Injunctions are a remedy provided by the discretion of courts. They are to either prevent someone from doing something or to make someone do something. A mandatory injunction is a positive injunction and falls into the latter category. This means that the courts require the person to fix something or restore something to its natural state. For example, if a person has breached their contract, a mandatory injunction would require that person to revert the situation to a time before the breach of contract. This also applies to situations where someone is refusing to fulfil their obligations stipulated in a contract. This so that a person can be told to fulfil their obligation in case a contract is breached.
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What are the different types?
Mandatory injunctions fall into two separate categories. The first is a restorative injunction and the second is an enforcing injunctions.
Restorative
This type of mandatory injunction forces the defendant to fix the damage committed by them. For example, a person will be required to remove information posted online if it is confidential information. This is as they would have breached their confidentiality agreement. This was seen in an actual case: X v Twitter Inc [2017] NSWSC 1300. In this case, the defendant (Twitter) was forced to remove confidential information about the plaintiff and was also prevented from tweeting any additional confidential information. Twitter needed to fix the repercussions of the tweets on their platform by removing them which is an example of a restorative injunction.
Another example of a restorative mandatory injunction was seen in Selth v Australiasian Barrister Chambers Pty Ltd (No 3) [2017] FCA 649. This case involved a barrister and the company he owned. Both the barrister and his company used and registered domain names belonging to the New South Wales Bar Association and the Australian Bar Association. The barrister was in breach of the Australian Consumer Law as a result of the court’s findings. The barrister and his company transferred these domain names to the bar associations as per the court’s requirement. This demonstrates the positive act required which in this case was the transfer of domain names.
Enforcing
An enforcing injunction is where the defendant must fulfill their obligations in a contract. The concept of specific performance is similar to this. This type of injunction means that courts typically use the same principles of specific performance when deciding to grant it. In fact, it is usually unlikely that a mandatory injunction will be granted if specific performance is not available.
Elements
Before deciding whether a mandatory injunction is a suitable remedy, the court will have a few factors to consider. These include:
- There must be a cause for action
- Damages must be an inadequate remedy
- Hardship considerations for both defendant and plaintiff
- Defendant must understand what injunction expects them to do
These factors are usually similar if not the same as the elements required for prohibitory injunctions.
Concluding thoughts
Overall, mandatory injunctions are a type of remedy provided at the discretion of the judiciary system. The two types of mandatory injunctions are restorative and enforcing. Restorative aims to guide the defendant to restoring their actions. Enforcing is making a defendant fulfil their contractual obligations. If you would like to seek a mandatory injunction or need help, hire a contract lawyer today.
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