Modern Equity: Revolution or Renewal from Within?

Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2018)

ANU College of Law Research Paper No. 19.14

21 Pages Posted: 18 Jul 2019 Last revised: 19 Jul 2019

Date Written: December 19, 2016

Abstract

Peter Birks spearheaded a revolution in thinking about Equity. This paper questions how successful that revolution has been. Two narratives of modern Equity are identified: the revolutionary narrative commenced by Birks and one counter-narrative that is apparent in contemporary case law. Three particular strands of these narratives are then discussed. They concern the integration of the Common Law and Equity; conscience-based reasoning; and judicial method. Illustrations are taken largely from the law governing third party ancillary liabilities that protect equitable rights. Claims against recipients of property protected by Equity, particularly the claim for unconscionable retention of benefit following receipt of misappropriated trust property, are used to illustrate the integration of the Common Law and Equity and the use of conscience-based reasoning. Judicial method is discussed in the context of equitable accessory and recipient liability. Reference is also made to the doctrine of undue influence, the change of position defence, mistaken gifts and private law claims tainted by illegality.

Keywords: private law, equity, third party liability, undue influence, mistake, illegality

Suggested Citation

Ridge, Pauline, Modern Equity: Revolution or Renewal from Within? (December 19, 2016). Sarah Worthington, Andrew Robertson and Graham Virgo (eds), Revolution and Evolution in Private Law (Hart Publishing, 2018), ANU College of Law Research Paper No. 19.14, Available at SSRN: https://ssrn.com/abstract=3421793

Pauline Ridge (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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