2. Genesis of the Judicature Act ( inclusive of all jurisdiction family,
divorce, matrimonial, will, etc).
Argument of whether the act came to fuse or confer new rights. (Salt v
Cooper – does not support fusion but rather assimilation of process;
Erington v Erington – Lord Denning disagrees; United scientific
holdings- Lord Diplock – no fusion but there has been some comingling)
2 Beyond organizational amalgamation:
◦ Tinsley v Milligan: Claimant showed interest in property based on
legal and equitable title (co-mingling)
Equity mitigated the law and did not create a distinction (eg of
equity mitigating the law)
Entitled to recover if the maxim: come with clean hands was
upheld (no reliance on the illegal contract – claim for joint
ownership tainted by illegality)
Court applied the same rational as is used in legality in equity
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3. ◦ Coulthard V Disco max Club: (Doctrine of Analogy,)case was statute
bar but claimant relied on fiduciary duty. CL was time barred but
not equity
Court applied Doctrine of Analogy (grounded on the same facts)
which allowed them to treat Equity the same as common law
Doctrine allowed flexibility and equity was therefore subject to
the same limitations as CL
◦ Seager v Copydex (Doctrine of analogy) P had no CL standing but
had standing in equity. Case decided as being analogous to CL and
thus a common law remedy granted.
◦ AG v Blake (DA) inadequate compensation for contract, equitable
remedy applied, court exercising flexibility
DA firm example of the co-mingling of equity and the law, but does not
prove fusion
3 Supremacy of Equity:
Standard of this supremacy set by the Earl of Oxford case where equity
prevails should there be a conflict. (terror of the CL court being
injunction)
Only one court and equity prevails in it (Walsh v Londsdale-Justice
Fry)
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4. Walsh v Londsdale: maxim: equity regard as done what
ought to be done
◦ Does not mean that an agreement for a lease is as good
as a lease unless the equitable right can be enforced by
specific performance (because it is impossible as in a
land sale where the contentious item no longer exist);
not accurate if the purchaser is bonafide without notice
(meaning actual constructive)
◦ Because equity came to fulfill the law
Joseph v Lyons: The distinction between equity and the
law, is abolish
◦ Carlton LJ: not so, court administers both of the laws
Illustrations:
◦ Time stipulations:
Before judicature acts, time was not of the essence for
equity as they are with contractual relationships
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5. ◦ CL- time was the essence of contract, breach meant rescission
of the contract
◦ Equity-time was not essential, if injustice would not be
incurred(equity fixed on doing justice)
◦ Effect of the judicature-time would be considered but not
deem as essential primarily in the instances of WS2/P11.
(Stickney v Keeble – effect of the JA – time is only not of the
essence when it will render injustice because equity does not
operate in a vacuum, it must do what the common law could
not do).
Written lease not under seal – Walsh v Lonsdale
◦ CL-determines the payment of rent on the basis of the lease
◦ Equity-treats a written agreement as good as lease, which
give rise to a right of specific performance (p42/WB) (Foster v
Reeves – no SP because action was brought in the wrong
jurisdiction; Swain v Ayres- court did not give SP because
tenant was in breach of the agreement – “come with clean
hands)
Tutorial 6.2.13 – open discussion was held
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6. Limitations periods: Concealed fraud
◦ Before JA time from cause of action barred by 6 years
◦ CL: applies time from cause of action, thus if fraud is
hidden for 6 years, claimant loses his right, CL test is
mens rea being nothing short of fraudulent intention
(Derry v Peek)
◦ Equity: applies from the time the fraud was discovered.
Equity test is breach of duty (sanction attached) which
falls short of deceit.
◦ Issue: given the JA which of the definition would apply
◦ Result: equity would apply (conflict) (Applegate v Moss
– builder who build on defective foundation, time does
not run until the fraud is discovered).
Liability of personal representative (PR) assets:
◦ CL: charges the PR for loss of assets and estate whether
or not it is his fault
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7. ◦ Equity deems the PR to be a gratuitous bailee and does not hold him
responsible unless he is personally at fault.
◦ Effect of JA on these competing rules: equity being supreme
replaced the CL rule completely (Job v Job – watchmaker who
became bankrupt)
4 Common Mistake:
◦ Equity had the power to rescind a contract where that contract was
valid at law for common mistake. (changed in Great Peace – no
equitable jurisdiction for recession in common mistake)
5 Exceptions
◦ Equity and CL has no conflict here:
Practice – a matter of choice between law and equity:
JA: no new procedure, the old apply
Variance in procedure, court determines what is appropriate
Maxim of equity prevailing does not apply to procedures
Newbiggen by the Sea Gas Co v Armstrong:
Solicitor acted without Plaintiff authority and case was
dismissed, but P was ordered to pay cost (Chancery) CL
indicates that the solicitor must pay and not the P who did
not give the authority. (Chancery adopt this – fairness) 7
8. Conflicting legal and equitable interest in property
◦ Equal equities the law prevails
◦ Priority of the rights of BP without notice – equitable interest
preserved (Pilcher v Rawlins)
◦ BP without notice ranks first (further proof of equity following the
law) (Joseph v Lyons: defendant had legal title of the stocks, P had EI,
legal title gets first priority, cannot get SP where there are no goods).
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