Category Archives: Equity

Diego Pestana, ‘The “Feel” Of A Case: Virtue Decisionmaking As The Correct Approach For Deciding Cases In Equity’

INTRODUCTION … Section I of this Article will provide a brief history of Law and Economics, beginning with its origins in the judicial philosophy of legal realism as espoused by Oliver Wendell Holmes. Section II will discuss the American Hospital case, where Judge Posner memorialized the Leubsdorf-Posner Formulation for granting preliminary injunctions. Section III examines […]

Elspeth Talbot Rice, ‘I’m a Trustee, get me out of here (with indemnities and security)’

ABSTRACT This article is a wake-up call for trustees: it looks at the Chief Justice’s decision in the Supreme Court of Bermuda in Meritus v Butterfield, which exposes as a myth the notion that an outgoing trustee is entitled to insist on a contractual indemnities or to retain trust assets as security against potential trust […]

Carl Islam, ‘Breach of fiduciary duty claims and the quiet fiduciary thesis’

ABSTRACT … After applying the Fiduciary Principle to demonstrate the validity of the Quiet Fiduciary Thesis, the author discusses the operation of the fiduciary principle in the wider commercial and contractual context. Because rescission is a self-help remedy at common law, in equity the question that arises is, ‘can a contract be rescinded on the […]

Christopher Turnbull, ‘Family Law Property Settlements: A Liberal Theoretical Framework for Law Reform’

ABSTRACT This article sets out a law reform framework for family property settlements, drawn expressly from a theoretical foundation. It applies Rawls’ theory of justice, which falls under a liberal philosophical umbrella. It explains the choice of a liberal theory for use in family property settlements and constituent elements of Rawls’ theory of justice. Drawn […]

Recently Published: Irit Samet, Equity: Conscience Goes to Market (OUP)

The book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, […]

Rick Bigwood, ‘The Undue Influence of “Non-Australian” Undue Influence Law on Australian Undue Influence Law: Farewell Johnson v Buttress? Part I’

ABSTRACT The judgments of the plurality and Gordon J in the recent High Court decision of Thorne v Kennedy have undoubtedly altered the prior law relating to undue influence in Australia. But the most significant alterations, which are twofold, are both unacknowledged and unsupported by justificatory reasons. First, undue influence is presented as a single […]

Martin Dixon, ‘Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd; Old and Campbell Ltd v Liverpool Victoria Friendly Society (1979): Stitching Together Modern Estoppel’

ABSTRACT Examines the seminal cases of Taylors Fashions v Liverpool Victoria Trustees and analysis the origin of the modern law of proprietary estoppel. Explains how the decision came to be a turning point in the modern law and analyses the criteria it established. Dixon, Martin John, Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd; […]

Tobias Barkley, ‘Is the Trustee-Beneficiary Relationship Necessarily Fiduciary?’

ABSTRACT This paper is about the relationship between trust law and the concept of a fiduciary. The traditional position on this relationship is that express trustees are necessarily fiduciaries. However, developments in trust drafting practice and their implicit acceptance by the courts have put the relationship between fiduciary and trustee under strain, with the result […]

Daniel Reynolds, ‘What Are The Duties Of Constructive Trustees?’

ABSTRACT There is little discussion in either case law or academic commentary on the duties of constructive trustees. Largely, this is because both streams of discourse are primarily concerned with the circumstances in which constructive trusts are imposed, and the appropriateness of the label of ‘trust’ in such cases. Those questions are of fundamental importance, […]

‘Equity fetishism : an analysis and theory of civil justice in modernity’

ABSTRACT This thesis argues that the law of Equity is a means to complete justice for stakeholders of capitalism with a desire for and need to believe in the certainty and perfectibility of the symbolic of capitalist reason and logic. By applying a Marxist Freudian reading I claim that stakeholder desire for and insistence on […]