The modern distinction between law and equity

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This article is a topic within the subject Introducing Law & Justice.


Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 278-294 (Chapter 11).


This section deals with how the equity courts developed after they arose in English law. In particular it deals with the modern development and evolution of equity and its intertwining with common law in Australia.

The Modern Distinction between Law and Equity

[1] Since equity was formed, it has undergone continual development to reach the point at which it works with the common law today.

  • In 1870-72, the English Judicature Act reformed the law so that both law and equity could be done in the same court - NSW was the latest to adopt this in 1972 with the Supreme Court Act 1970 (NSW).
    • Before this, there were procedural differences and trial by jury only operated in common law jurisdictions.
  • Equity has two main domains:
    • Firstly, the domain where it has exclusive jurisdiction with trust and fiduciary relationships, and
    • Secondly, the domain where it works to supplement the common law.
  • While equity was determined ‘according to conscience’, it is now moulded by rules rather than the ‘length of the Chancellor’s foot.’
  • The maxims of equity include:
    • equity follows the law,
    • where there is equal equity the law will prevail,
    • where the equities are equal, the first in time prevails,
    • he who seeks equity must do equity and
    • he who comes to equity must come with clean hands.
  • The issue is when equity and common law can be administered in the same court, at what point do they remain separate bodies of doctrine?
    • The orthodox view, by Ashburner, is that they are distinct and do not mingle their waters.
  • There is also the idea of a ‘fusion fallacy’ which is where methods or remedies available in one path are utilised in the other part, or modification along the same lines.
    • It is called a 'fallacy' because many [2] have said that it is wrong to conclude that the rules of common law and equity have been amalgamated, it is only their administration which has been unified.

A leading case on the relationship between equity and law is Harris v Digital Pulse Pty Ltd [3]


Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook pp 278 - 294
  2. see R P Meagher, W M C Gummow and J R Lehane, Equity: doctrines and remedies, 3rd edn, Butterworths, Sydney, 1992, p47
  3. (2003) 56 NSWLR 298
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