The Special equity relating to wives whom act as guarantors of their husband’s debt was refined by Dixon J who gave the leading judgment in the case of Yerkey v Jones. The essence of the principle was that if a wife who is the surety of her husband’s debt doesn’t understand essential information, due to the fact that the creditor has relied on the husband to inform his wife, and not dealt with her personally, the wife has a prima facie right to have the debt set aside. The principle has faced scrutiny’s about being 'discriminatory' , that it patronizes married women as well as failing to provide equal protection to both sexes. However, in the High Court case of Garcia v National Australia Bank Ltd the principle in Yerkey v Jones was revitalized by expanding the doctrine of unconscionability to include a special disability, suffered by a wife who acted as guarantor upon the circumstances in which the special equity principle applies. To reach their decision, elements of the special equity were applied in Garcia v National Australia Bank Ltd.
A Lack of Tangible benefit and understanding
An important element of the special equity established in Yerkey v Jones is that there is no physical benefit to the wife from the transaction. In Garcia v National Australia Bank Ltd in applying the equitable principle, the trial judge found Mrs Garcia as a volunteer who, despite being the director and shareholder of her husbands company, had nothing to gain directly or even indirectly from the transaction she guaranteed. In application of the special equity Mrs Garcia gained no real financial benefit from entering into the transaction and that any benefit for Mrs Garcia to gain as a guarantor would depend on remaining on good relations...
... middle of paper ...
... concluded on this basis that the court was not bound to apply the 'precedential strait-jacket' of Yerkey v Jones as a legal principle, He disagreed with the “equitable presumption ” expressed by Dixon J that catered for only married women, he instead proposed a broader principle should exist not confined to one group. Despite his judgment, The Majority of the High Court judges endorsed the principle and applied it to the case to reach a decision in favour of Mrs Garcia, and her entitlement to equitable relief. The majority found that because of the marked number of women in relationships with disparities between parties, Yerkey v Jones as an authority should be considered. The decision in Garcia provides High Court endorsement for the special equity, which will provide legality to protect those within a domestic relationship, who take on commercial matters.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
In Palgo Holdings v Gowans , the High Court considered the distinction between a security in the form of a pawn or pledge and a security in the form of a chattel mortgage. The question was whether section 6 of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) (‘the 1996 Pawnbrokers Act’) extended to a business that structured its loan agreements as chattel mortgages. In a four to one majority (Kirby J dissenting) the High Court found that chattel mortgages fell outside the ambit of section 6 of the 1996 Pawnbrokers Act. However, beyond the apparent simplicity of this decision, the reasoning of the majority raises a number of questions. Was it a “turning back to literalism” as Kirby J suggested, or was it simply a case where the court declares that parliament has missed its target?
In the case of Yerkey v Jones (Yerkey v Jones), the judgment of Dixon J established a principle that operates in certain circumstances where a married woman provides a guarantee for her husband. While the principle has come under a significant amount of criticism in more recent times, it was reapplied in the case of Garcia v National Australia Bank .
In conclusion, "To strive for justice, one must be a person of principles. There is no single principle that one can use to achieve justice in the resolution of legal disputes." This is true because one must use a wide array of principles that come from moral and legal perspectives in order to gain a resolution. Unfortunately society has deemed it necessary to incorporate social stratification into some of these principles. The law tends to have more leniencies to those who have higher positions in society. With as many classes as our society today, it is impossible to find a jury of peers. Each person has their own idea of cultural norms, legal and moral principles, and a socio-class in which they belong to. Therefore, I contend that social stratification, whether it is between races, or economical levels, will always have some role in legal decisions.
-Equity: seen over by the Chancery Court; designed to give relief from strict decisions made by the common law
Herring J., ‘The Human Rights Act and the welfare principle in family law – conflicting or complementary?’ [1999] C.F.L.Q.11 (3), 223-235
Imagine Kirsty and Marc, a young couple who resort to robbing a house in a desperate attempt to make money. They are caught, charged with the same crime and given the same sentence, except for one thing: the male dominant world we live in does not stop at the courtroom door. Marc is sent to a medium security prison one hour from his family with every opportunity to earn his way into a minimum-security facility. He spends his days learning to cook in the kitchenette and has access to basic necessities like aftershave or hairspray. Meanwhile, Kirsty walks into her frigid six-by-ten foot cell with bars for a door, a toilet in plain view and not a trace of sunlight. She is twelve hours from home with no hope of changing location since there is nowhere else to go. The stories of rapes, beatings and riots told by her new neighbours are endless. Kirsty realizes that the only way for her to survive this place is to oppose nature and forget what it is to feel. This is discrimination against women as they are penalized more severely than men for committing less crime. How can women strive for equality when they cannot attain justice in the justice system itself? The controversy over the gender bias goes beyond the "too-few-to-count" syndrome as Sally Armstrong calls it, it is a question of women's constitutional right to be treated equally.
The Australian Human Rights Commission (2011:p1) states that “Gender equality is a principal that lies at the heart of a fair and productive society”. If gender equality is the heart of a fair and productive society than the laws and regulations in place must be the key in maintaining a fair and productive society. If regulations and laws are not frequently discussed, debated and reviewed than issues such as sex discrimination in particular can be sufficiently dealt with or ignored. The Carter v Linuki Pty t/as Aussie & Anor [2005] NSWADTAP 40 (22 August 2005) will be used to demonstrate the regulations surrounding sexual discrimination. In this paper a thoroughly investigation into the recent changes in laws and regulations encompassing sexual discrimination will be conducted in relation to the case provided. By using the elements of the case the Sex Discrimination Act 1984 (Cth) (SDA) will be applied to the facts presented in order to explain the regulation surrounding this issue. Since the case involves a work related situation where the employee was discriminated on the basis of gender the SDA will be used. A Brief description on the impact of exclusion will be provided to demonstrate the causal link between exclusion and gender discrimination. Firstly, the case’s elements will now be analysed.
Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
According to Corporation Act 2001 s124(1), it illustrates that ‘’A company has the legal capacity and powers of an individual both in and outside the jurisdiction” . As it were, company as a legal individual must be freely with all its capital contribution shall embrace liability for its legal actions and obligations of the company’s shareholders is limited to its investment to the company. This ‘separate legal entity’ principle was established in the case of Salomon v Salomon & Co Ltd [1987] as company was held to have conducted the business as a legal person and separate from its members. It demonstrated that the debt of company is belonged to the company but not to the shareholders. Shareholders have only right to participate in managing but not in sharing the company property. Besides ,the Macaura v Northern Assurance Co Ltd [1925] demonstrates that the distinction between the shareholders and company assets. It means that even Mr Macaura owned almost all the shares in the company, he had no insurable interest in the company’s asset. The other recent case is the Lee v Lee’s Air Farming Ltd [1961] which illustrates that the distinct legal entities between employee ad director allows Mr.Lee function in dual capacities. It resulted that the corporation can contract with the controlling member of the corporation.
It has been generally acknowledged that the doctrine of proprietary estoppel has much in common with common intention constructive trusts, i.e. those that concern the acquisition of an equitable interest in another person’s land. In effect, the general aim is the recognition of real property rights informally created. The similarity between the two doctrines become clear in a variety of cases where the court rely on either of the two doctrines. To show the distinction between the doctrines, this essay will analyse the principles, roots and rationale of both doctrines. With reference to the relevant case law it will be possible to highlight the subtle differences between the doctrines in the cases where there seems to be some overlap. Three key cases where this issue surfaced were the following: Lloyds Bank Plc v. Rosset (1991), Yaxley v. Gotts (1999) and Stack v. Dowden (2007). This essay will describe the relevant judgements in these cases in order to show the differences between the two doctrines.
...udes by stating in it’s opinion for Goesart v. Cleary 1948, that “Michigan could, beyond question, forbid all women from working behind a bar” (Goldstein 102 ). However, in 1976 the Supreme Court “refused to approve laws which were based on archaic and overbroad generalizations or on old notions of role typing” (Mezey 19). Clearly, great strides have been taken towards anti stereotypical legislation, in roughly a quarter of a century. Legal equality for women is in large part due to the Women’s Rights Project’s litigation of the nineteen seventies and the legal genius of Ruth Bader Ginsburg who made the Court scrutinize sex Discrimination cases much more closely. The result is that the Supreme Court must “test policies and practices by asking whether they integrally contribute to the maintenance of an underclass or a deprived position because of gender” (Ginsburg 20).
When developing a valuation for Richards Building Supply Co, there is key aspects of the prevailing practices and procedures used by financial theorists and valuation consultants to the assessment of cost of capital in order to apply it as a present value discount rate in a traditional present value model. The main structure of business valuation is cost of capital. Key statement states “Value today always equals future cash flow discounted at the opportunity cost of capital (google.com)”. When defining Cost of capital “refers to the opportunity cost of making a specific investment. It is the rate of return that could have been earned by putting the same money into a different investment