Pub Date : 2019-10-02DOI: 10.1017/9781108628648.012
{"title":"Participants in a breach of fiduciary obligation","authors":"","doi":"10.1017/9781108628648.012","DOIUrl":"https://doi.org/10.1017/9781108628648.012","url":null,"abstract":"","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"98 10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128003991","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-02DOI: 10.1017/9781108628648.026
{"title":"Index","authors":"","doi":"10.1017/9781108628648.026","DOIUrl":"https://doi.org/10.1017/9781108628648.026","url":null,"abstract":"","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127991982","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Resulting trusts","authors":"M. Ramjohn","doi":"10.4324/9781315413853-7","DOIUrl":"https://doi.org/10.4324/9781315413853-7","url":null,"abstract":"","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133234987","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-25DOI: 10.4324/9781843146919-33
M. L. Ahmadu, R. Hughes
{"title":"Termination and variation of trusts","authors":"M. L. Ahmadu, R. Hughes","doi":"10.4324/9781843146919-33","DOIUrl":"https://doi.org/10.4324/9781843146919-33","url":null,"abstract":"","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124823228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-01DOI: 10.1017/9781108628648.008
M. Bryan, Simone Degeling, M. Donald, Vicki Vann
Introduction Much of equitable doctrine concerning contract law is now covered in contract law or property law subjects. Our coverage will therefore be brief. Equitable intervention into contract law can take one of four forms: (a) Equity enforces some promises which are unenforceable at common law. It may also modify or even prevent the enforcement of promises which would otherwise be enforceable at common law. These results are principally achieved by the doctrine of estoppel. (b) Equity sets aside contracts where the consent of a party to the contract has been impaired or vitiated by factors such as mistake, misrepresentation, undue influence or unconscionability. (c) Equity intervenes where the contract is substantively unfair, for example where it contains a penalty clause or a clause requiring forfeiture of property. (d) Equity provides remedies unavailable at common law (or, in the case of rescission, available on restrictive conditions) which: • enforce contracts (for example, specific performance or injunctions); • set aside contracts where consent has been vitiated (rescission); or • correct contracts where they do not reflect the mutual intention of the parties (rectification). The focus of this chapter will be on the first three examples of equitable intervention. Equitable remedies are discussed in Part B. Estoppel and promise enforcement Estoppels were originally developed as rules of evidence and some applications of estoppel (such as estoppel by deed, and judgment estoppel) remain evidential in character. The equitable estoppels considered in this chapter have outgrown their evidential origins. In all cases one party is prevented from enforcing a legal right, or from departing from an assumption relied upon by the other party, where it would be unconscionable to do so. This chapter focuses on two types of estoppel: common law estoppel and equitable or promissory estoppel. Proprietary estoppel is discussed in chapter 8. Common law estoppel This estoppel prevents a person who, by a representation of fact, has induced another to alter her position, from denying the fact as represented. Common law estoppel is not a cause of action. It alters the basis on which other causes of action may be brought or defended. It is confined to representations of existing fact, not to representations as to future intention. In Jorden v Money the plaintiff owed money to a solicitor.
{"title":"Equity in contract law","authors":"M. Bryan, Simone Degeling, M. Donald, Vicki Vann","doi":"10.1017/9781108628648.008","DOIUrl":"https://doi.org/10.1017/9781108628648.008","url":null,"abstract":"Introduction Much of equitable doctrine concerning contract law is now covered in contract law or property law subjects. Our coverage will therefore be brief. Equitable intervention into contract law can take one of four forms: (a) Equity enforces some promises which are unenforceable at common law. It may also modify or even prevent the enforcement of promises which would otherwise be enforceable at common law. These results are principally achieved by the doctrine of estoppel. (b) Equity sets aside contracts where the consent of a party to the contract has been impaired or vitiated by factors such as mistake, misrepresentation, undue influence or unconscionability. (c) Equity intervenes where the contract is substantively unfair, for example where it contains a penalty clause or a clause requiring forfeiture of property. (d) Equity provides remedies unavailable at common law (or, in the case of rescission, available on restrictive conditions) which: • enforce contracts (for example, specific performance or injunctions); • set aside contracts where consent has been vitiated (rescission); or • correct contracts where they do not reflect the mutual intention of the parties (rectification). The focus of this chapter will be on the first three examples of equitable intervention. Equitable remedies are discussed in Part B. Estoppel and promise enforcement Estoppels were originally developed as rules of evidence and some applications of estoppel (such as estoppel by deed, and judgment estoppel) remain evidential in character. The equitable estoppels considered in this chapter have outgrown their evidential origins. In all cases one party is prevented from enforcing a legal right, or from departing from an assumption relied upon by the other party, where it would be unconscionable to do so. This chapter focuses on two types of estoppel: common law estoppel and equitable or promissory estoppel. Proprietary estoppel is discussed in chapter 8. Common law estoppel This estoppel prevents a person who, by a representation of fact, has induced another to alter her position, from denying the fact as represented. Common law estoppel is not a cause of action. It alters the basis on which other causes of action may be brought or defended. It is confined to representations of existing fact, not to representations as to future intention. In Jorden v Money the plaintiff owed money to a solicitor.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133664122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-09-01DOI: 10.1017/9781316758540.003
M. Bryan, Vicki Vann, Susan Thomas
Introduction Remedies evolve from the procedures courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, and the jury decided those questions. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies such as juries cannot supervise the performance of contracts, ensure compliance with injunctions or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life. Because current equitable practice emerged from the Chancellor's delivery of individual justice, based on the merits of the case and the circumstances of the particular parties before it, equitable remedies are always discretionary. They are not immediately granted once a plaintiff proves her claim (as is the case with contract and tort), but may perhaps be limited or denied altogether in response to a range of factors relevant to the particular claim. It is a feature of equitable remedies that the court's discretion is exercised after consideration of the positions of both parties before it; sometimes the effect of the remedy on other parties, including the wider community, is considered too. The array of remedies available in equity looks bewildering at first sight, but it becomes obvious in most cases that only one or two remedies will provide the kind of relief the plaintiff is looking for. At common law the plaintiff is limited to damages as a remedy; the plaintiff's question is ‘how much money am I entitled to?’. In equity, however, a wide array of remedies are available; so the plaintiff's question becomes ‘what remedy will put me in the position I would like to be in?’.
{"title":"An introduction to equitable remedies","authors":"M. Bryan, Vicki Vann, Susan Thomas","doi":"10.1017/9781316758540.003","DOIUrl":"https://doi.org/10.1017/9781316758540.003","url":null,"abstract":"Introduction Remedies evolve from the procedures courts apply. Common law courts historically divided their decision-making functions between judge and jury; the judge defined the questions for the jury to answer, and the jury decided those questions. This system is still generally regarded as an acceptable method of determining criminal liability; however, randomly selected ad hoc bodies such as juries cannot supervise the performance of contracts, ensure compliance with injunctions or take complex accounts. Judges, assisted by court officers, are better equipped to order these kinds of remedies, all of which require the cooperation, however reluctant, of the defendant. Equitable remedies grew out of the practice of chancellors, sitting without a jury but assisted by clerks and masters, exercising continuing supervision of matters that were sufficiently complex to require more than the parties having a ‘day in court’. One example is the very old case of Hewett v Hewett where the court had to determine which timber on a property the plaintiff would be allowed to cut down. This matter had to be decided from time to time, for the rest of his life. Because current equitable practice emerged from the Chancellor's delivery of individual justice, based on the merits of the case and the circumstances of the particular parties before it, equitable remedies are always discretionary. They are not immediately granted once a plaintiff proves her claim (as is the case with contract and tort), but may perhaps be limited or denied altogether in response to a range of factors relevant to the particular claim. It is a feature of equitable remedies that the court's discretion is exercised after consideration of the positions of both parties before it; sometimes the effect of the remedy on other parties, including the wider community, is considered too. The array of remedies available in equity looks bewildering at first sight, but it becomes obvious in most cases that only one or two remedies will provide the kind of relief the plaintiff is looking for. At common law the plaintiff is limited to damages as a remedy; the plaintiff's question is ‘how much money am I entitled to?’. In equity, however, a wide array of remedies are available; so the plaintiff's question becomes ‘what remedy will put me in the position I would like to be in?’.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121736206","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-07-01DOI: 10.1017/CBO9781139194013.020
M. Bryan, Vicki Vann
Introduction All dispositions that are intended to transfer property, such as contracts, gifts, trusts and wills must be clearly defined if they are to be legally effective. In the event of a dispute a court may have to ascertain whether the property owner intended to dispose of her property and, if so, on what terms. In some cases the court may have to determine the identity, or identities, of the recipients of the property, or the quantum of property transferred. A recipient of property will need to know if the transfer constitutes a gift, a loan or a trust. All trusts, whether or not they also have to satisfy writing requirements, must be sufficiently certain in order to be enforceable. The certainty requirements for trusts are more demanding than for contracts because trusts can affect the rights of parties who did not agree to, or participate in, its creation. These parties may include the beneficiaries and third parties who do business with the trustee. An express trust must be certain in three distinct respects, sometimes called the ‘three certainties’. They are: (a) Certainty of intention. The settlor must have intended to create a trust of her property, as opposed to making a gift of it or lending it to another. (b) Certainty of subject-matter. The subject-matter of the trust must be specified with reasonable certainty. (c) Certainty of objects. The beneficiaries of the trust must be sufficiently identifiable. Charitable trusts are not required to satisfy the requirement of certainty of objects. They are discussed in chapter 17. Resulting and constructive trusts, which are not created by a settlor but are judicially imposed, will not satisfy the requirement of certainty of intention although the other two certainty requirements are still applicable to them. The certainty requirements are related to each other in the sense that failure to satisfy one of the certainties may cast doubt on whether one of the other requirements has been met. For example, if the subject-matter of a trust is uncertain it may well also be the case that the settlor did not truly intend to make the recipient of her property a trustee. Certainty of intention The settlor must have intended to create a trust of her property, as opposed to making a gift or a loan.
{"title":"Certainty requirements in the law of trusts","authors":"M. Bryan, Vicki Vann","doi":"10.1017/CBO9781139194013.020","DOIUrl":"https://doi.org/10.1017/CBO9781139194013.020","url":null,"abstract":"Introduction All dispositions that are intended to transfer property, such as contracts, gifts, trusts and wills must be clearly defined if they are to be legally effective. In the event of a dispute a court may have to ascertain whether the property owner intended to dispose of her property and, if so, on what terms. In some cases the court may have to determine the identity, or identities, of the recipients of the property, or the quantum of property transferred. A recipient of property will need to know if the transfer constitutes a gift, a loan or a trust. All trusts, whether or not they also have to satisfy writing requirements, must be sufficiently certain in order to be enforceable. The certainty requirements for trusts are more demanding than for contracts because trusts can affect the rights of parties who did not agree to, or participate in, its creation. These parties may include the beneficiaries and third parties who do business with the trustee. An express trust must be certain in three distinct respects, sometimes called the ‘three certainties’. They are: (a) Certainty of intention. The settlor must have intended to create a trust of her property, as opposed to making a gift of it or lending it to another. (b) Certainty of subject-matter. The subject-matter of the trust must be specified with reasonable certainty. (c) Certainty of objects. The beneficiaries of the trust must be sufficiently identifiable. Charitable trusts are not required to satisfy the requirement of certainty of objects. They are discussed in chapter 17. Resulting and constructive trusts, which are not created by a settlor but are judicially imposed, will not satisfy the requirement of certainty of intention although the other two certainty requirements are still applicable to them. The certainty requirements are related to each other in the sense that failure to satisfy one of the certainties may cast doubt on whether one of the other requirements has been met. For example, if the subject-matter of a trust is uncertain it may well also be the case that the settlor did not truly intend to make the recipient of her property a trustee. Certainty of intention The settlor must have intended to create a trust of her property, as opposed to making a gift or a loan.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114576474","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-07-01DOI: 10.1017/CBO9781139194013.012
M. Bryan, Vicki Vann, Susan Thomas
Introduction We saw in Part B that equity developed an armoury of personal remedies, such as specific performance and injunctions, directed at the person of the defendant. Their principal function is to enforce personal rights, such as performance of a contract. However, over time equity proved willing to award personal relief almost routinely, not only against owners of property but also against third parties who had received the property. This regular award of equitable personal relief was eventually perceived as having created a proprietary interest in favour of the party entitled to the relief. For example, if A signs a contract to purchase land from B, but B refuses to complete the contract, equity will grant the remedy of specific performance against B, and B will have to transfer the land to A. This happened so routinely that eventually A was treated in equity as if he held a property interest in the land once the contract was signed. Similarly, the regular awards of personal relief against trustees in breach of trust eventually gave rise to a proprietary interest in the beneficiary. All equitable property rights are sourced in a personal obligation enforced in equity. The availability of an equitable remedy does not necessarily mean that the interest protected by the remedy constitutes property. For example, equity grants injunctions and other relief to prevent the unauthorised use of confidential information. But confidential information is not recognised as a species of equitable property. Information is only protected against misuse by parties who act in breach of an equitable obligation of confidence. A person who has confidential information has only a personal right to protection in equity. Equitable property, like common law property, must be of a kind that is recognised as property in law.
{"title":"Equitable proprietary interests","authors":"M. Bryan, Vicki Vann, Susan Thomas","doi":"10.1017/CBO9781139194013.012","DOIUrl":"https://doi.org/10.1017/CBO9781139194013.012","url":null,"abstract":"Introduction We saw in Part B that equity developed an armoury of personal remedies, such\u0000 as specific performance and injunctions, directed at the person of the\u0000 defendant. Their principal function is to enforce personal rights, such as performance of a contract. However, over time equity proved\u0000 willing to award personal relief almost routinely, not only against owners\u0000 of property but also against third parties who had received the property.\u0000 This regular award of equitable personal relief was eventually perceived as\u0000 having created a proprietary interest in favour of the party entitled to the\u0000 relief. For example, if A signs a contract to purchase land from B, but B\u0000 refuses to complete the contract, equity will grant the remedy of specific\u0000 performance against B, and B will have to transfer the land to A. This\u0000 happened so routinely that eventually A was treated in equity as if he held\u0000 a property interest in the land once the contract was signed. Similarly, the\u0000 regular awards of personal relief against trustees in breach of trust\u0000 eventually gave rise to a proprietary interest in the beneficiary. All\u0000 equitable property rights are sourced in a personal obligation enforced in\u0000 equity. The availability of an equitable remedy does not necessarily mean that the\u0000 interest protected by the remedy constitutes property. For example, equity\u0000 grants injunctions and other relief to prevent the unauthorised use of\u0000 confidential information. But confidential information is not recognised as\u0000 a species of equitable property. Information is only protected against\u0000 misuse by parties who act in breach of an equitable obligation of\u0000 confidence. A person who has confidential information has only a personal\u0000 right to protection in equity. Equitable property, like common law property,\u0000 must be of a kind that is recognised as property in law.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116890767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-07-01DOI: 10.1017/CBO9781107445499.007
M. Bryan, Simone Degeling, M. Donald, Vicki Vann
Introduction Plaintiffs may have an ‘equity for relief’ but this does not mean that the plaintiff holds a right to relief. All equitable relief is discretionary, and judicial discretion is exercised in a principled manner. The court considers the surrounding circumstances of the case, weighing factors from both the plaintiff's and defendant's perspectives in fashioning an appropriate remedy. Principles informing the exercise of equitable discretion include the doctrines of laches and acquiescence, unclean hands and hardship to the defendant. Additionally, a court exercising equitable jurisdiction will not make an order that is futile or impossible to supervise. The impact of the court's order on third parties will also be considered. These factors apply generally to all equitable remedies. The availability of specific performance is additionally controlled by particular discretionary grounds: want of mutuality and the plaintiff's willingness and readiness to perform her own obligations (see chapter 3 and textbook at [3.3]–[3.5]). Bars to relief are sometimes referred to as equitable defences but properly understood they are not true defences. Since there is no right to relief, any equity held by the plaintiff is coextensive with the extent to which equitable discretion will bend in her favour. However, there are true equitable defences which are considered elsewhere in this book: for example, estoppel can operate as a defence (see chapter 7). Questions for consideration 1. When an application is made for an equitable remedy, what factors ‘tend towards the justice or injustice of granting the remedy that is sought’ ( Bridgewater v Leahy (1998) 194 CLR 457, 494)? 2. Is the court's discretion a rule-based discretion or is it an unbounded discretion? 3. Are the conduct and conscience of both the plaintiff and defendant relevant to the court's deliberations? Laches Equity denies relief for stale demands. Where an equitable cause of action is brought ( Orr v Ford (1989) 167 CLR 316 at 340) and there is delay in bringing or prosecuting the claim, it may be open to the defendant to raise the delay and the impact of this delay in resisting a remedy. Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Background Land owned by Kemp was thought to contain oil.
原告可能拥有“救济衡平法”，但这并不意味着原告拥有救济权利。所有衡平法上的救济都是自由裁量权，司法自由裁量权的行使是有原则的。法院考虑案件的周围情况，从原告和被告的角度权衡各种因素，以形成适当的补救办法。指导公平裁量权行使的原则包括懈怠和默许、不洁手和被告人的困难等原则。此外，行使衡平法管辖权的法院不会作出无效或无法监督的命令。法院的命令对第三方的影响也将被考虑。这些因素一般适用于所有衡平法救济。具体履行的可获得性还受到特定的自由裁量理由的控制:缺乏相互关系以及原告履行自己义务的意愿和准备(见第3章和教科书[3.3]-[3.5])。救济限制有时被称为衡平法抗辩，但正确理解它们并不是真正的抗辩。由于没有获得救济的权利，原告所持有的任何衡平法衡平法裁量权将在多大程度上向原告倾斜。然而，真正的衡平法抗辩在本书的其他地方被考虑:例如，禁止反悔可以作为一种抗辩(见第7章)。当申请衡平法救济时，哪些因素“倾向于给予所寻求的救济的公正或不公正”(Bridgewater v Leahy (1998) 194 CLR 457, 494)?2. 法院的自由裁量权是基于规则的自由裁量权还是不受限制的自由裁量权?3.原告和被告的行为和良心是否与法庭的审议有关?Laches Equity否认对陈腐需求的救济。如果提出了衡平法因由(Orr v Ford (1989) 167 CLR 316 at 340)，并且在提出或起诉索赔时存在延迟，被告可以提出延迟以及这种延迟对抵制救济的影响。林赛石油公司诉赫德(1874)背景肯普拥有的土地被认为含有石油。
{"title":"Bars to relief","authors":"M. Bryan, Simone Degeling, M. Donald, Vicki Vann","doi":"10.1017/CBO9781107445499.007","DOIUrl":"https://doi.org/10.1017/CBO9781107445499.007","url":null,"abstract":"Introduction Plaintiffs may have an ‘equity for relief’ but this does not mean that the plaintiff holds a right to relief. All equitable relief is discretionary, and judicial discretion is exercised in a principled manner. The court considers the surrounding circumstances of the case, weighing factors from both the plaintiff's and defendant's perspectives in fashioning an appropriate remedy. Principles informing the exercise of equitable discretion include the doctrines of laches and acquiescence, unclean hands and hardship to the defendant. Additionally, a court exercising equitable jurisdiction will not make an order that is futile or impossible to supervise. The impact of the court's order on third parties will also be considered. These factors apply generally to all equitable remedies. The availability of specific performance is additionally controlled by particular discretionary grounds: want of mutuality and the plaintiff's willingness and readiness to perform her own obligations (see chapter 3 and textbook at [3.3]–[3.5]). Bars to relief are sometimes referred to as equitable defences but properly understood they are not true defences. Since there is no right to relief, any equity held by the plaintiff is coextensive with the extent to which equitable discretion will bend in her favour. However, there are true equitable defences which are considered elsewhere in this book: for example, estoppel can operate as a defence (see chapter 7). Questions for consideration 1. When an application is made for an equitable remedy, what factors ‘tend towards the justice or injustice of granting the remedy that is sought’ ( Bridgewater v Leahy (1998) 194 CLR 457, 494)? 2. Is the court's discretion a rule-based discretion or is it an unbounded discretion? 3. Are the conduct and conscience of both the plaintiff and defendant relevant to the court's deliberations? Laches Equity denies relief for stale demands. Where an equitable cause of action is brought ( Orr v Ford (1989) 167 CLR 316 at 340) and there is delay in bringing or prosecuting the claim, it may be open to the defendant to raise the delay and the impact of this delay in resisting a remedy. Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 Background Land owned by Kemp was thought to contain oil.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"349 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120880935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-07-01DOI: 10.1017/CBO9781139194013.003
M. Bryan, Vicki Vann, Susan Thomas
What is equity? The word ‘equity’ is one of the most ambiguous in the law. Its most obvious meaning is fairness and justice. Many would argue that equity is the overriding goal of all law. How could the law ever justify un fair or in equitable outcomes? But a moment's thought will show that applying, without more, the criterion of ‘fairness’ to solve all legal problems is open to serious objections. Decisions will inevitably reflect the subjective beliefs and values of the adjudicator as to what is fair. In a pluralist democracy disputes about what is fair or equitable are settled by elected legislators, not by unelected judges, except where legislation has explicitly authorised judges to determine cases by reference to considerations of fairness. Judges do not assess what is equitable without reference to some standard or benchmark. Secondly, equity sometimes refers to the principles applied by judges where the law is deficient for some reason. Aristotle is the first recorded writer to define ‘equity’ in these terms. In Nicomachean Ethics , Aristotle contrasted law, which was said to be ‘universal’ in its application, with equity which was seen as ‘a correction of law where it was defective owing to its universality’. We might nowadays query the assumption that legal rules are invariably of universal application. Moreover, the preferable response in a democratic society to a legal rule that cannot do justice in an individual case is to invite the legislature to reform the law. But Aristotle anticipated the lawyer's idea of equity in two respects. First, equity corrects, or supplements, the law but does not replace it. The fact that equity modifies the application of the law in specific instances does not impair the legitimacy of the law in those cases where there is no need of equity. Secondly, some equitable doctrines can be explained in terms of the dilemma of ‘universality’ in the law: a soundly based legal rule of general application can on occasions be exploited for improper purposes. For example, where the law requires some contracts to be in writing equity can modify the writing requirement where its application would cause injustice.
{"title":"An overview of equity","authors":"M. Bryan, Vicki Vann, Susan Thomas","doi":"10.1017/CBO9781139194013.003","DOIUrl":"https://doi.org/10.1017/CBO9781139194013.003","url":null,"abstract":"What is equity? The word ‘equity’ is one of the most ambiguous in the law. Its\u0000 most obvious meaning is fairness and justice. Many would argue that equity\u0000 is the overriding goal of all law. How could the law ever justify\u0000 un fair or in equitable outcomes? But a\u0000 moment's thought will show that applying, without more, the criterion of\u0000 ‘fairness’ to solve all legal problems is open to serious\u0000 objections. Decisions will inevitably reflect the subjective beliefs and\u0000 values of the adjudicator as to what is fair. In a pluralist democracy\u0000 disputes about what is fair or equitable are settled by elected legislators,\u0000 not by unelected judges, except where legislation has explicitly authorised\u0000 judges to determine cases by reference to considerations of fairness. Judges\u0000 do not assess what is equitable without reference to some standard or\u0000 benchmark. Secondly, equity sometimes refers to the principles applied by judges where\u0000 the law is deficient for some reason. Aristotle is the first recorded writer\u0000 to define ‘equity’ in these terms. In Nicomachean\u0000 Ethics , Aristotle contrasted law, which was said to be\u0000 ‘universal’ in its application, with equity which was seen as\u0000 ‘a correction of law where it was defective owing to its\u0000 universality’. We might nowadays query the assumption that legal\u0000 rules are invariably of universal application. Moreover, the preferable\u0000 response in a democratic society to a legal rule that cannot do justice in\u0000 an individual case is to invite the legislature to reform the law. But\u0000 Aristotle anticipated the lawyer's idea of equity in two respects. First,\u0000 equity corrects, or supplements, the law but does not replace it. The fact\u0000 that equity modifies the application of the law in specific instances does\u0000 not impair the legitimacy of the law in those cases where there is no need\u0000 of equity. Secondly, some equitable doctrines can be explained in terms of\u0000 the dilemma of ‘universality’ in the law: a soundly based\u0000 legal rule of general application can on occasions be exploited for improper\u0000 purposes. For example, where the law requires some contracts to be in\u0000 writing equity can modify the writing requirement where its application\u0000 would cause injustice.","PeriodicalId":193827,"journal":{"name":"A Sourcebook on Equity and Trusts in Australia","volume":"1985 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125696866","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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