Posted: September 10th, 2022

Equity and Trust

Equity and Trust
The equity doctrine consists of a particular set of procedural remedies incorporated in distinct areas of law. The view of several scholars towards equity is that it is an ingredient of law vital for common suits with particular reliefs and damages. However, the application of the equity doctrine has not remained constant. Over time, it has evolved to fit the growing jurisdiction. Equity is now also utilized in the integration of substantial procedural principles of equitable remedies. To this effect, there is an award of specific damages with the intent of achieving set objectives. Nevertheless, there has been a growing concern about the relationship between equity and common law. This causes equity to be devoid in terms of the specific content it handles.
Natural law is a field that utilizes the equity doctrine extensively. Its high application is mainly matters of fairness and justice with the intent of having a correctional impact of offenders. In the theory of justice, the equity doctrine is used in conjunction with legal precepts to address distinct particular issues. The Anglo-American law has the equity doctrine adjusted to become a body of legal rules formulated to handle cases related to either specific or general relief. The relief cases typically apply a justice criterion that brings in higher ethical values compared to bringing in everyday actions for damage. The illustrations, as mentioned earlier, depict that the place and meaning of equity in the structure of law determine how it gets applied.
From the time the Judicature Act was put into effect, divided opinions arose concerning the extent to which common law and equity could reach and also whether there are circumstances in which they cannot be applied. The Act rejects the fusion of the two doctrines as it considers them distinct law concepts. However, it does not refute the fact that they are essential for achieving the primary goals of the justice system. Conversely, several scholars assert that the fusion of the two doctrines do exist in granting both equitable and legal remedies in times where equal rights have been violated. This research paper seeks to analyze the substantive and procedural fusion of the two systems which have been refuted by the Judicature Act.
Historical Background
The function of administering equity and common laws was vested onto three leading judicial platforms: Court of the common plea, the King Bench and the Court of the Exchequer. Two court systems existed before the formation of the Judicature Act of 1873 that is: the Court of Chancery and that of Common law. The two courts were different in many aspects that they would even contest. The disposition and execution of duties brought in many differences that were also dependent on the awards given. However, this battling would become hectic, especially when litigants needed to lodge two distinct cases in a similar court. This would raise concerns on how to apply equity and common law. Such a situation would inevitably bring forth the filling in of a cause of action within the wrong jurisdiction. The courts would decide not to listen to such cases causing a situation that was unjust and unfair in the judicial system. It was a common thing to have several litigants leading remote/unknown claims which were not applicable in the common law.
The Court of Chancery would have an expansion in operations between the 17th and 18th centuries. This would only widen the gap between the two court systems due to constant difficulties. The granting of injunctions in the Common law Courts was limited, nor could they give remedies for individual performances. Conversely, the Court of Chancery was on a path of increased growth to become the only one issuing injunctions and awarding remedies not available in the Common law Courts. The effects of these differences would incredibly frustrate litigants, a considerable backlog of cases, and increased injustice smacks towards litigants as they were unwilling to move cases to the Court of Chancery for both hearing and determination.
Furthermore, a resentful co-existence ensued between the courts due to the Chancery Court utilizing its powers adversely. The adverse use of power reached extreme points of even using common injunctions to delay, refuse, or also frustrate the judgments and rulings from junior courts. The justice system experienced great injustices. The Royal Commission and a vast percentage of the litigants were concurrently disappointed by the court’s actions. To rectify the situations, the two court systems were united to achieve the utmost justice and the rule of law. The unity entailed sharing of power of equitable plea defenses between the Courts of Common law and Equity. Nonetheless, there was still a limitation in power to grant injunctions as per the rule set out in the Common Procedure Act of 1854.
Additionally, the Court of Chancery was subjected to all the Common law queries without getting approvals from the Court of Common Law. This reformation step limited the court its power to award damages regardless of the discretion they had on what form of award they could give. It is crucial to note that the reformers would not formulate an intense fusion in the long-run as the two systems would still end up differing in critical decision-making times. The increased defects led to more conflicts between the two. The Chancery Court rejected stated provisions and would issue injunctions or a stay of proceedings in some matters. For instance, Limited liability companies were just starting to be formulated and had two parties; agents and trustees with specific roles. These two parties were to be sued in different court systems. This led to intense conflicts and constant confusion in the systems. The disagreements between Common law and equity became a hindering block in developing jurisprudence. However, the rift would be eased through the Earl of Oxford’s Case. The Judicature Act was formulated to handle the conflict. It was evident that equity was meant to handle specific legal issues that the Common law failed to maintain.
It was clear that a distinct gap existed between common law and equity. The differences became the basis for the substance needed to attain justice. This gap increasingly became a challenge, thus leading to constant conflicts within the courts. The lack of consistency in law and failure to bring in positive evolution that considered modern society trends was due to this conflict. Nonetheless, this research does attest that the development and growth in law would bring together the court system and make it uniform. The various accidents did make that a possibility. Therefore, one could say that there are no recurring remedial situations for justice and fairness to prevail finally.
Analysis of the Judicature Act 1873
The Judicature Act of 1973 was responsible for the change in typical operations in the court system. Additionally, the existing conflicts between common law and equity were resolved through amalgamation and consolidation of Courts of Common Pleas, the Queen’s Bench, Probate Divorce, Admiralty, Exchequer Courts of Chancery and London Court of Bankruptcy into the Supreme Court of Judicature. The Act’s main goal was ensuring the due process in law is followed for the legal professionals to regain sanity. Conversely, the Supreme Court was divided into two: Court of Appeal and the High Court of Justice. Each got legal and equitable powers to handle matters within their jurisdictions. Each of them had their defined roles that would co-exist, especially in administration and execution matters.
The Act handled the conflicts existing before the introduction of the Act. While there were no changes in clauses, they got divided further into clauses of general provisions and conflicts. Sections 25(1) and 25(2) handled the orders of priority in debt payments of an insolvent and offered grounds to raise the alarm against an express trustee, respectively. This provided a remedy in both courts. For any suit brought to court based on cestui que trusts against an express trustee was considered null and void. Any Statute of limitations would not bar it. These two clauses were solutions to the conflict existing before, as the claims of limited liability organizations were lodged in different courts.
Section 25(3) deals with the tortoise activities done by owners of limited interest in either land or property. In the equity of the law, the court is supposed to issue an injunction or firm restriction as a remedy to any tenant for life who gained it through malice or an unprocedural manner and has an intent to destroy the property inland. Conversely, the Common law indicates that this same tenant has similar privileges, rights, and duties, which the absolute owner will enjoy as real property. Section 25(4) suggests that as per equity law, when an intention against merging exists, then no merger will occur. While the purpose is prudent for a merging situation, the common law indicates that interest should not disrupt the merging process as it is automatic in these circumstances. Equity had a substantial role in protecting the interests of those involved in a merger considering the intention. The intention was prominent in the application of the law of equity and equitable rules.
Section 25(5) states that the mortgagor is allowed to claim possession against a third party even with no form of consent availed. The terms of agreement or contract state that time is fundamental and should be relevant in consideration of performance alone. In the event of parties agreeing to performance or non-performance at a particular stated time, any violation would amount to a breach of contract. About Vane v. Lord Barnard (1716), it was noted that the time clause provided an intricate legal duty. The House of Lords emphasized that it is hence equal to what is applicable in the option of obtaining property. In consideration of tenancy, the time clause would, however, have an adverse impact on the landlord as it negatively affected their income.
Additionally, this section does provide that contract performance and time are essential, but the allocated time needs to be reasonable enough. The level of performance or circumstances determines reasonability. if the promise goes beyond the stipulated time, the aspect of reasonable time is applied. Any notice sent out by the promisee would be a justification of reasonable time for performance, which has its due time elapsed. Nonetheless, the notice should heed to the rule of a week or seven days for effectiveness. It should also avoid any vagueness by being precise and free.
Section 25(8) does prove the guiding rules in the appointment of a receiver in consideration of interlocutory provisions. The law strictly avails power to the High Court. Section 25(9) gives power to the Court of Admiralty to handle matters of ship vessels responsible for any tort activities in the common law. It has no restrictions on equity law if applicable. In any issues concerning the custody of minors and education have been outlined in Section 25(10), which gives specific instances and provisions. Section 25(11) deals with the conflicts and specific rules that apply in case they erupt. All leases are binding agreements in the event they are made through deeds. Any tenant having written documents such as a lease has legal possession, pays rent, and duties for some time is known as holding tenant in the common law. Conversely, equity indicates that a lease is a binding agreement that allows the parties involved to seek for any specific performance with the existing terms is that the parties are to execute their responsibilities amicably.
In the case of Walsh v Lonsdale, an important precedent was set in regards to the Judicature Act. In this case, parties would enter into the agreement for seven years for the lease of a mill. The rent for a year had already been paid with the balance to be catered for through loan runs. the defendant would assume possession with no form of a lease or legal documentation. He had also paid rent in arrears, so he was a yearly tenant under common law. On the other hand, the plaintiff would demand annual pay as per the original terms. The defendant refused to make the payment hence making the plaintiff seek legal redress of an injunction and specific performance against the former. The defendant asserted that the permission of being let into possession and having legal documents that made him a yearly tenant was null and void under common law. Nonetheless, considering the maxims of equity specifically, the “do that ought to be done” would prevail in this case. The common law does offer clear rules regarding tenancy. However, the Judicature Act does provide precautionary regulations that are applicable in exceptional circumstances in avoidance of any miscarriage of the rule of law.
As per the decision in Walsh v Lonsdale which conformed to the doctrine of procedural fusion, Jessel M.R would advise that this case was based on the fundamental rules of procedural fusion, Section 25(11) and the Judicature Act of 1873. More emphasis has been done on the supremacy idea of equity as Sparkes would concur with Jessel’s arguments. Overall, it is evident that the recovery of rent can be made at law in some circumstances and when there is a violation of a condition by any party. Rent distress is a legal remedy that also applies to the events of legal rights. The decision in the case, as mentioned earlier, is binding any of the party does concede that the Judicature Act formulated the tenets of substantive rules of law and equitable remedies. Lonsdale did assert that the use of equitable defense for a legal claim outlined in the Judicature Act hence allowing the maxim of equity that the equity place acts need to be done as they are supposed to be done. In general, equity is a complement to the law in terms of equitable damages.
The Aspect of Fusion of Law and Equity
Law and equity are the basis of the fusion aspect. One example is when the law needs to sufficiently cater to wrongful acts, breaches of rights, or omissions; then, there is a need to integrate equity to provide equitable remedies. Over the years, the fusion of law and equity has raised significant concern with the conflict creating huge debates within the legal arena. The social basis of law is focused on blending with all other law aspects and equity for the formation of a just society. Consequently, equity individually is in a position not to overrule nor be superior in matters about law, but offer assistance to the law when it is not adequate to provide remedies. Conversely, the scholar and precedents in the school of law have appreciated this fusion of equitable remedies incorporated in procedural ways of the law. For instance, the considerations have been applied to matters of breaching fiduciary duties.
A court with jurisdiction to handle cases of fiduciary duty will administer and practice both law and equity and offer the right remedy in consideration of the precedents brought forward by common law courts. This also relates to tortious actions that have been identified in the equity courts without making any changes to the pleadings or prayers in such claims. Nonetheless, this process should be procedural in terms of involving an amicable judicially engineered change in the law such that the court system is subdued or the claiming party in the particular circumstance. Common law is very stringent in offering awards. However, the change and advancements made in jurisprudence do affect, and for a fair award to be delivered, then the fusion must occur. The main emphasis is now on the procedural method followed in fusing and the exceptions that will be put in place.
For particular circumstances such as a breach in confidence, the Supreme Court of Canada would join and ratify the provisions in law and equity so that a claim is awarded. There are also times when monetary awards are not solutions to the wrongful acts. The court of appeal in New Zealand has been consistent in awarding exemplary plaintiff damages. its respective bench judges would indicate that these cases will have equity applied as monetary awards are not applicable. The main goal is justice to be upheld in any wrongful acts done by the defendant. Equity is the only source that can provide remedies that are sufficient, satisfactory, and equitable. The ruling judge would further indicate that for any matters which impose and subject the clause of duty of confidence, then they should be treated as unique. In issues of justice, bringing together common law and equity will be adequate for involved parties. The merging of the many remedies should ensure that availability is achieved regardless of whether the same solutions have their basis or have come from statutes, common law, or equity.
The many scholars doing English law, together with other legal scholars have discussed and critiqued the fusion ideology as they consider it a fallacy. There has been a constant heated debate among scholars, especially those who argue that there is no unification nor any merging of law and equity. Furthermore, they state that the fusion is a mere fallacy because the two should remain independent to achieve justice in issuing awards and also that no procedural rules or legislative procedures do exist. For further opposition, they indicate that the dispute’s characteristics are inherent and based on extreme assumptions on equitability and the operating of legal actions. Consequently, the plaintiff will have the extra grounds of redress and can use other legal actions applicable to the situation.
Several scholars have claimed that the administration and the cause of justice have been jeopardized since the enforcement of the Judicature Act. A substantial unification of equity and law will leave judges with a broad mode of awarding of damages. While the award of damages is the court’s discretionary duty, putting limits in specific ways of awarding damages is also very crucial. Some advantages, as expressed by some scholars, including equity, will maintain its position in law. In contrast, common law gets the leeway to operate freely in times when equitable damages are not enough. More emphasis has been done on matters requiring a simple application of equity since they are bound to suffer from gradual prejudice leading to a weakened system of law over time.
According to Roscoe Pound, an infamous philosopher, there exist four ways in which substantive fusion can happen in regards to both equity and law. The first one is that the rapid advancements of equitable principles become applicable in different circumstances. Subsequently, fair damages can be overruled by legal damages in some law instances. Additionally, the rejected rules can become irrelevant and disappear to have equity adopted that overrules rather than supplementing the legal rules. On the contrary, Walsh indicated that modern equity focuses on advancements and to the extent to which it is the sole remedy to its shortcomings. It can develop further to create a strengthened jurisprudence and structure of both justice and equity.
The issue of fusion is cleared up by the fact that equity provides a broad range of remedies to tort actions. The development of law and equity will result in meeting demands of an increasingly changing of an advanced legal system. The two working together increases the possibility of more considerable advancements in law compared to each working individually while fighting the supremacy battle in law. The judges and legal scholars get to be in a position where they can evaluate situations and choose a mode of remedies sufficient for damages.
The substantive merger ideology of both law and equity does motivate several scholars to believe the existence of a fusion. This is in terms of legal and equitable causes of action, even in the times of granting legal remedies for incurred damages. The ideology does have its complications in law. The fusion terms will have the two rely on each other, meaning one cannot function without the other even in special cases. the ideology hence becomes a pure fallacy as the law becomes very rigid to bring in new amendments and advancements. The doctrine of merging the two will only be ambiguous in the rules of remedies to award final judgments in any courts.
It is important to note that there is no dismissal or disputing of common law by equity. Thus, it is a supplement in times of insufficient legal actions. Conversely, the fusion ideology will mean that justice is denied since the two have to delay any actions to be taken. Legal professionals are made to choose on seeking equitable remedies of legal redress using common law. According to Canson Enterprise limited v Boughton and Company(1991), it was stated that the fusion of equity and law in consideration of the Judicature Act causes ambiguity, especially when the appellant appeals to the court. The appeal will be stating that the lower court nullified his prayers in the claim. It will be even more ambiguous when drafting the prayers by legal professionals.
Considering the Tinsley v Miligan (1994), the court would be advised on the issues regarding property rights where Lord Browne advised on the need for clear and vivid ways to find distinctions in matters that advocate for equity and those that require law. The court would also indicate that fusion cannot work for such matters. For instance, the English Courts have only completed a single case successfully in over a century in property matters that include legal and equitable remedies. Fusion does delay the justice process, thus frustrating the legal professionals in the justice corridors. The MCC Proceeds Inc v. Lehman International (1998) was an indication of fusion failing to meet the intentions of justice. Thus, the parties chose an amicable way of moving the case to a different forum for the same goal, prevailing of justice. This further was an indicator that even the award of damages itself could fail to be enough or cause problems during its execution.
The Case Boyer V. Warbley (1977) does justify the fallacy view towards the fusion with Lord Diplock utilizing a metaphor with the two running side by side. The statement would confuse the substantiveness or objectiveness of the two systems. This meant that it was whether the two were fused or they were two distinct identities with a similar goal of justice. While this was an indicator of the function of the Judicature Act, some shortcomings did come up. They include a miscarriage of justice, means of the truth that are not fair nor procedural, and this becoming a fallacy in modern law. Procedures in law must be followed to achieve justice and coherence. Judges have always borrowed ideas from both law and equity. Nonetheless, the two should not create a conflict. For example, a view of contributory negligence where trustees have broken the rules and not performed their duties, considering the effect these actions will have on the trust is one of the borrowing ways that common law and equity would use to solve the conflict between the parties and the rules of law. It is advised that amalgamation should not lead to rejection nor the violation of equitable proprietary rights.
The extent to which fusion can be applied should be considered in coming up with its meaning, purpose, or applicability. The case Harris v Digital pulse (2003) will have the judge stating that fusion could be applied partially when common law and equity do not co-exist or depend on that particular situation. The judge also said in the events in which torts are committed, and the two systems encourage compensation, it is recommended to have remedial responses. On the other hand, the Judicature Act (1873) indicates that the objective of fusion is not the separation of logic, reasoning, or rational decisions that enhance the cause of action.
The Judicature Act failed in forming comprehensive binding rules for fusion, thus causing the extensive discussion. Violation of distinct legal systems is bound to happen with applying substantive fusion. This is due to many of the legal systems relying on common law or the remedies and causes of action linked to equity. The goal of common law and equity is utmost fidelity to the justice rule, and any dispute between them only means no binding decision can be made, nor any executions carried out. The injustices that come from such a situation will go over the roof as the offenders are not subject to the suggested forms of punishment. A weak system is one with considerable procedural shortcomings.
Some benefits of the Judicature Act include the introduction of a substantive effect that has caused the two systems to focus on attaining justice but with no signs of the fusion. According to Sheridan and Keeton, the close co-existence of the two systems has caused an amalgamation of the rules of common law and the law of equity. Fusion has been considered to be more progressive, even with no specific standards in modern times. Therefore, it is a positive move towards sanity in a system that has, for a very long time, on which rules apply where. Sheridan and Keeton appreciate the efforts done by the Judicature Act, stating that it is not at the wrong position when all it wants is remedies to the damages through a blend of the two. Overall, the fused system that is substantive does formulate and bring forth the legal actions and remedies that are inherent and could also co-exist.
Conclusion
From the complete analysis of the Judicature Act, one can assert that the Act failed to consider the fusion of law and equity considerably, as other scholars would note. The determination to fuse the two has led to a progressive realization but still cannot be applied or defined in modern law. An analysis of the extent to which the fusion was substantive and procedural was also done to indicate that it had been integrated within the two of them. Before the implementation of the Judicature Act, the two different and separate courts had their own duties but became challenging for the litigants. Over time, the Earl of Oxford case did come to save the day through the Act to have equity conciliated in situations where the law failed to meet. One could argue that the jurisdictions of both law and equity are binding, and the only query should be “what” needs to be brought in during the situations and not “where” in terms of their origin. It is the careful analysis of this question that illustrates the issue of where law and equity in terms of fusion can be applied.

Help write my assignment – Bibliography
Cases
A-G v Wellington Newspaper Ltd [1988] 1 NZLR 129
Attorney-General v Blake [2001] 1 AC 268.
Cadbury Schweppes Inc v FBI Foods Ltd (1999) 167 DLR
Felton v Mulligan (1971) 124 CLR 367
G R Mailman & Assoc. Pty Ltd v Wormald (Aust) Pty Ltd (1991) 23 NSWLR
Habib Bank Ltd (Aust) Pty Ltd v Habib Bank AG Zurich [1981] 1 WLR 1265
Harris v Digital Pulse (2003) 56 NSWLR 298
Lord Dudley and Ward v Lady Dudley (1705) Pr Ch 241
United Scientists Holdings Ltd v Burnley Borough Council [1978] AC 904; Walsh v Lonsdale (1882)
Statutes and Statutory Regulations
Judicature Act 1873 (UK)
Fair Action Act 2014: 2024 – Essay Writing Service | Write My Essay For Me Without Delay (UK)
Edited Books
Dal Pont, GW & Chalmers, D R, Equity, and Trusts in Australia (4th Ed, 2007).
Heydon, J C & Loughlan, P I, Cases and Materials on Equity and Trusts (7th Ed, 2007)
Meagher RP, Heydon JD, Leeming MJ, Meagher Gummow, and Lehane’s Equity Doctrines and Remedies (4th Ed, 2007)
Edited Journals
Andrew Burrows, ‘We do this at Common Law but that in Equity’ (2002) 22 Oxford Journal of Legal Studies, 5-6
G R Mailman & Assoc. Pty Ltd v Wormald (Aust) Pty Ltd (1991) 23 NSWLR 80 at 99, per Meagher JA
Pearce, Robert, John Stevens, and Warren Barr. The law of trusts and equitable obligations. Oxford University Press, 2010 – Essay Writing Service: Write My Essay by Top-Notch Writer.
Sossin, Lorne. “Public fiduciary obligations, political trusts, and the equitable duty of reasonableness in administrative law.” Sask. L. Rev. 66 (2003): 129.
Malcolm. Equitable obligations: duties, defenses, and remedies. Thomson Legal and Regulatory, 2007.

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