Bars to relief

Abstract

Introduction Plaintiffs may have an ‘equity for relief’ but this does not mean that the plaintiff holds a right to relief. All equitable relief is discretionary, and judicial discretion is exercised in a principled manner. The court considers the surrounding circumstances of the case, weighing factors from both the plaintiff's and defendant's perspectives in fashioning an appropriate remedy. Principles informing the exercise of equitable discretion include the doctrines of laches and acquiescence, unclean hands and hardship to the defendant. Additionally, a court exercising equitable jurisdiction will not make an order that is futile or impossible to supervise. The impact of the court's order on third parties will also be considered. These factors apply generally to all equitable remedies. The availability of specific performance is additionally controlled by particular discretionary grounds: want of mutuality and the plaintiff's willingness and readiness to perform her own obligations (see chapter 3 and textbook at [3.3]–[3.5]). Bars to relief are sometimes referred to as equitable defences but properly understood they are not true defences. Since there is no right to relief, any equity held by the plaintiff is coextensive with the extent to which equitable discretion will bend in her favour. However, there are true equitable defences which are considered elsewhere in this book: for example, estoppel can operate as a defence (see chapter 7). Questions for consideration 1. When an application is made for an equitable remedy, what factors ‘tend towards the justice or injustice of granting the remedy that is sought’ ( Bridgewater v Leahy (1998) 194 CLR 457, 494)? 2. Is the court's discretion a rule-based discretion or is it an unbounded discretion? 3. Are the conduct and conscience of both the plaintiff and defendant relevant to the court's deliberations? Laches Equity denies relief for stale demands. Where an equitable cause of action is brought ( Orr v Ford (1989) 167 CLR 316 at 340) and there is delay in bringing or prosecuting the claim, it may be open to the defendant to raise the delay and the impact of this delay in resisting a remedy. Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Background Land owned by Kemp was thought to contain oil.