SP will not be granted where P has an adequate remedy at common law.
Specific performance operates in personam, so as long as D is within the Court’s jurisdiction SP can be ordered against him
Court has discretion to refuse to issue an order for specific performance, where P does not come to court with “clean hands”, as in
In contracts for the sale of land there must be a valid contract made for consideration. As Geoghegan J said in Supermacs Ireland Ltd v Katesan (Naas) Ltd (2000)
Where the agreement is a verbal one, P must establish not only a conclude agreement but also the existence of a note or memorandum
The note or memorandum must contain the essential or material terms
A deposit does not have to have been paid in order for there to be an enforceable agreement unless parties agree otherwise as per
No note or memo which contains any term such as “subject to contract” or “without prejudice” satisfies statutory requirement
If P takes prejudicial, conclusive & irrevocable steps in the carrying out of a oral contract, those actions may be perceived as
“it would be a fraud on the part of the person who had entered into an agreement by parol …to turn around and say it did not legally exist”
What were the facts in Lowry v Reid [1927]?
What did Moore LCJ hold in Lowry v Reid [1927]
Necessary conditions to establish PP set out in this case concerning an alleged contract between joint owners of fishery to limit annual licenses issued.
First condition for PP propounded by Barron J in Mackie v Wilde [1998]:
Second condition for PP propounded by Barron J in Mackie v Wilde [1998]:
Third condition for PP propounded by Barron J in Mackie v Wilde [1998]:
Fourth condition for PP propounded by Barron J in Mackie v Wilde [1998]:
The principles propounded by Barron J in Mackie v Wilde (1998) were applied by Laffoy J in
It is generally accepted that the payment of a deposit will not amount to part performance, confirmed by the decision in
Authority that payment of money can constitute an act of PP
Taking possession of land & carrying out improvements to it can constitute acts of PP i.e. entering onto land & demolishing buildings as in
Traditionally, courts have been unwilling to order SP of contract
Equity’s dislike of granting specific performance of contracts requiring supervision is evident from
However, here SP was granted here as Court deduced P was itching to perform contract to install new lift thus supervision unlikely required
Obligation must be sufficiently defined to enable the defendant to comply with the order
What were the facts of Posner v Scott-Lewis [1987]?
Considerations set out by Mervyn Davies J in Posner v Scott-Lewis [1987]
Here P landlord sought SP of covenant in lease requiring D to keep its supermarket premises open for retail trade during usual business hours. HoL refused to grant SP
On similar facts Costello P declined to follow Co-op Insurance v Argyll Stores in Wanze Properties (Ireland) Ltd v Five Star Supermarket (1997). Here…
In order to obtain a decree of specific performance, the contract has to be mutually enforceable highlighted by O’Connor LJ in
Generally speaking, the Court will not grant SP to P if it could not grant it to D. Classic example where suitor is minor as in
Time for ascertaining a want of mutuality exists at the time of hearing of claim; not when contract was entered into
Equity will not intervene where a party to contract for sale of land rescind sdue to other party’s failure to comply with essential condition as to time
Substantial delay which would prejudice D is a bar to SP i.e. six years as in
Correspondence continued for six months leaving D in no doubt that the matter was to be proceeded with so delay was no defence
A court will not make an order of SP where it will not be possible for a party to comply with the order which the court proposes to make.
Impossibility arising from the purchaser’s impecuniosity may provide a reason for the court to refuse SP as per Aranbel Ltd v Darcy (2010) as followed in
“A court will not enforce the specific performance of a contract the result of which would be to impose great hardship on either of the parties to it”.
Here McCarthy J held that barring exceptional circumstances, subsequent hardship arising after date of contract not relevant consideration
However, where a serious injustice would otherwise result, supervening hardship may in an exceptional case provide a defence as in
An innocent misrepresentation may be a defence if there is evidence of fundamental unfairness in the transaction
Mistake may operate as a defence to an action of SP but not where P is aware of the mistake & seeks to take advantage of it as in
Where the mistake is solely that of D and P has no way contributed to it, the courts are unlikely to refuse SP as per
If enforcement of an agreement would be contrary to public policy, the courts are unwilling to grant specific performance as in
SP of a contract with an underlying illegal purpose will not be granted…
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