History and Nature of Equity

Professor Cameron Stewart

The Blind Men and the Elephant

• John Godfrey Saxe

The Anglo-Saxon Invasions c500AD

The Battle of Hastings 1066

Norman Reorganisation

• Sovereignty• Absolute

beneficial title• Reception of laws–Conquering– Settling;–Cessession

• Feudalism

Henry II – the Father of the Common law

• Curia Regis• General Eyre and

Assizes • Assize of Clarendon

1166 – 12 freemen from the hundred and 4 from the town

• Henry, Richard Coeur-de-Lion and John Lackland

A’Beckett’s Legacy

The Church Courts

• The benefit of the clergy

Edward Longshanks Hammer of the Scots

• Parliament begins 1275• The use of statute as

opposed to ordinance• Nisi Prius• Quia Emptores

Curia Regis – embryonic courts

• Court of Exchequer – revenue• Court of Common Pleas – civil actions• Court of King’s bench – crime• Remaining Council functions split into King’s Council later Concilium Regis and then

Privy Council

The Writ System

• Bureacracy• Organisation of wrongs• Remedies• Popularity• Recording• Stare Decisis• Common law

What’s the common law meant to do?

• Persons & Property• Quick, efficient, fair and effective• Real property – real actions- real relief• Seisin• Remedies – return the seisin, pay monetary

damages• Contract and tort

What goes wrong?

The Office of the Lord Chancellor

• Around since Norman times

• Keeper of the King’s Conscience

• Cleric and Keeper of the Great Seal

• Member of Lords, Judge and Church

Chancery as a Court

• Around the 15th century• Function to repair the failings of Common law• Principles of Christian fairness/conscience• Maxims of equity– Substance not form– Does not assist a volunteer– Equity follows the law– Clean hands

• Discretion and the Chancellor’s foot• The two streams – law and equity

What does Equity do?Parkinson: (i) the exploitation of vulnerability or weakness, as exemplified in

principles relating to unconscionable dealing and undue influence; (ii) the abuse of positions of trust or confidence, as exemplified in the

law of trusts and fiduciary obligations generally; (iii) the insistence upon rights in circumstances which make such

insistence harsh or oppressive as exemplified in relief from penalties and forfeiture, the law of equitable set-off, and the refusal of specific performance on the discretionary ground of hardship;

(iv) the inequitable denial of obligations, as exemplified in the doctrine of part performance and the principle of equitable estoppel;

(v) the unjust retention of property, as exemplified in certain constructive trusts and principles of subrogation

The relationship between CL and Eq

• James VI of Scotland• The rise of

protestantism• Absolutism of sovereign

– Divine Right of Kings or King-in-parliament?

• Bacon & Ellesmere: Earl of Oxford’s case

Earl of Oxford’s case

• The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of Trusts, Wrongs and oppressions, of what Nature soever they be, and to soften and mollify the Extremity of the Law ... [W]hen a Judgment is obtained by Oppression, Wrong and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error or Defect in the Judgment, but for the hard Conscience of the Party.

The legalisation of equity

• The Civil War – equity nearly destroyed• Lord Nottingham (1673-82)– father of equity• Lord Eldon – (1801-27) modern rules• Precedent and fixation• Appointment of VC• Poor administration• Infamous delay – record 16 years and still

interlocutory

19th Century reforms• Bentham and the ‘dog law’• Judicature Acts 1870s – 1970s• The two streams in one courtWindeyer J in Felton v Mulligan (1971)

124 CLR 367 at 392; [1972] ALR 33 at 46 • Fusion fallacies• Salt v Cooper (1880) 16 ChD 545 at 549, Jessel MR said of the effect

of the Act: • It has been sometimes inaccurately called 'the fusion of Law and

Equity'; but it was not any fusion, or anything of that kind; it was the vesting in one tribunal the administration of Law and Equity in every cause, action, or dispute which should come before that tribunal. … To carry that out, the Legislature did not create a new jurisdiction, but simply transferred the old jurisdictions of the Courts of Law and Equity to the new tribunal, and then gave directions to the new tribunal as to the mode in which it should administer the combined jurisdictions.

•

Fusion?• United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 at 924;

[1977] 2 All ER 62 at 68, where Lord Diplock said:

• If by ‘rules of equity’ is meant that body of substantive and adjectival law that, prior to 1875, was administered by the Court of Chancery but not by courts of common law, to speak of the rules of equity as being part of the law of England in 1977 is about as meaningful as to speak similarly of the Statute of Uses or of Quia Emptores. Historically all three have in their time played an important part in the development of the corpus juris into what it is today; but to perpetuate the dichotomy between rules of equity and rules of common law which it was a major purpose of the Supreme Court of Judicature Act 1873 to do away with, is, in my view, conducive of erroneous conclusions as to the ways in which the law of England has developed in the last hundred years. Your Lordships have been referred to [Ashburner’s] vivid phrase ... [on] the effect of the Supreme Court of Judicature Act … My Lords, by 1977 this metaphor has in my view become both mischievous and deceptive … If Professor Ashburner’s fluvual metaphor is to be retained at all, the waters of the confluent streams of law and equity have surely mingled now.

Walsh v Lonsdale (1882) 21 Ch D 9

• It was held that a person who enters into possession of land under a specifically enforceable contract for a lease is regarded, by a court having jurisdiction to enforce the contract, as being in the same position, as between itself and the other party to the contract, as if the lease had actually been granted

• Remedy of distress granted

Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• Cresdon agreed in writing to lease land to Sarcourt. • The agreement contained the terms of the lease as an

annexure. • The lease was duly executed but never registered. • Sarcourt defaulted under the lease and Cresdon took action

against Chan as guarantor of the unregistered lease. • Cresdon’s action against Chan was stated as being one

taken on the guarantee ‘under this lease’. • Cresdon’s action was unsuccessful. • The court held that as there was no registered lease there

was no enforceable guarantee. Cresdon’s alternative claim was based upon the rule in Walsh v Lonsdale.

Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• This claim also was unsuccessful. In coming to its conclusion the court ruled that, although the rule in Walsh v Lonsdale meant that an agreement to lease gave rise to an equitable lease, it did not create a legal interest. A consequence of this is that the equitable lessee will be defeated by a bona fide purchaser of the legal estate who acquires the legal estate for valuable consideration and without notice of the equitable lease

Chan v Cresdon Pty Ltd (1989) 168 CLR 242

• The court also confirmed that the operation of the rule depended upon the availability of specific performance of the agreement to lease.

• In the circumstances of the case, two facts raised doubts as to the availability of specific performance. First, Cresdon had in the meantime mortgaged the property. Second, the lease had come to an end before the expiration of the term due to Sarcourt’s breach.

Aquaculture Corp v New Zealand Green Mussel Co [1990] 3 NZLR 299

• Cooke P, in the context of a confidential information case, said:

• For all purposes now material, equity and common law are mingled or merged. The practicality of the matter is that in the circumstances of the dealings between the parties the law imposes a duty of confidence. For its breach a full range of remedies should be available as appropriate, no matter whether they originated in common law, equity or statute.

Day v Mead [1987] 2 NZLR 443• Mead had been Day's solicitor for 25 years. • He was also a director and shareholder of a newly-formed

company, Pacific Mills Ltd. • Acting on Mead's advice, Day purchased 20,000 shares, at $1 per

share, in Pacific Mills, knowing that Mead was a shareholder and that his firm's nominee company had lent money to Pacific Mills.

• Day actively participated in the management of the company• Day subscribed for a further 80,000 shares in the company at a cost

of $80,000. • Company went into receivership, and Day lost both investments. • Day sued Mead for his loss plus interest, claiming breach of

fiduciary duty. • Was his contribution to the loss relevant?

Day v Mead [1987] 2 NZLR 443

• Cooke P stated:

• Whether or not there are reported cases in which compensation for breach of a fiduciary obligation has been assessed on the footing that the plaintiff should accept some share of the responsibility, there appears to be no solid reason for denying jurisdiction to follow that obviously just course, especially now that law and equity have mingled or are interacting. It is an opportunity for equity to show that it has not petrified and to live up to the spirit of its maxims

G R Mailman & Associates Pty Ltd v Wormald (Aust) Pty Ltd (1991) 24

NSWLR 80

• Roderick P Meagher JA, as a member of the Court of Appeal in New South Wales, opined that the views of Lord Diplock in United Scientific Holdings v Burnley Borough Council were ‘so obviously erroneous as to be risible’

Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298

• Breach of confidence case• Can you get exemplary damages?• Mason P, at 335–9, argued that an award of

exemplary damages in cases of equitable wrongs was justified. His Honour suggested that the rationale for exemplary damages in tort law could be applied by analogy to equitable wrongs, and characterised this approach as an example of ‘fusion by analogy’ with the law of torts.

Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298

• However, the majority of the Court of Appeal disagreed. Spigelman CJ, at 307–10, stressed that if ‘fusion by analogy’ was to be used, then the appropriate analogy was with contract law, where exemplary damages are not available.

• Heydon JA, in a lengthy and detailed analysis of the relevant authorities and arguments, rejected the proposition that exemplary damages should be available for breaches of equitable obligations. His Honour, at 402, also suggested that such a view, if based upon the view that the fusion of the courts allowed the new single court to award common law remedies for breaches of equitable obligations, amounted to a ‘crude fusion fallacy’

Areas of conflict

• Mortgagee’s power of sale• Damages in equity (especially in breach of

confidence and breach of fiduciary duty)• Causation in breach of fiduciary duty

Maxims Spry has written the following in relation to the maxims:

[T]he maxims of equity are of significance, for they reflect the ethical quality of the body of principles that has tended not so much to the formation of fixed and immutable rules, as rather to a determination of the conscionability or justice of the behaviour of the parties according to recognised moral principles. This ethical quality remains, and its presence explains to a large extent the adoption by courts of equity of broad general principles that may be applied with flexibility to new situations as they arise.

I C F Spry, The Principles of Equitable Remedies, Specific Performance, Injunctions, Rectification and Equitable Damages, 7th ed, Lawbook Co, Sydney, 2007, p 6.

Maxims

• Kirby J in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 271; 185 ALR 1 at 49: ‘It is a commonplace that equity is a living force and that it responds to new situations. It must do so in ways that are consistent with equitable principles. If it were to fail to respond, it would atrophy.’

Maxims

• In Corin v Patton (1990) 169 CLR 540 at 557; 92 ALR 1 at 12, in relation to the maxim ‘equity will not assist a volunteer’, Mason CJ and McHugh J said:

• Like other maxims of equity, it is not a specific rule or principle of law. It is a summary of a broad theme which underlies equitable concepts and principles. Its precise scope is necessarily ill-defined and somewhat uncertain.

Equity will not suffer a wrong to be without a remedy

• A common approach of judges is exemplified in the statement in In re Diplock’s Estate; Diplock v Wintle [1948] Ch 465 at 481–2; [1948] 2 All ER 318 at 326, where the English Court of Appeal said:

• • [I]f the claim in equity exists, it must be shown to have

an ancestry founded in history and in the practice and precedents of the courts administering equity jurisdiction. It is not sufficient that because we may think that the ‘justice’ of the present case requires it, we should invent such a jurisdiction for the first time.

Equity will not suffer a wrong to be without a remedy

• Cowcher v Cowcher [1972] 1 All ER 943 at 948, Bagnall J said:

• • So in the field of equity the length of the Chancellor’s

foot has been measured or is capable of measurement. This does not mean that equity is past childbearing; simply that its progeny must be legitimate — by precedent out of principle. It is well that this should be so; otherwise no lawyer could safely advise on his client’s title and every quarrel would lead to a law suit.

Equity will not suffer a wrong to be without a remedy

• Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151–2, 155; 236 ALR 209 at 252–3, 255–6, made it clear that trial judges and intermediate appellate courts should not depart from decisions of intermediate appellate courts in other Australian jurisdictions, nor radically change existing law unless such decisions or existing law were plainly wrong. The High Court made it clear that such changes to the law were properly within the domain of the High Court only

Equity follows the law

• Equity recognises common law rights, estates, interests and titles and does not say that such common law interests are not valid. Thus, in Leech v Schweder (1873) 9 LR Ch App 463 at 475, Mellish LJ said that ‘where a right existed at law, and a person came only into equity because the Court of Equity had a more convenient remedy than a Court of Law … there equity followed the law, and the person entitled to the right had no greater right in equity than at law’

Equity follows the law • In DKLR Holdings Co (No 2) Pty Ltd v Commissioner of

Stamp Duties [1980] 1 NSWLR 510 at 519, Hope JA said: • • Where the trustee is the owner in fee simple, the right of

the beneficiary although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligations which equity has imposed upon him. The trustee, in such a case, has at law all the rights of the absolute owner in fee simple, but he is not free to use those rights for his own benefit in the way he could if no trust existed. Equitable obligations require him to use them in some particular way for the benefit of other persons.

Equity follows the law • Time stipulations inn contract• s 25(7) of the Judicature Act 1873 (UK) resolved the conflict

between the common law and equity approaches to the effect of a contractual time stipulation by giving statutory effect to the equitable rules, effectively transforming a time stipulation from an essential term of a contract to an intermediate term of a contract: Zaccardi v Caunt [2008] NSWCA 202 at [92].

• Consideration in common law vs consideration in equity

• Co-ownership when there is a 50:50 contribution – Delehunt v Carmody

Where the equities are equal, the first in time shall prevail, and, Where there is equal equity, the law shall

prevail

• Remember these?

One who seeks equity must do equity

• Plaintiffs in equity must fulfil their legal and equitable obligations before seeking a remedy. The maxim represent’s equity’s version of the biblical ‘golden rule’ set out in the Book of Matthew (7:12): ‘do unto others as you would be done by’. The maxim emphasises that the Court of Chancery originated as a ‘court of conscience’.

One who seeks equity must do equity

• In Hanson v Keating (1844) 67 ER 537 at 538–9, Wigram V-C said the following in relation to this maxim:

• It decides in the abstract that the court giving the plaintiff the relief to which he is entitled will do so only upon the terms of his submitting to give the defendant such corresponding rights (if any) as he also may be entitled to in respect of the subject matter of the suit; what these rights are must be determined aliunde by strict rules of law, and not by any arbitrary determination of the court. The rule, in short, merely raises the question of what those terms (if any) should be.

One who seeks equity must do equity

• In Hanson v Keating (1844) 67 ER 537 at 538–9, Wigram V-C said the following in relation to this maxim:

• It decides in the abstract that the court giving the plaintiff the relief to which he is entitled will do so only upon the terms of his submitting to give the defendant such corresponding rights (if any) as he also may be entitled to in respect of the subject matter of the suit; what these rights are must be determined aliunde by strict rules of law, and not by any arbitrary determination of the court. The rule, in short, merely raises the question of what those terms (if any) should be.

One who comes to equity must come with clean hands

• This maxim is closely related to and descends from the maxim just discussed: FAI Insurances Ltd v Pioneer Concrete Services Ltd [1987] 15 NSWLR 552

• It requires a plaintiff in equity not to be guilty of some improper conduct, or else relief will be denied

• This maxim confirms that equity is not solely concerned with preventing unconscientious conduct by a defendant, but also requires conscientious behaviour by a plaintiff.

Delay defeats equity

• In seeking equitable relief a plaintiff must act promptly and diligently: Smith v Clay (1767) 27 ER 419 at 420. Equity will not allow defendants to remain for too long in a position of not knowing whether equitable relief will be ordered against them because it would be unconscientious to do so.

• Laches• Acquiescence

Equality is equity

• Idea of proportionate equality• Co-ownership• Resulting trusts• Also, equity will generally, but not always,

execute a trust power of appointment equally among the objects of the power if the donee of the power has failed to exercise the power: McPhail v Doulton [1971] AC 424

Equity will not assist a volunteer • In Colman v Sarrel (1789) 30 ER 225 at 227, Lord

Chancellor Thurlow said that a plaintiff seeking equitable relief has to have ‘a valuable or at least meritorious consideration’. This requirement is expressed in the maxim that ‘equity will not assist a volunteer’, a volunteer being a person who has not given valuable consideration. The maxim does not require that the consideration be paid or executed: Reef & Rainforest Travel Pty Ltd v Commissioner of Stamp Duties [2001] QCA 249 at [10].

Equity will not assist a volunteer • The rationale for this maxim is that it would not be

unconscientious for equity to decline equitable assistance to a plaintiff who is a volunteer, whereas it would be so if he or she had provided valuable consideration: Redman v Permanent Trustee Co of New South Wales Ltd (1916) 22 CLR 84 at 96. Thus, it is the presence of valuable consideration that ‘will attract the intervention of equity’: Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562 at 575; 240 ALR 204 at 215. However, in Conlan v Registrar of Titles (2001) 24 WAR 299 at 338, Owen J suggested that this rationale was ‘a little strange given that the common law would (and will) accept something that is entirely inadequate or lacking in actual value as being “good” consideration’.

Equity will not assist a volunteer • The maxim is primarily associated with ‘the rule that a

voluntary covenant is not enforceable in equity’: Corin v Patton (1990) 169 CLR 540 at 557

• Valuable consideration• In The Bell Group Ltd (in liq) v Westpac Banking Corporation

(No 9) (2008) 225 FLR 1 at 741, Owen J said:

• The notion of valuable consideration usually requires finding some economic worth as compared with something that is purely nominal, trivial or colourable … Valuable consideration is more than the nominal consideration that would be sufficient to support a common law contract.

Equity will not assist a volunteer

• Maxim doesn’t apply to gifts under Milroy v Lord• In Morris v Hanley [2000] NSWSC 957 at [35],

Young J said that ‘[w]hen one looks behind the maxim one can see that the real truth is that equity rarely helps a volunteer’.

• This stems from the fact that the maxim’s ‘precise scope is necessarily ill-defined and somewhat uncertain’ and ‘subject to certain clearly established exceptions’: Corin v Patton at CLR 557; ALR 12.

Equity looks to the intent rather than the form

• In Parkin v Thorold (1852) 51 ER 698 at 701, Lord Romilly MR said:

• Courts of Equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if it find that by insisting on the form, the substance will be defeated, it holds it to be inequitable to allow a person to insist on such form, and thereby defeat the substance.

Equity looks to the intent rather than the form

• Part performance• Express trusts• Rectification

Equity looks on that as done which ought to be done

• In Frederick v Frederick (1721) 24 ER 582 at 583, Lord Chancellor Macclesfield said that ‘where one for valuable consideration agrees to do a thing, such executory contract is to be taken as done; and … the man who made the agreement shall not be in a better case, than if he had fairly and honestly performed what he agreed to’

Equity acts in personam

• Earl of Oxford’s Case (1615) 21 ER 485 at 487 (see 1.34), where Lord Ellesmere said that equity could restrain a plaintiff at common law from enforcing a judgment of that court ‘not for any error or Defect in the judgment, but for the hard Conscience of the Party’.

• Extra territoriality

Equity acts in personam• Oz-US Film Productions Pty Ltd v Heath [2000] NSWSC 967

at [13], Young J explained this development as follows: • A court of equity basically exercises only in personam

jurisdiction. That is, it makes orders against people who are present in the jurisdiction or who have submitted to the jurisdiction. The in personam jurisdiction may, in proper cases, be exercised where the defendant has property in the jurisdiction over which the Court can enforce its order. In recent times, this jurisdiction has been further developed by the presumption that a defendant is considered to have property within the jurisdiction unless the evidence shows otherwise.

Equitable interests• Legal vs beneficial• DKLR Holdings Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW)

(1982) 149 CLR 431 at 463; 40 ALR 1 at 26, where Aickin J said:• If one person has both the legal estate and the entire beneficial interest in

the land he holds an entire and unqualified legal interest and not two separate interests, one legal and the other equitable. If he first holds the legal estate upon trust for some other person and thereafter that other person transfers to him the entire equitable interest, then again the first-named person does not hold two separate interests, one the legal and the other the equitable estate; he holds a single entire interest — he is the absolute owner of an estate in fee simple in the land. The equitable interest merges into the legal estate to comprise a single absolute interest in the land. It is a fundamental principle of both the common law and of equity that the holder of an estate in fee simple cannot be a trustee of that fee simple for himself for what he holds is a single estate, being the largest estate in land known to the law.

Complexity

• Does the equitable right give rise to the interest?• Or does the interest give rise to the right?• In National Provincial Bank Ltd v Ainsworth [1965] AC

1175 at 1247–8; [1965] 2 All ER 472 at 494, Lord Wilberforce, speaking of proprietary interests, said:

• Before a right or interest can be admitted into the category of property or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

Property?• Meagher, Heydon and Leeming suggest that the proprietary nature

of any equitable interest can be measured by reference to the following four criteria:

• 1. The power to recover the property the subject of the interest or the income thereof as compared with the recovery of compensation from the defendant payable from no specific fund.

• 2. The power to transfer the benefit of the interest to another.

• 3. The persistence of remedies in respect of the interest against third parties assuming the burden thereof.

• 4. The extent to which the interest may be displaced in favour of competing dealings by the grantor or others with interests in the subject matter.

• . R Meagher, J D Heydon & M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies, 4th ed, LexisNexis Butterworths, Sydney, 2002, p 126.

Fixed Beneficiaries under bare trusts

• Gummow J in Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281, as follows:

• Today the usually accepted meaning of ‘bare’ trust is a trust under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party

Rights of beneficiaries in unadministered estates

• Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694

• Mr Coulston died leaving a one-third share in his residue to his wife

• The estate included real and personal property• Mrs Coulson then died before her husband’s will

was administered• The Stamp Duties Commission of Qld sought to

tax her interest• Did she have an equitable proprietary interest?

Commissioner of Stamp Duties (Qld) v Livingston

• No• Viscount Radcliffe noted that, pending

administration of the husband’s estate, his executors held the whole of the property in the estate with no distinction between legal and equitable estates. The executors had the property to carry out the administration of the estate and not for their own benefit

• She had no property interest that could be taxed

More recent cases• In Re Maguire (deceased) [2010] 2 NZLR 845 at 851, Asher J said that ‘[t]he

executors [of an unadministered estate owe] the residuary legatees a fiduciary duty to carry out their administration tasks honestly and diligently, and the residuary beneficiaries … have remedies against the executors should they fail to carry out those duties’.

• n In re Hemming, decd; Raymond Saul & Co (a firm) v Holden [2009] Ch 313 at 324, the right of the beneficiary of the deceased’s residuary estate was described as ‘a composite right to have the estate properly administered and to have the residue (if any) paid to him as and when the administration is complete’.

• In the High Court in Kennon v Spry (2008) 238 CLR 3666 at 394; (251) ALR 257 at 276, French CJ described the right to proper administration of the estate as being ‘connected to a real expectancy of an interest in the property’.

• in Brennan v McGuire [2010] FCA 1443 at [108], Rares J opined that the interest of a residuary beneficiary in the assets of an unadministered estate ‘is probably best characterised as a financial resource, not as property’

Horton v Jones (1935) 53 CLR 475

• Horton looked after Jones who was old and sick. • In return Jones made an oral promise to leave ‘his

fortune’ to Horton. • The agreement was never reduced to writing. Jones

died and at his death had rights as next-of-kin in the unadministered estates of his four children. The estates of the children included land.

• After Jones’ death Horton sued his estate on the oral contract. The High Court of Australia held that Horton was not entitled to the benefit of the contract.

Horton v Jones (1935) 53 CLR 475

• Starke, Evatt and McTiernan JJ dismissed the claim on the ground that the contract was void for uncertainty.

• Rich and Dixon JJ looked at the case from the perspective of the statutory requirement that contracts involving land or interests in land had to be evidenced in writing to be enforceable. In this respect it was crucial to determine whether or not Jones’ rights in the unadministered estates of his children were equitable interests in land for the purposes of the statutory writing requirement eg Conveyancing Act 1919 (NSW) s 54A(1);

Rich and Dixon JJ• But it is not the consequence that no right of property

subsisted in the deceased, nor that no right of property subsisted involving an interest in land. The deceased possessed equitable rights enforceable in respect of the assets considered as a whole. It is true that he had no immediate right to possession or enjoyment and that his precise rights involved, at any rate prima facie, administration, and possibly necessitated conversion and calling in of investments. But, none the less, he had more than a mere equity. He had an equitable interest and it related to assets, which included interests in lands.

• So its property

Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306

• Schultz was bequeathed what was ultimately determined to be a remainder interest in a house.

• At the time of the testatrix’s death Schultz was an undischarged bankrupt. • The High Court of Australia ruled that even though the remainder interest took

effect only after Schultz was discharged from bankruptcy, it nevertheless vested in the Official Receiver, because the chose in action arose at the time Schultz was an undischarged bankrupt.

• Schultz did not, at the time of the testatrix’s death, have any legal or equitable interest in any of the assets of the testatrix’s estate, but did have the right to see that the estate was properly administered.

• Schultz had the expectation of gaining a property interest after administration of the estate was completed.

• When the remainder interest in the house took effect it vested in the Official Receiver, not Schultz, even though Schultz had by then been discharged from bankruptcy.

The spectrum of interests

• Equitable property or interest (equitable fee simple, mortgages, covenants etc)

• Personal Equities (Gill v Gill (1921) 21 SR(NSW) 400)

• Mere Equities (Latec Investments Ltd v Hotel Terrigal Pty Ltd (1965) 113 CLR 265)

Other mere equities• the right to claim an interest in property pursuant to proprietary

estoppel principles; • the right to obtain enforcement of an oral mortgage pursuant to

the doctrine of part performance (Double Bay Newspapers Pty Ltd v A W Holdings Pty Ltd (1996) 42 NSWLR 409);

• the right to the retransfer of land where, as a result of a unilateral mistake by a vendor, the area of land transferred exceeded the area stipulated in the contract of sale (Tutt v Doyle (1997) 42 NSWLR 10 at 15); and

• the right to a constructive trust pursuant to principles laid down by the High Court in Muschinski v Dodds (1985) 160 CLR 583; 62 ALR 429 and Baumgartner v Baumgartner (1987) 164 CLR 137; 76 ALR 75.