“How far the remedies or causes of action should be kept discrete is debatable, but it would seem excessively legalistic to insist on concurrent duties. What is important is the substance of the duty falling on the particular defendant in the particular circumstances, to ascertain which it may be necessary to consider various possible sources – tort, contract, equity, statute…For breach of these duties, now that common law and equity are mingled, the Court has available the full range of remedies…What is most appropriate to the particular facts may be granted”:
Cooke P (as his Lordship then was) in Mouat v Clark Boyce  2 NZLR 559 at 565-566.
Do you agree that maintaining the concurrent but separate obligations and remedies of common law and equity is “excessively legalistic” or do you believe that there is a sound basis for such a distinction? Support your view with case law wherever possible.
This paper argues that as equity developed from a court of conscience with ‘trust’ as its guiding principle, there is no historical foundation for its fusion or ‘mingling’ with the common law. Instead of being excessively legalistic to insist upon concurrent duties, it argues that that nature of equitable obligation and remedies are restorative and serve a distinctly different purpose from the common law and should remain separate. Pursuant to this, the case law demonstrates the different means by which the court will determine an equitable remedy to one of common law, and that compensation is awarded to put the aggrieved party in a position that she would have been in had the equitable obligation not been breached. It focuses specifically upon judgments where exemplary damages have been awarded for breaches of equitable duty, and looks at the reasoning of the courts when allowing such damages. By considering the obiter of certain judgments from New Zealand and Canada, it concludes that they are marked by confusion and uncertainty and exacerbated by a lack of reasoning beyond claiming the merits of fusion. Fusion, it is argued, appears to be an unsubstantiated and almost circular process through which a judgment can be validated with no real explanation of how it be dependably applied. Finally, it turns to a seminal Australian case in which the courts asserted their own position on the award of exemplary damages in equity.
II THE HISTORICAL FOUNDATION OF EQUITY
Equity, ‘the saving supplement and complement of the common law’ was originally administered by the Court of Chancery, ‘a court of conscience’. Getzler writes that ‘trust’ was part of the greater project of the Chancellors to remedy the inability of the common law procedures but most importantly to ‘get at the fine detail of fact explaining parties’ minds and actions’.
Its unifying principle is described as one of conscience, perhaps best demonstrated by the maxim that ‘equity acts in personam’. This maxim is said to date back to the Earl of Oxford’s Case where Lord Ellesmere said that equity could restrain a plaintiff enforcing a judgment in the court of common law ‘not for any error or Defect in the judgment, but for the hard Conscience of the party’. Despite procedural amalgamation with the common law courts through the Judicature Acts, in Australia, it has not been viewed as fused in any substantive way with the common law. The early case Salt v Cooper clearly rejected such a notion when Jessl, M.R wrote, that the assimilation of the transactions in equitable and common law business under the Judicature Act of 1873 was not a fusion as some suggested but ‘the vesting in one tribunal the administration of Law and Equity in every cause, action or dispute which should come before the tribunal. That was the meaning of the Act’.
III EQUITY AND REMEDY
Equity is concerned, not only to compensate the plaintiff, but also to enforce the trust which is at its heart. Equitable remedies are thus responsive and amenable to...
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