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In this seminar, we discuss recent developments in equitable remedies and defences and the current controversies and debates surrounding them. For that reason, the information contained herein is not intended to be treated as a complete, stand-alone work that provides an overview of all things equitable (so to speak). There are very good texts that serve just that purpose.1 To some extent, recent developments and current controversies can only begin to be analysed in any meaningful way when they are placed within their context and thus we will endeavor to provide summaries of the existing law and understanding where necessary.

A significant underlying question for any work that purports to consider only the principles of equity is whether it is appropriate to be tied to the historical origins of a duty or remedy anymore at all. What is more important is the substantive nature of the duty or remedy being considered: for example, is the duty undertaken such that it is a species of consensual obligation that should have similar traits to contract? Or is the duty imposed and, in such case, what is the justification for its imposition? Can it be contracted out of? Should the voluntary or imposed nature of the duty affect the sort of remedy that is available? This move from a jurisdictional-based conception of the law to one that is concerned with relationships between duties and comparing and contrasting common law doctrines with equitable ones has already begun. The jurisdictional divide is slowly abandoned in favour of an approach that focuses on what a particular rule or principle is concerned with to determine its content rather than which court it originated from.

We have much sympathy with such an approach, and indeed much of our analysis here shows less of a concern with maintaining a jurisdiction distinct from the common law and more with identifying the underlying substantive reasoning of any given rule or principle and using analogies that may shed some light on their meaning and application. Nevertheless, the law is not yet at a stage where it is ready to abandon entirely categories based on common law and equity in favour of categories based on the nature of the duties, although much work has been done on this and is gaining momentum. Thus for the purpose of providing an update to practitioners working across different fields, this seminar is focused on developments in topics traditionally understood to belong to that system of law that we call equity.

This seminar adopts the structure of a simple private law claim: duty, breach, remedy and defence. We will comment on recent issues arising in relation to duties, remedies and defences.2

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1    See, for example, A Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009); J McGhee, Snell’s Equity (32nd ed, Thomson, 2010); P Pettit, Equity and the Law of Trusts (12th ed, OUP, Oxford, 2012); Meagher, Heydon and Leeming, Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies (4th ed, LexisNexis, Australia, 2002).
2    Significant parts of this seminar are based on A Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009). Permission for any reproduction is gratefully acknowledged.
Dr Andrew Butler Jessica Palmer
Dr Andrew Butler
Partner
Russell McVeagh		 Jessica Palmer
Faculty of Law
University of Otago
Dunedin

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