LAW 2502 Lecture Notes - Lecture 1: Supreme Court Of Judicature Act 1873, Judicature Acts, Supreme Court Act
23 May 2018
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ORIGINAL NATURE OF EQUITY
‘Equity’ = body of cases, maxims, doctrines, rules,
principles and remedies developed and administered in
the English Court of Chancery before 1873, and which
remains a distinct source of legal authority in Au
courts today
Mainly impacts contract, property, succession law
(can impact most other areas)
HISTORICAL DEVELOPMENT
Beginnings- 1066 to 1400
❖ Originated after invasion of England and receipt of
common law
❖ Crown was petitioned about need for discretionary
relief against inflexible, rule bound, rigorous and
deficient common law which did not consider
moral right/ good conscience and resulted in harsh,
unjust and unconscionable outcomes
➢ Petitions initially addressed to king, used own
conscience, sense or right/ wrong to decide
cases
❖ Power to exercise King’s conscience later given to
Chancellor alone
❖ Heavily based on church law (Chancellor not
legally trained, but was high up in church)
Early period 1400 to 1800
❖ Fundamental principles of equitable justice
developed- equity supplements common law when
it is inadequate to justly deal with petitioner’s case
❖ Principles and remedies justified upon relief from
common law
❖ Adjudication used: fluid, contextual, pragmatic
conscience-based decision making
➢ Eradicated offences againast the conscience
when the common law cannot
➢ Conscience= initially based on church law, in
which chancellors were trained, ie notions of
morality
➢ When legal trained chancellor was appointed-
conscience based on legal notions
▪ if A puts forward a position in
circumstances where B is meant to rely on
it, and B relied on it to their detriment,
then A cannot resile from the position
without making good the detriment
Dillwyn v Llewellyn
▪ Bad conscience = dishonesty;
▪ uneasy conscience = taking advantage of
weak;
▪ guilty conscience = denial of assumption
▪ conscience = good faith
❖ Earl of Oxford’s case (1615): conflict between law
and equity- equity prevails
❖ 1616 crisis- threats to equity- bill introduced to
overturn decision and abolish it- Sir Francil Bacon
LC become chancellor- to protect equity, made it
inferior to common law
➢ Eg through Maxim- ‘equity follows the law’
equity secondary to common law
▪ accords primary importance to common
law damages, equitable remedies only
operate when CL inadequate
Classical period of equity 1800-
❖ Chancellors strived to develop authoritative,
positive and coherent rules, fixed in their
application and founded in precedent to give
certainty and security
➢ Introduction of doctrines and institutions- limit
on conscience-based decision making, no
longer informal, pragmatic, contextual
▪ Atiyah ‘first and most striking legal
development of the 19th century’
❖ Only Equitable principles that survived were those
which were acceptable/ useful to common law
❖ Substantive doctrines developed
➢ Trusts (e & r) survived, emphasis shifted
away from the assumption created by the
trustee to the intention of the settlor Re
Williams
➢ Fiduciary relations survived, stood well with
contract and tort Nocton v Lord Ashburton.
Anyone who made gains in breach of FD must
hold them on trust fpr the victim –
institutionalisation of c-trust began
➢ Equitable fraud- survived, on tightened
principles. Mitigated defective exercise of
intent, and mirrored common law principles
(undue influence mirrors duress)
➢ Equitable rights in assets, survived, seen as
parallel to legal property rights (propertied -
NPB v Ainsworth). Conscience often not
required as justification Corin v Patton
Fusion under the Judicature Act 1875
1 Fusion aimed to remedy problems with having two
separate court systems through Supreme Court of
Judicature Act 1873 (Supreme Court Act 1935
(SA) ss 20-28)
➢ Adoption of Chancery’s procedures
(summons, discovery, interrogation, set-off)
and specific remedies (subject to inadequacy
of damages)
➢ P no longer required to commence separate
action to gain access to equitable principles
➢ Administrative and procedural in character
only
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Equity" = body of cases, maxims, doctrines, rules, principles and remedies developed and administered in the english court of chancery before 1873, and which remains a distinct source of legal authority in au courts today. Mainly impacts contract, property, succession law (can impact most other areas) Earl of oxford"s case (1615): conflict between law and equity- equity prevails. 1616 crisis- threats to equity- bill introduced to overturn decision and abolish it- sir francil bacon. Lc become chancellor- to protect equity, made it inferior to common law. Eg through maxim- equity follows the law" equity secondary to common law accords primary importance to common law damages, equitable remedies only operate when cl inadequate. Originated after invasion of england and receipt of. Chancellors strived to develop authoritative, common law. Crown was petitioned about need for discretionary relief against inflexible, rule bound, rigorous and deficient common law which did not consider moral right/ good conscience and resulted in harsh, unjust and unconscionable outcomes.
