
not police, HC quashed injunction as in public interest for free
preserve status quo pending final hearing, does plaintiff have a
communication, Even if defamatory only nominal damages
serious question to be tried?
awarded
Gouriet v A-G –
Swimsure (Laboratories) v McDonald - Granted application to
Mareva Orders
continue ex parte interlocutory injunction restraining a threatening Mills v Northern Railway – Company contracted to build
malicious falsehood, For interlocutory proceedings where
infrastructure, to be paid in money and shares, built it, co paid,
evidence of actual damage is absent it is not fatal to the
outstanding amount of 64,000 pounds, debtor wanted to make
application if malice in the publication is established
sure they would get paid, wanted to issue some debentures,
creditor didn’t want them to do that, wanted to declare a dividend,
Doherty v Allman - Term of Contract to be enforced must be
sought an injunction, court granted injunction, appealed, did they
negative in substance rather than positive, Negative term
have locus standi and ability to deal with business assets, rule
enforced irrespective of whether damages would be adequate
can’t really interfere how a company runs their business,
disallowed injunction, a simple creditor cannot restrain a
Dalgety Wine Estates v Rizzon - Impossible to have a universal company simply because they are conducting business which
statement, Depends on nature of term, nature of contract, effect may be diminishing funds
of injunction and character of order required to enforce term
Lister & Co v Stubbs – court decided there was no equitable
Administrative and Clerical Officers’ Association v Cth - Cth
relationship that existed between the parties, only creditor-debtor
agreed with 2 trade unions to deduct union dues from employee relationship, which is insufficient
salaries, Cth threatened to stop this, ACOA sought injunction to
restrain ceasing paying them, Argued only way Cth could do this Nippon Yusen Kaisha v Karageorgis – greek defendants
was by terminating the contract, Refused injunction as trying to chartered ships. d’s didn’t pay money but had money in London
enforce a positive covenant
bank, were worried that they would move funds, no common law
precedent to freeze assets, first instance refused, appealed and
Buckley v Tutty - HC applied Nagle v Fielden, NSWRFL permitted overturned creating the Mareva order
clubs to put players on a ‘retain list’ if they wanted to transfer to
another club, If a club had a player on the list they could demand Mareva – same facts as above, had money but didn’t pay, sought
a transfer fee, Tutty had contract with Balmain, bound by league freezing order, gave order before final judgement, legislation said
rules, T placed on retainer list, sought to have declaration that
that you can do it to protect a legal or equitable right, must have
rules not binding on him, No contractual relationship between T actual evidence
s9 Civil Proceedings Act 2011 – if the court considers it just or
convenient
Cretanor Maritime – Mareva order as an asset freezing right is
not a type of asset forfeiture, it does not confer rights in rem, it is
in personam, if more than one person has a claim at the same
time you don’t get priority just because you have a Mareva order
Third Chandris – the type of evidence by which the court can
infer a danger of the assets being moved or destroyed, there
must be facts from which a prudent, commercial and sensible
businessman can properly determine a lack of default. A foreign
co with assets in aus, several plaintiffs all awarded Mareva order,
several factors that should be considered to have order reversed,
factors: disclosure, grounds for claim, grounds for believing
assets will be removed before judgement, Mareva order upheld,
raised appeal that will go out of business but court upheld it
saying there is good evidence that they will have funds
• Plaintiff should make full disclosure of all matters that
are material
• Pl should give particulars of their claim
• Pl should give some grounds for believing D had assets
in jurisdiction
• Pl should give some ground for believing D will remove
assets from jurisdiction
• Pl should undertake damages
Northcorp – the plaintiff does not have to show that the purpose
of the defendant’s intended disposition was to frustrate
judgement, sufficient to show that there was a real risk that they
would dispose assets and it would prevent recovery. appeal
against decision, for some of 12 million, owns land which has
come under sale, agreed to pay 1.6 million, assets likely to be
disposed of, satisfied proper basis to grant a Mareva order
Iraqi Ministry of Defence – Variation of Mareva order is allowed if
it is not inconsistent with the policy for issuing the Mareva order
in that particular jurisdiction. D in ongoing investigation, Pl
claimed damages, granted Mareva injunction, creditors
intervened and obtained leave to allow the D to pay them, court
lifted injunction because the purpose of Mareva order is not to
improve someone’s position. Should be allowed to pay your
normal everyday commercial debts
Hayden v Teplitzky – one party was trying to restrain other from
dissipating assets, wanted to vary order to pay debt to creditor,
court said no because if they had paid debts then there would be
no money left for plaintiff
A v C – can order discovery and interrogatories in aid of a
Mareva order, plaintiff needs to have a proprietary claim and they
need to be a beneficiary under the Mareva order
Chartered Bank – if D is likely to leave the jurisdiction on short
notice they can get a Mareva injunction, not English citizen but
cause of action falls within jurisdiction so can make orders
relating to this cause of action, irrelevant if not a citizen
defaulted, nobody paid anything, L thought was trying to remove
assets from Hong Kong, if no cause of action in HK can you have
a Mareva order in that jurisdiction, no they could not because
there is no jurisdiction to allow a service on the basis of an
application not based on a substantive cause of action in that
Barclay-Johnson v Yuill – claimed owed money, seeking
jurisdiction, injunction must be incidental to a substantive right not
continuation of Mareva injunction, real risk would remove money necessarily a cause of action, D subject to court’s jurisdiction
because was living on a yacht outside jurisdiction, granted
should be ordered in a foreign court if judgments of that court are
continuation of Mareva injunction, real risk of evasion. nationality enforceable in that jurisdiction (reciprocity)
is just another factor that needs to be taken into account
Fourie v Le Roux – applied for freezing order, after that breached
Rahman – Mareva injunction can be granted against anyone who another different freezing order and removed all assets to
is living within the jurisdiction even though no information about another jurisdiction, was it enough that it would likely occur again
them because real risk of removing assets if injunction not
against the plaintiff’s Mareva order, court held there was no
granted
jurisdiction because it was not an immediate cause of action, he
only had a hunch and was not intending on starting an action
Bank of NZ v Jones – an injunction will not be granted a person immediately, must come with clean hands, abusing remedy
who is not a party to the action, moved assets into joint bank
account, argued that the money was there entirely for living
Camdex International Ltd v Bank of Zambia – Bank of Kuwait
expenses, wanted to freeze that money as well, said wife was not deposited 80m with BoZ, BoK realised that wouldn’t return the
a party so not granted, order can cause more hardship than it is deposit, plaintiff granted Mareva order limited to assets within
aiming to prevent
Zambia, BoK tried to assign money to third party, BoZ had other
debtors, issue whether defendant could pick and choose
Z Ltd v A-Z and AA-LL – any third party who has notice of a
amongst debtors to which ones they wanted to pay back, court
freezing injunction will be guilty of contempt of court if they assist said although in ordinary situation they had to pay debt back,
in removal of assets, 3rd parties were banks so higher test
Zambian community would suffer hardship if they let go of the
money, purpose of Mareva relief is to prevent a defendant from
Riley McKay –
removing from the jurisdiction his assets or dissipating them. It is
not an aid to obtaining preference for repayment from an
CBS UK – Mareva relief may be combined with the delivery of
insolvent party.
chattels subject to restrictions, D must be evidence likely to
dispose assets, must not be assets that are not required for the Cardile – can grant Mareva order against non-party where those
running of the business
orders are necessary to facilitate the administration of justice but
it should not be granted lightly as it will impose a significant
Ballabil Holdings – transnational companies can be the subject of restriction on a defendant’s right to deal with his or her assets.
Mareva orders, jurisdiction should not be a bar to injunctions
Does not have to be a proprietary right, can be goodwill. Third
party controls assets for you then a Mareva order can be issued
NAB v Dessau – D were debt dodgers, that increases likelihood against a third party
of dissipation, can have worldwide jurisdiction
Pelechowski – NSW case, borrowed money but did not pay it
Babanaft – Mareva injunction can be granted post judgment.
back, Mareva order over property, got a second mortgage,
Panama company obtained judgment against Lebanese people appealed, majority held that district court does not have the
living in Switzerland, operated businesses in different jurisdictions power to grant a Mareva order
where it was difficult to obtain information, worldwide Mareva
order, full disclosure and oral examination as to assets. Babanaft
Anton Piller Orders
proviso – operation of Mareva order cannot be placed upon the
third party from utilising the funds in a manner that they normally • If woman home alone must have another woman present
would
• Has to be a reasonable time (likelihood of contacting
solicitor)
Patterson –prima facie case and risk of dispersal to defeat
• Detailed list of items they are taking
judgment but no set test and should be determined on a case-byo Defendant must have opportunity to inspect documents
case basis.
and get a copy of the list
• Can be a ban on speaking to other people for roving APO
Mercedes Benz – entered into contract with german citizen,
• Has to be someone there to represent the defendant
financed $20m for contract, guaranteed by Monaco corp, both
Injunctions to Enforce Negative Covenants
Lumley v Wagner – L owned theatre, had contract with opera
singer, had to perform for 3 months and not allowed to perform
anywhere else, W offered more money, wanted to take it, L
sought injunction to stop W performing at other theatre, court said
they would not force her to sing (positive covenant) but they said
they would enforce a negative covenant stopping her from
performing, court decided that W could not perform at any other
theatre but would not be forced to perform for L. The court cannot
compel someone to perform for personal services, where
personal services are sufficiently rare then damages are not
adequate, will enforce negative covenant but not positive
covenants.
Wolverhampton – agreement between companies, agreed to
construct railway and the other agreed to direct a certain amount
of traffic through the line, directed traffic on alternate ways,
sought an injunction, court considered whether negative or
positive, looked at substance not form, injunctive relief must be
negative in substance and language must be clear and precise,
duration of services for 999 years so originally refused but
overruled, if sufficiently negatively framed the court granted
injunction, inactivity will be performance
employer would retain the employee so no injunction would be
granted.
Metropolitan Electric Supply Company Ltd v Ginder – injunction
will be granted if negative stipulation is implied in positive
covenant, pl supplied electricity, sought to restrain them from
switching to another company, damages would not be an
appropriate remedy
Rely-a-Bell Burglar v Eisler – court will refuse injunction if it will
reduce a defendant to the position of remaining idle and leading
to starvation, limited injunction was granted to stop them from
becoming a shareholder and director of another company with
the same interests, courts can decide on any remedy that they
want to make it equitable
Wood v Corrigan – court will not grant an injunction to restrain the
delivery of future chattels because the contract cannot be
specifically enforced, damages would be a complete remedy,
payment of future goods have not been made, failed to establish
elements of injunction
Warner Brothers v Nelson – injunction can be granted to enforce
a negative covenant in a contract of service, film artist had
contract and said she wasn’t allowed to perform with anyone
else, entered contract with 3rd party, sought injunction and it was
Doherty v Allman – a lease agreement with covenant to repair,
sought an injunction to restrain him but this was refused because granted, clearly and concisely expressed, nature of services were
special and unique
it was positively framed not negatively.
COMPARE
Macro Productions v Pagola – court can grant injunction even if
Dalgety Wine v Rizzon – Lessee breached covenant in lease
agreement to maintain alcohol licence, courts have discretion to there is no proof of damages, covenant that would not perform for
enforce negative covenant but there was an already an act that anyone else, attempted to perform for someone else, failed to
show that any damage would flow from the breach of the
has jurisdiction over the area so they said they would not
restriction, injunction still granted
interfere in that area even though it was negatively framed
not stop the D from running their business the injunction will be
granted
Share Farming Agreements
Miotti v Belford – cannot grant injunction for share farming
agreements because it would amount to specific performance
unless it is so simple it would not require continual supervision of
the court or continual cooperation between the parties or
personal relationships
Lumley v Wagner doubted
Page One Records - The defendants were a music group with an
exclusive management and publishing contract. They wanted to
terminate the contract and the plaintiff sought an injunction. This
case differed from Lumley v Wagner because the plaintiff’s
obligation of personal confidence required trust and confidence,
which could not be enforced.
Warren v Mendy - A boxer signed an exclusive management
contract with the plaintiff. The defendant then sought to manage
the boxer. Injunctive relief was obtained stopping the defendant
from managing the boxer. On appeal the injunctions were
discharged because there was a relationship of trust and
confidence and the boxer had genuinely lost confidence in the
manager. The contract also had the effect of imposing a positive
covenant on the boxer.
Lumley v Wagner applied yet again
Hawthorn Football Club v Harding - A footballer agreed to play for
a team and not to play for any others. He then sought to breach
this. The plaintiff sought an injunction against him. The injunction
was granted to stop him from playing for any other teams, as it
did not have the effect of forcing him to play for the plaintiffs.!A
person’s services can be restrained if it does not have the result
of forcing them to do something.
Specific Performance
Warner Brothers v Ingolia – actress wanted to work for someone Elements:
else, breached covenant and sought injunction, Californian
• An agreement
company, can you restrain someone from performing in
• Breach or threatened breach of agreement by D
Australia? Can restrain someone where the contract was in a
o Contract not terminated
foreign jurisdiction because the breach occurred in the jurisdiction
• CL damages would be inadequate remedy
• No discretionary defence or denial disentitling relief
Atlas Steels (Australia) Pty Ltd v Atlas Steels Ltd – will not
Two senses of Specific Performance
enforce injunction where it would amount to a specific
Whitwood Chemical Company v Hardman – brought an action
Wolverhampton and Walsall Railway Company v London and
enforcement to employ the person as their agent, felt that if
restraining defendant from starting up business or having any
North-Western Railway Company – agreed to construct railway
contract with any other person, injunction would not be granted injunction was enforced only alternative would be to cease
direct a certain amount of traffic towards a certain terminal,
business altogether, so coercive that it would amount to specific and
because it is inconsistent with the wording of the agreement,
wanted
specific performance, 2 distinct forms of SP, executory
performance, worded negatively it was in substance a positive
agreement positive but only had one negative covenant, would
contract
(something remaining to be done) and executed contract
obligation
not enforce it where it would drive the person to starvation and
(the
deal
has been completed), two senses: proper sense and
compel specific performance, a positive stipulation does not imply COMPARE
relief
analogous
to specific performance
Ampol Petroleum Ltd v Mutton – D is buying petrol from plaintiff,
a negative stipulation for an injunction it must be negatively
Situations
where
court will NOT grant specific performance
covenant said that you shall no cease operating as a service
expressed in personal service contract
station or sublet the business without the approval of the P, tried Damages are an adequate remedy
Davis v Foreman – employer sought to fire employee, employee to sell and P sought injunction, test was whether it was possible Loan Investment Corporation of Australasia v Bonner – Sale of
to comply with stipulation by doing nothing, if the injunction will
land and a loan agreement, one party repudiated agreement and
sought to enforce the negative covenant not to fire, although
the other sought specific performance, normally any agreement
negative in form it was positive in substance and meant that the
Donnell v Bennett – contract for sale of fish had negative clause
to not sell to other manufacturer, sought to restrain action,
granted by the court, court can grant an injunction on a negative
covenant without considering whether specific performance has
to be granted, has to be a clear expressly made negative
stipulation