Equitable Damages and Common Law Damages: A Comparative Study

Running head: EQUITY AND TRUST
EQUITY AND TRUST
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EQUITY AND TRUST1
Introduction
In Harris v Digital Pulse Pty Ltd1 it was held by the Supreme Court for Appeal of the
New South Wales that the law of the New South Wales has no power for the awarding of
exemplary damages or other ‘common law’ damages for the breaches in the equitable duties.
However, as per the 1858 Chancery Amendment Act 2 it is permitted to the equity for the
awarding of the damages under the common law in substitution of a specific performance or
an injunction. Therefore it is seen that although both the specific performance and the
injunction are equitable remedies, however the court only has the power to be awarding
damages in the common law in regard to equitable remedies, but not for the breach of the
equitable duties of principles. The question of the power of an equity to make an award for
exemplary damages is needed to be considered through its source and the purpose of
remedies available in equity. In a broader way, it can be said that the choice lies between the
adherence towards the traditional approach of equity for refusing award of compensation for
any damages and the flexible approach for shaping remedies which would relieve the
conscience of the parties. In this is a detailed discussion has been made about the power of
the court of equity for awarding damages that are exemplary for breach of the fiduciary
duties. This essay can further be seen as discussing the difference between damages for
equity and damages under the common law. For the discussion various cases have been
referred to as for proving the point of difference between the two. In furtherance the power of
the court to add or substitute any damage are also being discussed.
1 Harris v Digital Pulse Pty Ltd [2003] 56 NSWLR 298
2 Chancery Amendment Act 1858, s.2

EQUITY AND TRUST2
Equitable Damage
The Chancery Amendment Act 1858 was going to be conferring on the Chancery court
in England, the discretionary powers to be awarding damages for the specific performance or
injunctions. Before the Act was passed, the power to be awarding damages was held by the
courts of common law. This was seen as the antecedent of the combination of administration
of equity and law in a single judicature Court. Main objective of this act was for enabling the
court to be doing total justice among the parties. Although the original Act was repealed but
the rules of the common law and the equity under the provisions of this Act was conferred in
various Territory and State Supreme Court Acts of Australia. Section 68 of the Supreme
Court Act 19703 of the New South Wales provides that where the court can be having the
power for granting of injunction against any breach of a covenant or a contract or an
agreement or against commission of any kind of wrongful acts for ordering specific
performance of any covenant, agreement or contract, the court would have the power to be
awarding damages today enjoy your parties weather in addition to or in substitution of any
specific performance or injunction.
An award of damages under the common law can be described as the award that
Court grants to a plaintiff proving their case. Damages are exclusive remedies awarded by the
common law courts and the monetary awards made by a court of law towards the plaintiff for
the injuries suffered by them as a result of a breach of a tort or a contract. A common law
damage is the pecuniary compensation awarded by the law towards an individual for injury
sustained by the act or conduct of another person.
Common law damages can be categorised into three parts: general damage, special
damage and nominal damage. General damages are the damages presumed by the law to be a
direct, probable or natural consequence for a contract breach or duty of care breach in tort.
3 Supreme Court Act 1970, s.68