Flashcards
Equity and Trusts - Week 1
Cards in this deck (17)
- 1In what court was the law of equity developed?The English Court of Chancery
- 2What was held in the Earl of Oxford's case in 1615?In the event of a conflict between the courts of common law and equity, equity prevails.
- 3In what case was it held that in the event of a conflict between the common law and equity, equity prevails?The Earl of Oxford's Case [1615]
- 4Name three cases where it was suggested that the court of equity, although a court of conscience, must operate within defined rules1. Cook v Fountain (1672)
2. Gee v Pritchard (1818)
3. Bond v Hopkins (1802) - 5What was proposed in the following three cases? 1. Cook v Fountain (1672) 2. Gee v Pritchard (1818) 3. Bond v Hopkins (1802)Courts of equity should operate within certain defined rules.
- 6Explain the double edged sword of the development of equitable principlesAllows the law to be applied with greater uniformity, however meant that the rules of equity were in danger of becoming as fixed as those of common law.
- 7What Act granted the New South Wales Supreme Court equitable jurisdiction?New South Wales Act 1983 (UK)
- 8How many divisions does the Supreme Court of New South Wales have?Two. Common law and equity.
- 9List some of the types of claims dealt with in the equity division of the Supreme Court of New South Wales (10)*Claims for injunctions to restrain wrongful conduct
*Claims to have contracts specifically enforced or set aside
*Claims to have rights to property declared and enforced
*Claims relating to the administration of corporations
*Partnerships
*Trusts
*Probate
*Commercial matters
*Admiralty
*Protective matters - 10True or false: A judge sitting in the common law division may apply both common law and equitable principles and visa versaTrue. The division between common law and equity is largely administrative for the purpose of grouping similar claims.
- 11What was achieved by the Judicature reforms (Judicature Act 1973 (UK))It was no longer necessary for a person to seek remedies in two different courts (equity and common law) in respect of the same factual circumstances.
- 12What is the "fusion fallacy"?The proposition that the joint administration of equity and common law (brought about by the Judicature Act 1873 (UK)) means that the doctrines of one are applicable to the other.
- 13In What Australian case is the "fusion fallacy" discussed?Giller v Procopets (2008)
- 14How did the court of chancery develop from petitions to the King?English common law courts created to preside over all pleas and suits heard by the high court of the king.
This became known as the court of the King's bench.
The King's court only had jurisdiction if a matter was considered to effect the King's legitimate interests (there were also other local courts presided over by local aristocracy which heard other cases)
In the local courts, decisions tended to favour the wealthy, which led litigants to petition the king for justice, who was entitled to give relief.
The court of chancery developed when medieval kings began referring these petitions for justice to a chancellor.
In the 14th century, the practice of the Lord Chancellor dealing with petitions was formalised, and the court of chancery became used more frequently to mitigate the harsh measures taken by certain courts. - 15Explain the tension between the jurisdiction of the courts of common law and equity. How was this tension resolved?The most common remedy awarded by the Court of Chancery was an injunction to restrain a common law action from proceeding. This created tension between the two systems.
The tension was resolved in the 1615 Earl of Oxford's Case where it was held that in the event of conflict between the courts of equity and common law, equity prevails. - 16What is meant by 'equity'The body of cases, maxims, doctrines, rules, principles and remedies which derive from the jurisdiction of the court of equity.
- 17What happened in and what was held in Harrison v Schipp (2002)?Plaintiff lost to defendant at trial and on appeal. He subsequently brought further proceedings in the Equity division of the NSWSC on the basis that new information had become available since the appeal.
Held that the Equity division did not have jurisdiction since the Judicature Act, instead an appeal must be made to the Court of Appeal.
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- Flashcards on Equity and Trusts - Week 1, created by lucycollett on 10/02/2015.
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