Equity In New Zealand Case Study

1208 Words 5 Pages
The history of Equity in New Zealand, its relationship with common law, and the ‘fusion’ debate

The equitable jurisdiction was defined in 1932 as “that body of rules administered by our English courts of justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as courts of Equity”. The New Zealand legal system is based on English common law and therefore the principles of Equity as they stand today are rooted in English history. However, following the implementation of the Judicature Act 1908 (NZ) and subsequent legal developments, the views of the New Zealand courts with respect to the intermingling of equitable and common law remedies can be observed to now be markedly
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Initial decisions of Chancery were therefore varied, as chancellors were not strictly bound by precedent as were the common law courts. However, for the sake of proper justice, equitable principles were necessary to ensure consistency between cases with similar facts. Chancellors also dealt with recurring issues and developed routine attitudes, which gave rise to settled equity doctrines. This can be thought of as a process of objectification, whereby the individual conscience of the chancellor became less important, and Equity became a jurisdiction more similar in procedure to the common law than it had been previously. It managed, however, to retain some flexibility, and ran parallel to the common law with equal legal standing until the Earl of Oxford’s case, where it was declared by King James that principles of Equity should take precedence. This was codified by the Judicature Act 1873 (UK) which combined the historically separate courts of common law and Equity for a more coherent judicial …show more content…
Day v Mead extended the common law notion of contributory negligence to equitable compensation as a way of achieving practical justice. For similar reasons, in the case Aquaculture v NZ Green Mussel Co, it is held that the common law remedy of compensatory damages may be legally awarded in New Zealand courts for breach of an equitable duty. According to Cooke P, “for all purposes now material, Equity and common law are mingled and merged”, and therefore a “full range of remedies should be available to the court irrespective of whether they originated in common law, Equity or statute”. There has even been some discussion about the idea of repealing s 99 of the Judicature Act (NZ) in order to facilitate this

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