Week 2.2.pdf

16 Jul 2024 EQUITY AND TRUST History and Nature of Equity 1 HISTORY AND NATURE OF EQUITY Aristotle (334-324 BC) Ethics “best possible result” Hegel (1821) Philosophy of Ri...

16 Jul 2024 EQUITY AND TRUST History and Nature of Equity 1 HISTORY AND NATURE OF EQUITY Aristotle (334-324 BC) Ethics “best possible result” Hegel (1821) Philosophy of Rights “literal interpretation versus what is right” Prof Dworkin (1986) Law’s Empire “the integrity of the law” 2 The early history of equity “Conscience” Courts of Chancery; Lord Chancellor Originally a state department Procedural justice Earl of Oxford case (1615) Ch Rep 1;21 ER485 Common law = legal rules Court of Chancery = conscience of the individual defendant 3 1  16 Jul 2024 Earl of Oxford case (1615) Ch Rep 1;21 ER485 “to correct men’s conscience for frauds, breaches of trust, wrongs and oppressions of what nature soever they be” And “to soften or to mollify the extremity of the law” Lord Ellesmere (1615) 4 Essence of Equity: How do we create the perfect system which applies equally to all without overlooking the needs of particular individuals? 5 Application of Equity into PNG Law Sch 2.2 PNG Constitution – the Underlying Law Adopted the principles and rules of equity that applied in England immediately BEFORE Independence Day (16 Sept 1975) Mt Kare Holdings v Akipe PNGLR 60 – revision includes an amending legislation Has to be consistent with “the Melanesian way” 6 2  16 Jul 2024 History Provisions of Oxford (1258) Statute of Westminister 11 (1285) If a person experienced problems with the procedure OR if the law did not provide for a remedy (or corruption or the power of wealth of the opposing party) he could complain to the King. The King was represented by the Lord Chancellor Became the Court of Chancery – administered a system of justice called EQUITY – A COURT OF CONSCIENCE 7 Two Separate Courts Court of Common Law Criminal law Civil law Court of Chancery Court of conscience Two completely separate jurisdictions Ran parallel to each other, but they could be awaiting decision from each other 8 The Judicature Acts 1873 & 1875 Physical merge of Common Law and Equity Intellectual separation remains Not the same as “mischief principle”; more than when a literal application of Law undermines the underlying purpose Larger scope; legal remedies Trusts Injunctions Charges Rescissions etc 9 3  16 Jul 2024 The fusion issue Merging the two Courts (Common Law and Equity) Still two different intellectual exercises Equity wins if there is a conflict between common law and equity “though they run in the same channel, they run side by side and do not mingle their waters” W. Ashburner (Principles of Equity, 1902, p23) 10 CONSCIENCE The idea/concept of “conscience” Identifying and judging the conscience of the defendant Acceptable v unacceptable conduct Formed as a reaction to the outside Holding the defendant up to an objective standard of good conscience Objective v subjective What the defendant SHOULD have done 11 Flexibility v certainty Allows for societal change Formal rules exist Trusts for management of commercial or private property Common law v equity 21st century social justice 12 4  16 Jul 2024 Fundamental principles of Equity Common law (financial) Equity (behaviour) Examples of claims Examples of claims Breach of contract Breach of trust Negligence Tracing property Claiming property on Fraud insolvency Examples of remedies Examples of remedies Damages Compensation Common Law tracing Equitable tracing Money had and received Injunction Rectification etc 13 The history of Trust The use (and the use of uses) Knights Templar 11th century Crusades Nobles was given land to use by the king (had to pay tax in return) When away, they gave other the use of that land 14 The Statutes of Uses 1535 Statutes of Uses 1535 (a law introduced by the king) Later repealed, but the concepts remain the same The lords wanted to keep things as they were, but were given the following benefits in the new statute: The advantage of many against one (the king) Safeguard against losing the land Option of passing it on to an heir Henry VIII abolishes uses A few words (pp 6-8) Feofee = trustee Primogeniture = first born male inherits all 15 5  16 Jul 2024 Note on “cestui que use” The cestui que use is the person for whose benefit the trust is created. The cestui que trust is the person entitled to an equitable, as opposed to a legal, estate. Thus, if land is granted to the use of A in trust for B, A is cestui que trust, and B trustee, or use. Cestui que use = the beneficiary (the Lord) Cestui que trust = the King 16 Tyrell’s case (1557) 73 ER 336 Solidified the law on property Changed the wording of the law Examples of Trusts today - for property held by people with legal disability - to make it easier to pass property to one heir - to enable an heir to provide for his family - Provide pensions - lower tax - Pension Investment funds 17 Nelson Mandela “It is in your hands, to make a better world for all who live in it.” Interview BBC, 1999 18 6  16 Jul 2024 NEXT Week Chapter 3 & 4 on Equity and the constitution 19 7