Equity and Trust Reception of Equity PDF

7 Aug 2024 EQUITY AND TRUST Reception of Equity 1 2 Last week MAIN RULE SCR: No 2 of 1992 PNGLR 336 Maintain the power of legislation as the chief an overriding source of law EXCEPTIONS IN P...

7 Aug 2024 EQUITY AND TRUST Reception of Equity 1 2 Last week MAIN RULE SCR: No 2 of 1992 PNGLR 336 Maintain the power of legislation as the chief an overriding source of law EXCEPTIONS IN PNG Constitution: Section 158 (2) – “paramountcy of justice” in the application of law Section 41 under which the court may declare a lawful act or conduct unlawful because its consequences would be harsh or oppressive Sections 59 and 60 which require the court to pay particular attention to developing a system of principles of natural justice as part of the underlying law Section 155(4) which gives the courts power to make orders as are necessary to do justice in a particular case 3 1  7 Aug 2024 Adoption and adaptation of Equity Remember: only when there is no underlying law! If there is a law that covers the same issue, we use the law. Underlying Law Act, 2000 a. Question of law – not fact b. When common law and customary law is the same, common law can be applied Exceptions: when in conflict with the Constitution Case: Magiten v Beggie PNGLR 1 4 LAW: When customary law and equity clash S2(1) Customs Recognition Act Ch 19 Raise the question of custom during pleading Remember: only when there is no underlying law! 5 Custom and repugnancy Exceptions: when in conflict with the Constitution Repugnancy = inconsistency or incompatibility of ideas or statements Cases: Magiten v Beggie PNGLR 1 Marriage for female widows Kaigo v Kurond PNGLR 34 Ownership of land through war Kupil v PNG PNGLR 350 Killing someone because they didn’t pay compensation 6 2  7 Aug 2024 Summary What do we know so far? Equity is a collection of principles (12) Equity is not written down as a law Equity is still a formal legal tool The remedies of equity are behavioural sanctions Common Law is repealed by Equity Equity is repealed by Customary Law exception: The Constitution 7 When equity supplements customary law EXAMPLES TO BE REVIEWED: Prescription Doctrine Lineage 8 Prescription Doctrine A method of acquiring a nonpossessory interest in land through the long, continuous use of the land. International Law: sovereignty transfer of land National scale: expropriation, Ancestral history and landmarks Private Property: ease of way 9 3  7 Aug 2024 Examples of ease of way 10 Public easement 11 12 4  7 Aug 2024 Lineage Nimp v Rumants PNGLR 96 The sale of the land was impeachable as it was the sale of land without consent from clan members. Explains customary ownership of land: representatives of each family group can be seen as trustees; joint property can be sold if all agree to do so. 13 NEXT The Maxims of Equity (ch 7) 14 The Maxims of Equity 1-6/12 1 Equity sees that as done what ought to be done 2 Equity will not suffer a wrong to be without a remedy 3 Equity is equality 4 One who seeks equity must do equity 5 Equity looks to intent rather than form 6 Equity imputes an intent to fulfil an obligation 15 5  7 Aug 2024 The Maxims of Equity 7-12/12 7 Equity follows the law 8 Where equities are equal, the law will prevail 9 Between equal equities the first in order of time shall prevail 10 Equity will not allow a statute to be used as a cloak for fraud 11 Equity acts in personam or persons 12 He who comes into equity must come with clean hands 16 17 6