Aspects of specific performance

Specific performance while being but one of numerous equitable remedies is a broad and many sided equitable doctrine. The nature of this paper does not allow an exhaustive examination of specific performance. Instead one is seeking to peruse selected aspects of specific performance. Hence damages and a cross section of equitable discretionary defences to performance have been selected. Such discretionary defences form various loose classes and several defences have been selected from each class. For example under the class of "Traditional defences" the paper considers (a) Mutuality and (b) Impossibility; whereas other traditional defences such as Laches and Acquiescence are left unconsidered. Moreover, "fairness", "hardship" and "clean hands" are investigated from the category of purely equitable defences. Further a hybrid class of defence is explored, which while being relevant from an equitable point of view, also may vitiate the entire contract at common law. Such class incorporates inter alia Mistake, Misrepresentation and Illegality. Finally performance with regard to testamentary dispositions and the place of third parties in relation to performance are viewed as a special class. In researching the aspects of specific performance including the history of the remedy, the fact that this area of equity was undergoing a restructuring became evident. Was performance specific performance altering to keep apace with changing commercial and social attitudes - equity being based squarely on morals and conscience both parameters being measured in terms of the accepted standards of society as a whole? Do the recent spate of statutes which prima facia attempt to codify the common-law of contract enlarge the discretion to refuse specific performance? This paper looks towards a re-emergence of the concept of conscience, the basis of all matters equitable, a concept that has been swathed in case law for at least a century. Hence Fry's major work on specific performance, is considered sparingly given its publication date of 1926. Further Spry's Third Edition of "Equitable Remedies" (1984) came to hand at a time which allowed only for brief reference to the same in footnotes. It should be kept in mind when considering the New Zealand case law on specific performance as opposed to, say the English, that the New Zealand High Court is asked to be both the strict common lawyer and yet still be able to have regard to the length of the chancellors foot - the latter measurement holding sway in instances of conflict. It is ventured that this dual task causes principles, particularly in the damages field, to become confused. The writer has attempted accurately to state the law as to the selected aspects of Specific Performance as at January 1985