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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Equity - From: 1991 To: 1991

This page lists 8 cases, and was prepared on 21 May 2019.

 
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
1991

Murphy J, Kaye J, Brooking J
Commonwealth, Litigation Practice, Equity
(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking. Held: If it had power to award compensation it would do so. However, after an exhaustive review of authorities from three continents, the court unanimously concluded that the court had no such power; and that a person against whom an injunction is granted but later discharged is "without remedy" in the absence of a cross-undertaking.
Kaye J: "It is therefore clear from the authorities to which I have referred that the practice followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking as to damages has been based on the view that otherwise the defendant would be without remedy in the event of the order having been improperly made."
Murphy J: "Next, restitutio in integrum has been espoused as a principle by the appellants. The cases relied upon to support the assertion that it is just and equitable to award monetary compensation for any loss caused the appellants do not in my view go this far in terms. It must be conceded that it is an established principle that it is just and equitable to allow interest upon money ordered to be repaid to a defendant who has been wrongly ordered to pay a capital sum to a plaintiff" and
"The fallacy in the appellants' case appears to me to rest in the fact that they cannot point to a right entitling them in equity to monetary compensation. What the respondents have done is come to the court seeking payment of an alleged debt, and in the course of such action have sought interlocutory equitable relief in support of that claim. The court has ruled that the interlocutory equitable relief sought was wrongly granted, and have set it aside, but this did not constitute the breach or infringement of any recognisable right in equity which might have entitled the appellants/defendants to monetary compensation or might have obliged the respondents to put the appellants "in as good a position pecuniarily as that in which he was" (they were) "before the injury": Nocton v Lord Ashburton [1914] A.C. 932, at p.952." and
"Nowhere have the researches of counsel found a relevant precedent in which, in the absence of an undertaking, an award of monetary compensation has been made to compensate a defendant for loss occasioned [to] his property by the making of an erroneous order that has been subsequently set aside"
Brooking J: "With all due respect to W.S. Gilbert's Lord Chancellor, in practice the law is not always the true embodiment of everything that's excellent. Mistakes are made from time to time." and
"The first question is that of the limits of the principle expressed by Lord Cairns in Rodger's Case. For the passage cannot be read as asserting that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. The law being what it is, and judges being what they are, many wrong judgments and orders are given and made. These can be corrected on appeal. But there are and must be limits to how far the courts will go in putting matters right on appeal." and
"But while the cases show that the courts will often, by way of setting things right on appeal, go beyond the mere substitution of the right judgment or order for the wrong one, it is not the law that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. Any such unlimited principle is inconsistent with the law's recognition of the torts of malicious abuse of process and malicious institution of proceedings, with their uncertain, but certainly limited, scope: Metall und Rohstoff v Donaldson Lufkin & Jenrette [1989] 3 W.L.R. 563, at pp. 611-15. And any such unlimited principle would mean that an appellate court would be entitled or obliged to award compensation or damages whenever it set aside an erroneous judgment or order which had caused damage to the appellant which was not regarded for this purpose as too remote. Yet many final judgments or orders that may be set aside on appeal are apt to cause great damage to the unsuccessful party in circumstances where it is unthinkable that the appellate court should have power to award damages or compensation. An order winding up a corporation is about as drastic an order as one could imagine. Such an order will rarely be stayed pending an appeal, and great and irremediable damage may be done to the corporation by the order in the meantime. But I have never heard it suggested that if a winding up order is set aside on appeal the appellate court may award damages or compensation against the party who obtained it. At the trial of an action a final injunction to prevent the commission of a nuisance may put the defendant out of business. May the court of appeal not only set aside the injunction but also award damages for the destruction of the defendant's business? A judgment for possession of business premises may mean financial disaster for the defendant who claims that his lease has not been duly determined. If there is no stay and the defendant succeeds on appeal, is he to be awarded damages on the principle that the court must take care that "no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
1 Cites

1 Citers


 
Killick v Roberts [1991] 1 WLR 1146; [1991] 4 All ER 289
1991
CA

Landlord and Tenant, Equity
The landlord claimed that the tenancy had expired by effluxion of time. The tenant alleged that the tenancy was a protected tenancy and that, since no written notice had been served on him pursuant to Case 13, he was a statutory tenant entitled to the protection of the Rent Act 1977. The recorder had held that, although the landlord was not entitled to rely on Case 13, she was entitled to rescind the tenancy agreement by reason of the tenant's misrepresentation. Held: The tenant's appeal failed. Where a protected tenancy was rescinded while it was still subsisting, the tenant did not become a statutory tenant, because there was no longer any contractual tenancy from which it could spring. A tenancy agreement procured by a fraudulent misrepresentation by the tenant may be rescinded even after it has expired by effluxion of time.
Rent Act 1977 2
1 Citers


 
Re H deceased [1991] FLR 441
1991
CA
Peter Gibson J
Equity, Trusts
The Plaintiff had stabbed his wife to death when under the illusion, induced by a reaction to an anti-depressant drug, that she had just committed an act of infidelity. At his trial, a plea to guilty of manslaughter by reason of diminished responsibility was accepted. A hospital order was made and the trial judge expressed the view that "there was no responsibility left at all". Held: The forfeiture rule was not applied. The court made a comprehensive review of the authorities and asked: "Was Mr H guilty of deliberate, intentional and unlawful violence or threats of violence?" He answered the question in the negative holding that the offender was "not responsible for his acts which were not deliberate or intentional." In those "highly unusual circumstances" the Judge held that, on the Gray-v- Barr test, the forfeiture rule had no application.
1 Cites

1 Citers


 
Stannard v Fisons Pension Trust Limited [1991] Pensions Law Reports 225; [1992] IRLR 27
1991
CA
Staughton LJ, Dillon LJ, Ralph Gibson LJ
Trusts, Equity
Fisons had sold their fertiliser division to Norsk Hydro. Acting on advice of actuaries and thinking that the fund was in deficit, the trustees made a transfer to a new fund to provide for pensions of transferring employees in accordance with a method of calculation which placed upon the new employer the burden of carrying on employer contributions at the current rate. But at the time of the transfer the trustees were not informed that rises in the stock market meant that the fund was in surplus. If they had known, another method of calculation would have been used which would have resulted in a reduction of employer's contributions or the possibility of augmented benefits. Held: There should be a recalculation, because the trustees had failed to take into account a highly material factor. Trustees have a fiduciary duty to follow a correct procedure in the decision-making process. This duty lies at the heart of the Rule in Hastings-Bass, which is directed at ensuring for the protection of the beneficiaries under the trust that they are not prejudiced by any breach of such duty.
Dillon LJ: "I should add that I have no difficulty in reconciling the judgment in Kerr v. British Leyland (Staff)Trustees Ltd. with the decision of this court in Re Hastings-Bass [1975] Ch 25 to which we were also referred. What was material in Hastings-Bass was that in order to save estate duty the trustees wanted by way of advancement to create an immediate life interest in the funds in question. This they had effectively done. Had they appreciated that the trusts in remainder after the life interest which they also purported to appoint would be void for perpetuity, they would no doubt have appointed other, valid, trusts in remainder. But they would still have created the same life interest, and any difference in the trusts in remainder was immaterial to that."
1 Cites

1 Citers


 
Billson and Others v Residential Tenancies Ltd [1992] 1 All ER 141
11 Feb 1991
CA
Nicholls LJ
Landlord and Tenant, Equity
As to the exercise of relief in equity outside the limitation period: "This is not to say that courts of equity should now grant relief without any regard to the statutory provisions. Equity follows the law, but not slavishly nor always: see Cardozo C.J. in Graf v. Hope Building Corporation (1930) 254 N.Y. 1,9. On this we have the benefit of guidance elsewhere in the field of relief from forfeiture. Section 210 of the Common Law Procedure Act 1852, which is still in force, limited to six months after judgment the period within which a tenant could apply for relief in the non-payment of rent cases to which that statute applied, viz., where the rent was six months in arrears. Courts of equity have due regard to this statutory limitation in non-payment of rent cases where the statute does not apply: in cases of forfeiture by peaceable re-entry, and' in cases where possession has been taken under a court order where less than six months' rent was in arrears."
1 Citers



 
 Lipkin Gorman (a Firm) v Karpnale Ltd; HL 6-Jun-1991 - [1991] 2 AC 548; [1988] UKHL 12; [1991] 3 WLR 10

 
 Harries and Others v Church Commissioners for England and Another; ChD 25-Oct-1991 - Gazette, 11 November 1991; [1992] 1 WLR 1241; [1992] 2 All ER 300; [1991] 135 SJLB 180; Times, 30 October 1991; Independent, 29 October 1991
 
Canson Enterprises Ltd v Boughton and Co [1991] 3 SCR 534; 1991 CanLII 52 (SCC); (1991) 85 DLR (4th) 129; [1992] 1 WWR 245; 1 BCLR (2d) 1
21 Nov 1991

Lamer CJ and Wilson, La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ
Equity, Damages
Canlii Supreme Court of Canada - Canada - Damages -- Breach of fiduciary duty -- Solicitor preparing conveyance not advising purchasers of secret profit made on a flip -- On agreed facts, purchasers fully apprised of situation would not have entered the transaction -- Action arising because inability of other professionals found liable in tort for faulty construction of building on subject lands to pay damages -- Whether or not damages recoverable.
The claim was brought by developers of land against the lawyers who had acted for them in the purchase of the land. The lawyers acted in breach of their fiduciary duty by failing to disclose their knowledge that a third party was making a secret profit from the purchase. The development proved to be a failure as a result of the negligence of the engineers and contractors involved. The appellants sought to recover the loss incurred on the development from the lawyers, on the basis that they would not have proceeded with the purchase if they had known of the secret profit. Recognising that the loss would not be recoverable in an action founded on breach of contract, negligence or deceit, the appellants instead sought equitable compensation for breach of fiduciary duty, arguing that such compensation was unlimited by principles of causation, remoteness or intervening acts.
La Forest J (majority) distinguished between the breach of a trustee's obligation to hold the object of the trust, where "on breach the concern of equity is that it be restored . . or, if that cannot be done, to afford compensation for what the object would be worth", and on the other hand "a mere breach of duty", where "the concern of equity is to ascertain the loss resulting from the particular breach of duty." In the former situation the difference between restoration and damages was abundantly clear, but in the latter situation "the difference in practical result between compensation and damages is by no means as clear". He went on to observe in relation to claims of the latter kind: "The truth is that barring different policy considerations underlying one action or the other, I see no reason why the same basic claim, whether framed in terms of a common law action or an equitable remedy, should give rise to different levels of redress."
McLachlin J dissented as to the way the result was obtained but not as to the result. She rejected the argument that the starting point, when quantifying compensation for breach of fiduciary duty, should be an analogy with tort or contract. In her view, that approach overlooked the unique foundation and goals of equity. In negligence and contract the parties were taken to be independent and equal actors, concerned primarily with their own self-interest. Consequently, the law sought a balance between enforcing obligations by awarding compensation, and preserving optimum freedom for those involved in the relationship. The essence of a fiduciary relationship, by contrast, was that one party pledged herself to act in the best interests of the other. The freedom of the fiduciary was diminished by the nature of the obligation she had undertaken. The fiduciary relationship had trust, not self-interest, at its core.
She concluded: "In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie, the plaintiff's loss of opportunity. The plaintiff's actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which, on a common sense view of causation, were caused by the breach."
1 Citers

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