Equity and Trusts Topic 1

History and Nature of Equity Equity is a difficult concept - does it have an objective nature? Maitland Equity: A Course of Lectures (1949) equity cannot be defined and only described historically.

The idea of equity and the equitable in relation to law Aristotle Nichomachean Ethics Book 5, chapter 10 (readings):

Are equity and justice the same thing? Is equity superior to justice? General rules and the special case Equity as a kind of justice.

Origins of equity in English and Australian law Chancellors and canon law - conscience - consolidation of equity - systematisation and precedents, textbooks.
Relation of law and equity pre-1875; Exclusive, auxiliary, concurrent jurisdictions.

Judicature Acts of 1873-5: reforming administration, not substantial law? Judicature Acts in Australian states; NSW has no Judicature Act until 1972 effects - 4 out of 7 members of the current HCA . . .

Some ethical ideas: Values - how equity is morally charged on a different level from law - the individualisation of justice (A Gleeson) - equity and subordination of the social to the inter-personal good. Ethical vocabulary - conscience and overarching principles. An inner morality of capitalism? - moral terrain of breach of faith, fairness and good faith (Finn) - an inquiry into the propriety of profit-making? (Weinrib) - the effect on modern commerce.

The technique of equity: See, e.g., Lincoln Hunt Australia v Willessee (1986) 4 NSWLR 457 [restraining a trespass doubtful application of law to looking at or taking photographs of a private business was defendant behaving unconscionably in the circumstances? is equitys power to act as a court of conscience now spent?]

Baburin v Baburin (No 2)

Family company widow prevailed on to sell shares to her sons for a low price sons work hard and company prospers widow stands by and receives incidental benefits 19 years later she sues to rescind the sale. Held sons had behaved unconscionably in sale, but widows delay made it unjust to let proceedings continue the discretionary criteria.

(Roscoe Pound, cited by McHugh) Cases in equity are decided, in ascending generality, by: Rules (dictating outcomes) Principles (higher order rules, not dictating outcomes) Conceptions (defining categories) Doctrines (systematically assembling rules and principles); and Standards (describing the limits of permissible conduct)

Distinctive ethical quality of equitable principles. Standards operate widely and flexibly Principles have direct application to the facts Arguing in equity is different from at law manipulating discretionary tests - is the result substantially fair? The significance of equitable interlocutory relief.