Introduction

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This article is a topic within the subject Equity and Trusts.

Contents

Required Reading

M.W. Bryan & V.J. Vann, Equity and Trusts in Australia (Cambridge University Press, 2012), pp. Chapter 1. Chapter 7 (except 7.12-14) is good revision of what you should already know from Contracts.

What is equity?

[1]Equity refers to the principles applied by judges where the law is deficient for some reason, such as its universality.

Equity supplements or corrects the common law but does not replace it and cannot exist independently.

Institutional equity

[2]The essence of institutional equity is the creation of a special court, distinct from courts administering the general law, having the power to modify or correct the general law.

  • In England, this was the Court of Chancery until the enactment of mid-nineteenth century judicature legislation, which formed in response to the inflexibility of the writ system.
  • In Australia, several courts – including the High Court, Supreme Court of the States and Territories and numerous inferior courts – have inherited this jurisdiction.
  • Equitable principles are flexible and respond to changes in social and economic conditions.

Competition between common law and equity

[3]The Earl of Oxford’s Case[4] held that equity may overrule the common law in order to rectify the conscience of the wrongdoer. In cases of conflict between the common law and equity, equity prevails.

  • Equity was said to be a “gloss” on the common law, modifying it where enforcement of legal rights was harsh or oppressive, but not claiming to be a parallel system of law.

Reform and the judicature legislation

[5]Before the enactment of the judicature legislation, claimants might have to bring more than one set of proceedings in order to obtain the relief they wanted. The Judicature Acts 1873-6 enacted reforms which improved administration:

  • Divisions in courts were changed to reflect the conveniences of legal specialisation rather than the nature of relief available.
  • A unified code of procedure applied to common law and equitable claims.
  • The supremacy of equity was enshrined.

The legislation was never intended to fuse or integrate legal and equitable rights (described as the “fusion fallacy”).

The reception of equity in Australia

[6]Equity was inherited with British law.

The judicature legislation in Australia

[7]South Australia and Queensland have experimented with substantive fusion of the common law and equity. In New South Wales, separate administration of common law and equity continued until 1972.

The place of equity in the modern law

[8]The subject-matter of equity can only be deduced by reference to legal history, rather than being deduced from general propositions. The existence of a separate body of equitable principles means that much of Australian private law exhibits a dual character.

A map of equity

Equitable remedies

[9]Equitable rights and remedies are extricably linked because equitable claims are “remedy driven”, in the sense that attempts are sometimes made to characterise defendants as equitable wrongdoers for the purpose of obtaining a distinctive equitable remedy.


End

This is the end of this topic. Click here to go back to the main subject page for Equity & Trusts.

References

Textbook refers to M.W. Bryan & V.J. Vann, Equity and Trusts in Australia (Cambridge University Press, 2012).

  1. Textbook, pp 3-4.
  2. Textbook, p 4.
  3. Textbook, pp 6-8.
  4. (1615) 1 Ch Rep 1.
  5. Textbook, pp 8-10.
  6. Textbook, pp 10-11.
  7. Textbook, pp 11-13.
  8. Textbook, p 13.
  9. Textbook, pp 13-15.
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