Equity & Common Law

Question 1

What is common law?

Answer 1

A system of law based on the rule of precedence and custom instead of statutes

Question 2

Explain the doctrine of precedence

Answer 2

• a judge must follow the decisions of the courts above them if the facts of the case are the same.
• if the precedence was set in the same or a lower court, then the previous ruling should be considered but does not have to be followed.

Question 3

list the courts of NZ in order of the hierarchy from highest to lowest

Answer 3

• supreme court
• court of appeal
• high court
• District courts

Question 4

Explain the key ideas of the hierarchy of courts

Answer 4

• cases are heard in the appropriate court based on their complexity and significance
• Lower courts are bound to follow higher courts
• higher courts have the power to overturn/modify lower courts’ decisions

Question 5

History of the common law

Answer 5

• originally county courts applied local custom but were inconsistent between areas.
• feudal courts replaced this but still applied local custom
• gradually king’s court developed, with a unified system of law

Question 7

explain the origins of equity

Answer 7

• common law = ancient customary law of England
• it was often perceived as too harsh and/or unfair
• people would appeal to the king with their issues until the lord chancellor was appointed as a legal specialist.
• Slowly, a principled basis for dealing with complaints was developed which came to be known as equity law.

Question 8

What are the two jurisdictions of equity law?

Answer 8

Exclusive jurisdiction and Auxillary jurisdiction

Question 9

Briefly explain exclusive jurisdiction

Answer 9

Deals with concepts and roles that are unfamiliar to common law.

it is developed by the courts of equity.

e.g. trusts - where property is owned at law by party A forteh benefit of party B. This concept is completely unknown to the common law, it is solely an invention of equity

Question 10

Briefly explain Auxillary jurisdiction

Answer 10

supplements teh common law. Occurs when equity acts to supplement an existing common law right.

Question 11

What are the maxims of equity?

Answer 11

1. equity will not suffer a wrong without a remedy
2. he/she who seeks equity must do equity
3. he/she who comes to equity must come with clean hands
4. equity favors the diligent i.e. if you want equity to intervene you must act promptly
5. Equity acts in persona i.e. an equitable order is made against a person wether that is a human, company, or a trust.

Question 12

what is a remedy under the common law?

Answer 12

An award of damages known as a monetary sum ($$$).
Note: the specific amount of money can be hard to determine.

Question 13

How long do you have to sue for remedy under the common (monetary sum) ?

Answer 13

6 years

Question 14

What are the two possible remedies under equity?

Answer 14

1. mandatory injunction - court orders you to return what you gained (e.g. give back the neighbors’ chicken)
2. prohibitory injunction
   court orders the party in the wrong to stop doing whatever is harming the other party (e.g. stop selling the off-brand laptops)

Question 15

what are the two purposes of both common and equity law?

Answer 15

1. to enforce the rights of the party that have been wronged
2. alleviating the conscience of the wring doing party

Question 16

How does equity soften the harshness of the common law

Answer 16

It priorotizes fairness and ethics over monetary priorities.

That’s a great question!!