New Zealand Law/Equity/Equitable Defences

General

Neylons v Dickens

Facts

Sale & purchase agreement.

Defendants refused to settle.

Plaintiff's solicitor threatened action for specific performance and damages but action only instituted for specific performance.

Five years later, plaintiffs sued for damages.

Held

1. Purchasers' claim barred by the doctrine of laches

(a) In a suit for specific performance, damages may be awarded in addition to or in substitution for specific performance.

(b) Discretion to award damages is discretionary

(c) Purchasers should have given notice that they were reserving right to claim damages

(d) Vendors were prejudiced by the passage of time in meeting claims for damages and in proving their case

2. In contracts for sale of land, every remedy, in respect of the same cause of action, must be claimed in one action.

Grant v NZMC

Facts

Grants leased property from NZMC, didn’t pay rent.

NZMC sought summary judgment.

Grants counterclaimed collateral contract– NZMC failed to refer business

Held

A defendant may set-off a crossclaim which so affects the plaintiff’s claim that it would be unjust to allow the plaintiff to have judgment without considering the crossclaim.

The two claims must interdependent such that judgment cannot be fairly given in respect of one without regard to the other.

Attorney-General for England & Wales v R

Facts

R, an SAS soldier, signed agreement not to publish any information regarding service in the Special Forces.

R wrote book and sent it to Ministry of Defence for vetting.

Ministry sought injunction.

Held

Undue influence requires no will of own.

For a bargain to be unconscionable, there must be:

(a) serious disadvantage;

(b) exploitation of the disadvantage amounting to actual or equitable fraud;

(c) some procedural impropriety;

(d) substantial inadequacy of consideration:

R was not suffering from serious disadvantage. He was simply 'an intelligent soldier facing an unpalatable choice'. Moreover, the Ministry of Defence provided consideration by not sending R back to his unit.

However, specific performance is discretionary.

Since (1) the pressure on R was coercive - particularly, denying him an opportunity to obtain legal advice and (2) if the situation had been reversed, R could not have obtained specific performance, equity would not allow the injunction.

The Crown was, however, entitled to an account of any profits if the book was published.

Injunctions

Shaw v Narain

Facts

Husband gave marital property to spiritual commune leader

In marital proceedings, wife obtained Mareva injunction.

But it was established that the land was not part of the land financed by sale of marital property

Held

1. To justify a Mareva injunction

(a) there must be a good arguable case that the person seeking the injunction would succeed.;

(b) there must be a real risk that the property would be moved out of the jurisdiction or dissipate

(c) the interest of justice must be weighed.

2. Shaw had an arguable case for relief:

(a) there was no doubt if the injunction was discharged, the funds would be removed from the jurisdiction;

(b) if the funds were frozen, the defendant would be deprived of the use of their money for some time with little chance of compensation

(c) on the other hand, the funds might represent the only source from which wife could recover matrimonial property (with her husband’s lack of co-operation)

(d) on balance, the injunction should not be discharged – on the condition that substantive proceedings were to be advanced with diligence.