Introduction to Equity

Question 1

Origins of Equity

Answer 1

Court of Chancery in England prior to 1873
Developed as higher supplementary justice which comes in on discretionary basis to provide more just outcome when ordinary rules cannot provide this

Question 2

Origins of Trust

Answer 2

A ‘use’
Trust: property was transferred to someone to hold that land for the benefit of another. Use upon a use, became a trust

Equity enforced trust obligation

Question 3

Judicature Reforms

Answer 3

Tension between two systems (equity and law)

Judicature Acts fused the administration of Kings Bench and Chancery Courts, meaning judges could hear cases and use either common law or equitable rules as appropriate

NOW in AUS: Supreme Court Act 1970: s57, the Court shall administer concurrently all forms of law, including rules of equity

Question 4

Harris v Digital Pulse Pty Ltd

Answer 4

o Can a common law remedy by awarded in reference to an equitable claim? Is this fusion an appropriate development in the law or an example of a fusion fallacy?
o Process of borrowing from each side of the law is a continually developing process, has been done before. Equity not finalised with Judicature Act. (Mason P)

Question 5

Nature of Equity

Answer 5

Equity acts on conscience
Tanwar: whether exercising rights in unconscionable way

Conscience not equivalent to fairness – decide what is unconscionable according to elements of equitable doctrine

Equity uses different remedies which provide specific relief.

Different enforcement techniques: Equity acts in personam – acts on the person. If the unsuccessful defendant has a remedy ordered against them and refuses to comply = contempt of court and can be imprisoned

Question 6

Specific Performance

Answer 6

A decree of specific performance directs a party to a contract to perform his or her obligations under it according to its terms.

E.g. transfer of property. Easy to get specific performance of executory contract; court orders parties to complete final step of transfer of title

Question 7

Specific Performance Requirements

Answer 7

o Valid, enforceable contract
o Consideration
o Common law damages are inadequate
o No factor effects courts discretion to make the order – ready willing and able, personal service element, need for detailed supervisions, lack of mutuality, hardship.

What if not in writing etc? Equity provides doctrine that allows contract to be enforceable: part performance. Then, specific performance available if satisfied.

Question 8

Injunctions

Answer 8

An order, historically of an equitable nature, restraining the person to whom it is directed, from performing a specific act, or (exceptionally) requiring him to perform a specified act

Types:

(1) Final injunction given at end of full hearing
(2) Interlocutory and interim procedures: preserve status quo until full hearing, given on less evidence, often ex parte
(3) Quia timet injunctions (threatened/apprehended wrong)

Form of order?
o Prohibitory injunctions prevent the doing of an act
o Mandatory injunctions order an act to be done