Pennington v Crampton (2004)
The defendant (N) applied for an order that the claimant (H) should specifically perform his obligations contained in a schedule to a Tomlin order.
H was the holder of one share in Crampton Bros (Coopers) Ltd (the company). Four hundred shares in the company, which were registered in the name of the late Ada Crampton (C), had been transferred by her by way of gift to her nephew N prior to her death. H successfully claimed such transfer was in breach of pre-emption rights in favour of existing members of the company, as contained in its articles of association. C had made specific bequests of her remaining shares to N and PW. H issued proceedings for damages resulting from the breach of the pre-emption provisions, and added N as a defendant. Those proceedings were compromised by a Tomlin order by which H agreed to buy 100 of the 400 shares and procure the agreement of the other company members to the share purchase by a certain date failing which default provisions contained in the order would apply.
H would be ordered to specifically perform his obligations contained in the schedule to the order. On the facts, the agreement of the other company members to the share sale had not been procured by the relevant date. H had not "duly complied" with the requirements in the order and had failed to fulfil the conditions subject to which he had the right to purchase the shares. Damages were not an adequate remedy and specific performance would therefore be ordered.
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