Powercor Australia Ltd v Pacific Power [1999] V.S.C. 110

The other option was to seek an order that PP perform its side of the bargain. PCA was entitled to sue for specific performance. The remedy of specific performance is a creature of equity and it evolved to overcome deficiencies in the remedies available at common law. Writing in his first edition in 1858 Edward Fry in his treatise on The Specific Performance of Contracts wrote at p 1 – ‘The specific performance of contracts is an ancient branch of the equitable jurisdiction of the Court of Chancery, arising out of the incapacity of the courts of common law to enforce the actual performance of the contract: for these courts, they recognising the obligation of the parties to a contract to perform their respective parts, enforce its obligation, not specifically, but only by way of damages.’ As a general rule specific performance is not available if damages that can be awarded give the victim full compensation, but it is an essential condition of that rule that the award will put the victim in a position as good as he would have been in if the agreement had been performed. It follows that in cases involving payment of money specific performance is not usually granted. But again that is only a general rule and if money is to be paid pursuant to a contract periodically, common sense and justice demands that the contract be specifically performed to avoid numerous proceedings being brought to recover payment. See Beswick v Beswick (1967) Ch 538 at 560-61. The reasoning of Danckwerts LJ was expressly approved in the House of Lords – see [1968] A.C. at 97. The principle was stated by Lord Upjohn in the Beswick case when he said – ‘Equity is to do true justice to enforce the true contract that the parties have made and to prevent the trouble and expense of a multiplicity of actions. This has been well settled for over a century.’ No doubt Mr Downes QC had these principles in mind when he accepts that specific performance is appropriate in respect of future obligations. What Mr Downes QC is seeking to do is to divide up the remedies available to PCA between common law damages for the past and the equitable remedy of specific performance for the future. PCA has elected to claim specific performance. It is entitled to do so. It has the carriage of the proceeding and is entitled to pursue any remedy that the law permits it. Whether or not it is open to divide remedies in the way submitted by PP is a moot point. I suspect the issue is not one of jurisdiction because this court has unlimited jurisdiction but a question of whether the court should divide up the remedy in the circumstances. If this is correct, in the end it is a question of doing practical justice between the parties. The fact is that PCA has the legal right to have its contracts fully performed. That right it seeks in the present proceeding. This means the contracts in their entirety and not portion thereof. PCA referred to Turner v Bladin (1951) 82 C.L.R. 463. This is an example of specific performance being decreed in respect of past and future obligations. The case does not address the issue whether a court should divide up the remedy in the way sought by PP. See also the observations of Lord Pearce in Beswick v Beswick, supra, at p 92 (B-C).