Remedies Impacting Rights: How the Availability of Specific Performance Impacts Assessment of Common Law Damages

Dr David Winterton, The University of Sydney Law School

Time and date: Wednesday 5 July, 2023, 1-2pm (Brisbane Time)

Location: Law School Board Room (W353), Level 3, Forgan Smith Building, The University of Queensland, St Lucia
And via Zoom: https://uqz.zoom.us/j/83818986495

Abstract

This paper considers the question of whether (and if so, how) a promisee’s choice whether or not to try to enforce a contract by seeking an order for specific performance can bear upon the damages he or she obtains for the contract’s breach. The paper argues that it does and that it should, by affecting what the promisee has to prove to establish the relevant claim. Two distinct situations are considered. The first is where the promissee seeks specific performance of the contract and damages for consequential loss as alternative remedies - and the remedy of specific performance is ultimately refused. Here, it is argued here that, provided the promisee’s decision to seek specific performance was reasonable in the circumstances, normal mitigation of loss principles imply that his or her damages may be different from those he or she would get if specific performance had never been sought. The second situation arises where a promisee elects not to seek specific performance in circumstances in which such an order is presumptively available. Here, the (novel) claim is again that the election can again impact upon what the promisee must prove to recover substantial damages, thereby affecting their assessment.

About the Speaker

David is currently a Senior Lecturer at Sydney Law School. His particular research interests lie in the law of contract, restitution and commercial remedies. He has a BSc and LLB from UNSW and a BCL (Dist), MPhil and DPhil from the University of Oxford. His doctoral dissertation, which formed the basis for his book, Money Awards in Contract Law, examined the award of damages for breach of contract, proposing a novel understanding of the area which challenges the law’s conventional interpretation. Prior to his arrival, David was a Lecturer at UNSW, a stipendiary lecturer at St Anne’s College, Oxford and was in practice in both Sydney (commercial litigation) and New York (Bankruptcy & Restructuring). He is admitted as a legal practitioner in NSW (2006) and as an Attorney in New York (2012

Biography and Publications

https://www.sydney.edu.au/law/about/our-people/academic-staff/david-winterton.html

About Australian Centre for Private Law Events

The mission of the Australian Centre for Private Law is to foster the development and understanding of the private law through advanced theoretical, doctrinal, empirical and historical research, and the dissemination of that research through education and professional outreach. By supporting the work of its Fellows, the ACPL seeks to promote research in all areas of private law and to establish itself as a research centre of national and international importance. The core initiatives of ACPL are:

Research: To advance a deeper understanding of the structure, principles and policies of the private law through advanced theoretical, comparative, and empirical analysis.

Education: To promote, facilitate and disseminate the results of that research for the benefit of Australia’s social and economic fabric.

Professional Outreach: To engage the judiciary and members of the legal profession in discussion about the values, goals and methods of private law and the respective roles of the judiciary, the legal profession and the academy in the interpretation and reform of private law.

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