Written by The case of Paolucci v Makedyn Pty Ltd [2021]NSWCA 215 demonstrates the nature of equitable remedies. In this case a women transferred a large parcel of agricultural land to a developer company to build a house and a ‘Duplex’ on the land. The ‘Duplex’ was defined under the agreement to be a dwelling to be divided into two three-bedroom residences. Under the agreements, the company would subdivide the land and transfer the part of the subdivided land upon which the house and ‘Duplex’ would be built, at which time the development was scheduled to be completed.
Subsequently, a dispute arose as to the proper dimensions of the buildings to be built on the land. The woman commenced proceedings in the Equity Division of the Supreme Court, seeking an order for specific performance that the company convey the newly created lots to her as vacant lots, without the promised dwellings, as well as Lord Cairns’ Act damages reflecting the diminished value of the reconveyed land pursuant to s 68 of the Supreme Court Act 1970 (NSW) as well as a declaration as to the proper dimensions of the ‘Duplex.’
The Court clarified that the equitable remedy of specific performance is only available to plaintiffs in cases where damages would be an inadequate remedy. Moreover, Lord Cairns’ Act damages can only be awarded if the court has power to grant an injunction or order specific performance. Therefore, as the women had not shown that damages were an inadequate remedy, and the defendant in this case was ready, willing, and able to perform their part of the agreement and had acted reasonably in not building the ‘Duplex’ until the dispute as to its dimensions was resolved.