We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.
Nobody downloaded yet

Victorian Equity Law - Essay Example

Comments (0) Cite this document
The statement "Following the High Court's decision in Garcia v National Australia Bank Ltd1, it has been suggested that different principles are applicable to the setting aside of securities given by wives to support their husbands' borrowings, on the one hand, and securities given by non-wives to support third party borrowings, on the other", is accurate and the law of equity under a) doctrine of undue influence and b) Special Wives Equity justifies the differences…
Download paper
Victorian Equity Law
Read TextPreview

Extract of sample
Victorian Equity Law

This position arises in case of relationships between solicitor and client, parent and child, wife and husband which is known as fiduciary relationship, where trust and confidence exists. In this case, undue influence is presumed by law unless until it is proved contrary2.
The presumption of undue influence is recognised by court of law basically where fiduciary relationship exists believing that in fiduciary relationship one party succeeds in exerting unfair influence or undue influence over the other. The court of law recognises relationship between employer and junior employee, doctor and patient also to bring into the ambit of presumption of undue influence3.
In fiduciary relationship between wife and husband the creditor has a bounden duty before obtaining guarantee from the wife where wife is not a benficiary, is that a) to take reasonable steps to establish that her consent had been properly obtained, b) to discuss the facts with her c) to warn her of the consequences d) to suggest to take independent legal advise. Failing which, the transaction could be set aside by court of law4.
Equity law protects innocent persons from undue influence by giving an opportunity to rescind the contract executed under undue influence. Defence available to opposite party if the fact of non existance of undue influence is rebutted with evidence5.
Undue influence: Undue influence is classified into three types, a) actual undue influence, b) presumptive undue influence and c) proven undue influence. Actual undue influence is to be proved. Presumptive undue influence exists where trust and confidence is placed upon a strong party, especially in fiduciary relationships such as solicitor and client, religious adviser and disciple, physicians and patients, and parent and child. Proven Undue influence is similar to presumed undue influence except that in proven undue influence the trust and confidence is to be proved unlike in case of presumptive undue influence.

Special Wives Equity: The law provides special equity for wives to protect their interest from the undue influence of their husbands, who take advantage of the weaker position of their wives. Under this equity if the transaction is clouded by actual undue influence and the creditor has the knowledge of existence of marriage between the surety and the borrower the transaction will be set aside. The law further provides that even there is no actual undue influence the transaction is subject to be set aside at the option of the surety unless the creditor has taken sufficient measures to bring to her notice and inform her suitably the effect of the transaction. The law says in special wives equity constructive notice of undue influence or relationship of influence is immaterial, mere knowledge of existence of marriage is sufficient.

In Garcia case, which is relied on Yerkey v Jones8 the High Court has discussed elaborately on the principles based on the doctrine of Special Wives Equity. Clear and thorough study of the judgment in Garcia case shows how the different principle adopted in case of Wives in setting aside of security of wife is justified when compared to the non-wives security to third party, duly following the law of equity6.

Garcia vNnational Australia Bank ltd7: National Australian Bank ... Read More
Cite this document
  • APA
  • MLA
(“Victorian Equity Law Essay Example | Topics and Well Written Essays - 2250 words”, n.d.)
Retrieved from https://studentshare.net/miscellaneous/291940-victorian-equity-law
(Victorian Equity Law Essay Example | Topics and Well Written Essays - 2250 Words)
“Victorian Equity Law Essay Example | Topics and Well Written Essays - 2250 Words”, n.d. https://studentshare.net/miscellaneous/291940-victorian-equity-law.
  • Cited: 0 times
Comments (0)
Click to create a comment
MCCS ( Marine Corps Community Services )
These are all underneath one organizational unit, Marine Corps Community Service. The individual Marine and also the broader Marine Corps Family supports the MCCS. They assist MCCS achieve their goals through their strategic designing that integrate and align support services (Corps, 2000, p.
10 Pages(2500 words)Research Paper
Common law and Equity
The common law will be applied only where it is impossible to choose between the parties to the litigation in accordance with the principle that where there is equal equity, the law shall prevail. Therefore, in a situation in which there is no clear distinction to be drawn between parties as to which of them has the better claim in equity, the common law principle which best fits the case is applied (Hudson, 2004, p.9).
4 Pages(1000 words)Essay
Law Equity
Thus, ideology in this wise, is identified in what we do and not in what we know or are our beliefs. Our belief in an ideology is thus placed in advance of our taking into account that belief in "belief machines". An example of this is Althusser's Ideological State Apparatuses.
10 Pages(2500 words)Essay
The Victorian Law Reform Commission
The Final report was given to the Attorney-General on 6 October 2004. One of the recommendations in the report regarded the abolition of the partial defense of provocation. From my point of view, the reason for considering abolishing the defence of provocation is the fact that the laws in regard to defence of provocation are usually used for excusing or condoning male aggression towards women.
6 Pages(1500 words)Essay
Business Law - Equity
Since the judges could invent new writs any time they wanted, the Parliament decided to allow the judges writ one at a time. This system was unjust since even with the King's Bench having power over a case, the plaintiff might still not win if there was not a single form of action that combined the jurisdiction and power of the King's Bench.
4 Pages(1000 words)Essay
Equity And the Law of Trust
The party who creates a trust is known as the settlor who might make himself either the trustee or the beneficiary. Based on their creation, Trusts are classified as express, resulting or
8 Pages(2000 words)Essay
Trust & equity law
In an attempt to define the scope of charities, the court in the case of Commissioners for Special Purposes of the Income Tax v. Pemsel (1891)3, tried to set a definition of
6 Pages(1500 words)Essay
Equity law
rust, if it exists, Edward and Sandra will have to carry out the instructions laid out in the will to match the testator’s intent as far as possible. Hence, the testator’s intent needs to be determined, and if this is not clear, then the trusts that are implied under these
20 Pages(5000 words)Essay
as the factual scenario indicates that he purchased the property in the 1990s and compulsory registration came into force on 1st December 1990 and therefore the Land Registry Register will be the prime source of recourse for evidence of Charles’ title to the
4 Pages(1000 words)Essay
Deriving a Utopia from Dystopia in Nineteen Eighty-Four
The party overshadows his progress as his movements are monitored on the technological facilities through their leader, Big Brother. The party is dictatorial, and all of Oceania’s events are monitored under the strong will of the leaders. The leading party is seen to exert
5 Pages(1250 words)Essay
Equity law
Accordingly as Halliwell (1997) portrays, equity continues to be wholly unaffected by any existing state laws, mitigating the prevailing rigors of common law. This allows courts to utilize existing discretion, when applying justice in
5 Pages(1250 words)Essay
Let us find you another Essay on topic Victorian Equity Law for FREE!
Contact us:
Contact Us Now
FREE Mobile Apps:
  • About StudentShare
  • Testimonials
  • FAQ
  • Blog
  • Free Essays
  • New Essays
  • Essays
  • The Newest Essay Topics
  • Index samples by all dates
Join us:
Contact Us