Fault Lines in Equity by Jamie Glister, Pauline Ridge

By Jamie Glister, Pauline Ridge

Fairness - the physique of legislation built within the English court docket of Chancery - has a protracted and individual historical past. within the twenty first century, it remains to be a huge regulator of either advertisement and private dealings, in addition to informing statutory law. even though a lot equitable doctrine is settled, there stay a few intractable difficulties that bedevil legal professionals throughout jurisdictions. The essays during this assortment hire new old, comparative, and theoretical views to solid gentle on those fault strains in equitable doctrine and technique. top students and practitioners from England, Australia, and New Zealand study such contentious themes as: own and proprietary legal responsibility for breaches of equitable tasks (including fiduciary tasks) * the production of non-express trusts * equitable rights in insolvency * the fiduciary 'self dealing' rule * clogs at the fairness of redemption * the distribution of resources on relations breakdown * the suitability of unjust enrichment research. The booklet addresses particular doctrinal questions, in addition to the 'meta' problems with association and technique, and the findings may be of price to teachers and practitioners alike. (Series: Hart reports in deepest legislations - Vol. 1)

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Fault Lines in Equity

Fairness - the physique of legislation built within the English court docket of Chancery - has a protracted and wonderful heritage. within the twenty first century, it is still a big regulator of either advertisement and private dealings, in addition to informing statutory legislation. even though a lot equitable doctrine is settled, there stay a few intractable difficulties that bedevil legal professionals throughout jurisdictions.

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28 Importantly, the use of unjust enrichment is prevalent in a range of commercial contexts, such as the ultra vires payments under interest swaps contracts,29 for recovery of payments 24 Birks, Unjust Enrichment (n 8) particularly chs 5 and 6. Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] AC 558. 26 Ibid [20]–[28]. 27 See, eg Sempra Metals Ltd v Her Majesty’s Commissioners of Inland Revenue [2007] UKHL 34, [2008] 1 AC 561. Leaving aside the absence of basis issue, in Sempra there is broad adoption of Birks’ theory; see, eg Lord Hope of Craighead’s extensive citation of Birks at [27]–[33].

This analysis demonstrates that the legal positions in the respective jurisdictions and the underlying judicial concerns motivating English and Australian courts are not that dissimilar. Nonetheless, there are still some significant differences of substance between the courts in the two jurisdictions. I will consider both the role and use of equitable concepts and 56 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373. See Farah (n 3) [134]. This is consistent with Birks’ later writing on the subject, eg P Birks, ‘Receipt’ in P Birks and A Pretto (eds) Breach of Trust (Oxford, Hart Publishing, 2002) 223.

For example, in the context of remedies for breach of fiduciary duty, the Privy Council in Attorney General (Hong Kong) v Reid62 ignored a century of precedent and accepted the use of a proprietary remedy over the proceeds of a bribe given to a fiduciary. Other doctrines have been developed and modernised (sometimes in parallel fashion) so that equitable principles are relevant to the modern world. 64 In both the High Court and the House of Lords, it has been stressed that general concepts, in equity at least,65 are developed and used in our law consistently with existing principles and doctrines.

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