Equity law in New South Wales Essay

Custom Student Mr. Teacher ENG 1001-04 12 January 2017

Equity law in New South Wales

The Legal system in Australia follows the laws that were placed by the British as they fused most of their cultures and traditions on the people when they colonized the aboriginals. Since in England the laws of equity were mostly used together with the common law, then it was certain that they would use the same equity rules in NSW. Enacting these laws on a new country and state was not easy as the people were opposed to the idea of following English law. They viewed this as an unfair practice as they were governing their land and every aspect of their lives and on top of it they were going to impose their judicial systems.

With time, they were overpowered by the British but with time; they saw sense in the laws that were being passed. The laws of England were thus enacted to be used in the judicial systems across Australia and this included New South Wales. Equity was one of the laws that were used in England to supplement the common laws that governed the land. Equity is as much important in New South Wales as it still is in England because it has helped in shaping the judicial system. The first courts in New South Wales (NSW) were adaptive to the needs of the society and were more so military in character.

There was no formal process of proceedings and the powers of the governor were restricted. As time elapsed, the Supreme Court came to being to solve criminal and civil cases just as the way the King’s Bench operated in England. The equity law was going to bring about order in a system that was not fair to some people and they were simply going to add positive laws that would ensure that NSW laws were stronger, more practicable and could give varied solutions to the various problems in place. Equity law in most Australian states was administered since early times by the Supreme Court.

Most states followed the judicature system where the both the common and equitable lawsuits were heard in the same court. New South Wales started incorporating the equity law in to its legal system in 1972 where specialists’ practitioners who mastered the law oversaw the proceedings which are still followed till today. This has increased the popularity of the equity law which has enabled the development and enhancements of the common law doctrines. Equity law is made on the fundamental principle of enhancing equitable in legal issues .

The study of the equity law principles as used in England has really helped in the restructuring law procedures and making them simpler for the law enforcers as well as the parties involved to understand. One of the areas that the equity law has improved on in NSW is the contract law. The contract law has its foundations on the English common law practices with a few modifications in specific areas. The contract laws as used in the state are also made upon the various bids that have been passed in the Australian parliament.

Equity has helped in the formation of contract law and the procedures that need to be followed when a particular party breaches the contract. The laws formed are what are mostly used to govern trade transactions local, regional and international and employment contracts under the labour laws. In solving contact cases, the NSW courts, they usually look at how several cases were or are still handled in England courts such as in their court of appeals, Kings Bench, House of Lords UK and Courts of Common Pleas UK among other courts so that they can apply the same principles.

Most of New South Wales acts had provisions to give relief against some contract obligations and sometimes to reform the contracts. That is why over the century there have been contractual reforms to give freedom to the contract theory that sometimes would dent interference in other forms of laws. Equity therefore has played a major part in unjust enrichment and restitution of the law. Property laws also follow equitable principles in New South Wales. This is taken from how in England there was a need for people were supposed to be returned to the original positions they were in before damage or loss of property took place.

Equity therefore, offers practicable terms of solving lawsuit cases. For example, when a person takes someone’s property and they do not return it. The owner filing the case would like to have it back instead of just being compensated in monetary terms. This is in contract to the common law system which will only make sure that the plaintiff is paid in replace for the property. Therefore, equity is not achieved in this case. This is applicable in the way property laws have been developed in NSW where in 1987 the Residential tenancies Act was placed giving certain rights to the owners of land or property and their tenants.

This was in the form of an agreement that made sure that the tenants were not charged high rents and landlords gained from the rent they received. An Act for combining certain laws relating to land title deeds and assignments was enacted in 1898 in NSW. The Real Property Act was an improvement of the 1898 laws that made legal provisions for the transfer of land and their titles. In 1919, the Conveyancing act was made to combine the property laws and enhance conveyancing and other acts that influenced it.

In 1994, the Retail Leases Act was used to add onto the property laws so as to create formal laws that aided leasing of retail shops while stating the rights of the lessors and lessees. Equity was established in the corporations’ law and was used in England to govern and address the various problems that business entities faced. Some of the underlying principles that were used are seen in the way corporation cases are solved in the NSW; for instance, in the termination of business practices like partnerships and mergers and the amount of compensation that either party is supposed to receive.

Nowadays, the equity law in New South Wales is enforced under the Law Reform (Law and Equity) Act of 1972. It is here that the rules of equity and also the law are listed and in case there are conflicts, just as before, the equity rules prevail. This act is continually amended by the State governor as need arises. The laws of England are therefore necessary in New South Wales because it is essentially an English state. The Supreme Court in NSW which is the highest level of court in the state handles both civil and criminal cases and follows the equity law.

In mid 19th century, the colonialists in this case the British used a lot of the equity law in passing judgments and they even went further to pass the Colonial Legislature Act and the Justice Act which led to the establishment of the Equity law system. In NSW, the equity law is all about fairness. The equity principles are still being used in amending some of the constitutional laws that apply to the rest of the country and are also applicable to the state.

The equity law system is important in NSW as it gives the judge the power to make valid decisions and pass sentences based on evidence as well as use morally agreed practices that will ensure that the plaintiff and defendant have been given an equal opportunity to defend themselves. One area that equity law is been use in is in the recovery of debts which are mainly faced by in national and also international trade transactions. Here, it states what actions are taken for people w ho breach contracts, the rights to own property as well as problems that face various business organizations like partnerships, corporations and trusts.

From seeing how the equity law has helped in the administration of justice, we see that there is more to just learning the rules that are used in equity law but there is also a need to understand the history because the laws are developed as time, events and the context in which they are applied change. It is important to study the history of the law though found in a foreign country as it enables legal practitioners and law students to understand its formation and why equality is such a common area of discussion.

Moreover, reading about the history as it is applicable in England enables NSW legal makers to know how similar cases can be solved in the state and even define new ways of solving legal issues thus strengthening the equity law. Conclusion Equity in New South Wales has changed in time and distance but this system of law has borrowed a lot from legal practices that are used in England. As the State becomes politically independent, it has developed its own laws that are used to decide over cases but they still take into consideration the common law practices and equity principles.

These laws have enabled proper governance and the administration of justice as the equity laws have enabled individuals to defend their rights, own property, enter into proper formal transactions and continually amend the laws for the good off all New South Welsers. Equity law in NSW is therefore backed by a strong history and revolution that makes it practicable in law thus enhancing the perfection of modern equity.

References

Abel, R. L. & Lewis P. C Lawyers in Society: The Common Law World, Beard Books, 1988 p. 265 Comyns, J. , Hammond, A. & Day T. A Digest of the Laws of England, 5th Ed.

Collins & Hannay, 1826 p. 405 Cope, M. & Queensland University of Technology. Equity: issues and trends: the importance and pervasiveness of equitable doctrines and principles in modern private, commercial, and public law. Federation Press, 1995 p. 156 Gilbert, G. & Great Britain Court of King’s Bench. Cases in Law and Equity: Argued, Debated and Adjudged in the King’s Bench and Chancery, in the Twelfth and Thirteenth Years of Queen Anne. Catherine Lintot, 1760 p. 27, 53 Great Britain Courts & Leach T. Modern reports; or, Select cases adjudged in the courts of King’s bench, Chancery, Common pleas, and Exchequer …

: 1663-1755, 5th Ed. G. G. J. and J. Robinson, 1796 Hale, M. & Gray C. M. The history of the common law of England, 3rd Ed. University of Chicago Press, 1971 Kercher B. Debt, seduction and other disasters: the birth of civil law in convict New South Wales Federation Press, 1996 Navado lawyers and solicitors: Strategic solutions, dynamic people. http://www. navado. com. au/Practice-Areas/Equity-Law-Trusts-Law/ Retrieved on April 6, 2009 Neal D. The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales Cambridge University Press, 2002 p. 75

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