The Place of Equity and Equitable Remedies in The Contemporary Common Law World

The place of equity and equitable remedies in the..., L.Q.R. 1994, 110(Apr),...
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The place of equity and equitable remedies in the contemporary
common law world
ANTHONY MASON.*
Journal Article
Law Quarterly Review
L.Q.R. 1994, 110(Apr), 238-259
Subject
Equity
Keywords
Common law; Equitable remedies
*L.Q.R. 238 VISCOUNT Simonds, it is said, cavilled at the description of equity as an appendix to the common law.1 His
objection was that the description did not do justice to the important corpus of substantive law which the Court of Chancery
brought into existence. Had his Lordship survived to witness the developments in equitable doctrine that have taken place since
he voiced the objection almost 50 years ago, he would have regarded the description as an utterly misleading statement of
equity's place in the scheme of things today, accurate though it may be as an historical explanation of equity before the Judicature
Acts. By "Equity" I mean the distinctive concepts, doctrines, principles and remedies which were developed and applied by the
old Court of Chancery, as they have been refined and elaborated since.
Equitable doctrines and relief have extended beyond old boundaries into new territory where no Lord Chancellor's foot has
previously left its imprint. In the field of public law, equitable relief in the form of the declaration and the injunction have played
a critical part in shaping modern administrative law which, from its earliest days, has mirrored the way in which equity has
regulated the exercise of fiduciary powers. Equitable doctrine and relief have penetrated the citadels of business and commerce,
long thought, at least by common lawyers, to be immune from the intrusion of such alien principles. Equity, by its intervention
in commerce, has subjected the participants in commercial transactions, where appropriate, to the higher standards of conduct
for which it is noted and has exposed the participants to the advantages and detriments of relief in rem.
A similar effect has been achieved by resurrecting and expanding the traditional concept of unconscionable conduct as a basis
for relief and recognising that the constructive trust is both an institution and a remedy. The concept of unconscionable conduct,
along with the recognition of unjust enrichment which is partly a derivative of unconscionable conduct, has been the source of
the recent rejuvenation of equity. Moreover, in the reshaping of branches of the law which *L.Q.R. 239 straddle both common
law and equity which has resulted in greater unity of principle, we have discovered that equity and the common law share much
in common. The notion of unconscionability underlies some common law doctrines as well as equity. Estoppel and restitution
are examples which come to mind. Here the interaction between common law and equity has resulted in dynamic development
of legal principle, resulting in greater symmetry. Equity and common law now import from each other, just as they can and do
import from other systems of law and learning.
In some fields of law, equitable concepts and doctrines have been given an expanded operation by statute. Remedial statutes
designed to protect a vulnerable class of persons, e.g. borrowers and consumers, often provide for relief against onerous
transactions which have an element about them of what is harsh and unconscionable. It very often happens that statutory
recognition and extension of the equitable ground for relief sparks off further development of the basic equitable concept or
doctrine.
Equity has yielded to the common law some ground that conceivably it might have claimed for itself. The boundless expansion of
the tort of negligence, based on the existence of a duty of care to one's neighbour has, in all probability, stultified the development
of equitable compensation for breach of fiduciary and other equitable obligations. Equitable compensation, of which I shall have
more to say, is now coming to the fore but its long sleep since 1875 or, more accurately, 1914 (when Nocton v. Lord Ashburton
2
was decided) may be attributed to the rise of negligence and the extended notion of the duty of care.
© 2021 Thomson Reuters. 1

What are the reasons for the onward march of equity after the physicians had pronounced it incapable of childbirth? They are,
I think, many and varied, some of them not being of general application. Two can readily be identified. First, there were the
Judicature Act 1873 (U.K.) and its counterparts in other jurisdictions ("the Judicature Acts"). By providing for the administration
of the two systems of law by the one system of courts and by prescribing the paramountcy of equity, the Judicature Acts freed
equity from its position on the coat-tails of the common law and positioned it for advances beyond its old frontiers. Secondly,
the ecclesiastical natural law foundations of equity, its concern with standards of conscience, fairness, equality and its protection
of relationships of trust and confidence, as well as its discretionary approach to the grant of relief, stand in marked contrast
to the more rigid formulae applied by the common law and equip it better to meet the needs of the type of liberal democratic
society which has evolved in the twentieth century.
*L.Q.R. 240 The effect of the Judicature Act and its counterparts
It is remarkable that the common law has remained for so long impervious to the beguiling charms of equity. More than 100
years elapsed after the introduction of the original Judicature Act before lawyers became receptive to the notion, still regarded
as heretical by some Australian commentators, that equity and common law are capable of constituting together a single body
of law rather than two separate bodies of law administered together. The belated recognition of this truth by the House of
Lords in United Scientific Holdings Ltd. v. Burnley Borough Council, 3 particularly Lord Diplock's extreme statement that the
waters of the two streams "have surely mingled now,"4 has excited exasperation.5 There is perhaps more merit in Lord Simon
of Glaisdale's prediction6:
"It may take time before the waters of two confluent streams are thoroughly intermixed; but a period has to come when the
process is complete."
Legal reasoning by reference to metaphor is often uninformative and sometimes productive of confusion. Lord Diplock's
comment in United Scientific is vulnerable to this criticism. It is not at all clear to me what is meant by the mingling of the
waters of the two streams and how that mingling, assuming it to have taken place, actually assists us in deciding particular
cases. The comment cannot mean that relief by way of damages, awarded according to common law principles, is available
in every case where there is a breach or violation of a purely equitable duty or obligation. Nor can it mean that the equitable
remedies of specific performance and injunction are more freely available simply because the two bodies of law have, or are
thought to have, mingled.
It is possible that Lord Diplock intended to convey no more than that the Judicature Acts did not prohibit the continuing
development by judicial decision of the substantive principles of common law and equity. Indeed, the Judicature Acts, by
providing for the administration by the same courts of the two bodies of law, naturally encouraged that kind of development
and, in particular, convergence of the two bodies of law. That was the view taken by Sir Robin Cooke P. in Day v. Mead. 7 And,
in Re Australian Elizabethan Theatre Trust, 8 Gummow J. remarked that it was
*L.Q.R. 241 "the striking feature of the Quistclose 9 litigation … that whilst previously it might have been thought that debt
and trust were distinct and disparate norms, it was thereafter clear that in a given case the transaction under analysis might
bear a dual character."
There are some English decisions which appear to support the view that his Lordship's "mingling" statement should be taken
at face value, at least to the extent that common law damages can be obtained for breach of fiduciary duty. Salmon J. awarded
damages for breach of such an obligation in Woods v. Martins Bank Ltd., 10 a decision which was subsequently approved by
the Privy Council.11 The Court of Appeal apparently took the same view in In re Leeds and Hanley Theatres of Varieties Ltd.
12
in relation to damages under a Lord Cairns Act type provision. But, the orthodox (and the better) view, as appears below,
is that equitable compensation, not common law damages, should be awarded for breach of fiduciary duty. To say that is not
to deny that, in some cases, it may be appropriate to award compensatory damages for what has traditionally been regarded
as an equitable obligation. In this respect, the traditional view that compensatory damages were never awarded in equity has
recently been questioned.13
Notwithstanding Sir George Jessel's early attempts to give the Judicature Act a wide-ranging substantive operation so that the
owner of equitable rights became entitled to relief at common law,14 his expansive opinion of the effect of the Acts does not

withstand close analysis. The view which he expressed in Walsh v. Lonsdale 15 of the effect of an agreement for a lease under
which possession has been given, and the reasons given by the High Court of Australia in Chan v. Cresdon Pty. Ltd. 16 for the
rejection of that view, reveal the nature of the controversy and show why it had to be resolved adversely to Sir George Jessel. In
Walsh v. Lonsdale, where interlocutory relief was granted to a landlord who had been sued by a tenant after purporting to levy
a distress for unpaid rent under an agreement to give a lease for seven years, Sir George seems to have regarded the agreement
as amounting to an equitable lease which was the equivalent of a lease at law. So regarded, the agreement gave rise to a liability
for rent for which common law distress could be levied. His Lordship sought to justify this conclusion by saying17:
*L.Q.R. 242 "There are not two estates as there were formerly … There is only one Court, and the equity rules prevail in it. The
tenant holds under an agreement for a lease. He holds, therefore, under the same terms in equity as if a lease had been granted".
His Lordship was right to treat the agreement for a lease as an equitable lease on the footing that the agreement was capable
of specific performance in the primary sense of that term. But he was wrong to treat the equitable lease between the parties
as though it gave the lessee a lease at law in the sense of having a legal interest in the term. Until the lessee acquired a legal
interest in the term he could not sue for rent and distrain for unpaid rent. And that legal interest is not acquired until a lease is
executed. The point is that legal and equitable estates and interests necessarily maintain their separate existence. In that sense,
the Judicature Acts have an operation which is procedural rather than substantive.18
Concentration on the effect of the Judicature Acts to the exclusion of other considerations is likely to result in over-emphasis on
the state of equitable doctrine as it existed immediately before the original Judicature Act was introduced and on the limitations
then applying to the grant of relief, those limitations often being expressed, sometimes inappropriately, in jurisdictional terms.
For my part, I agree with the comment of Somers J. in Elders Pastoral Ltd. v. Bank of New Zealand 19:
"Neither law nor equity is now stifled by its origin and the fact that both are administered by one Court has inevitably meant
that each has borrowed from the other in furthering the harmonious development of the law as a whole."
There is no reason why the courts in shaping principles, whether their origins lie in the common law or in equity, should not
have regard to both common law and equitable concepts and doctrines, borrowing from either as may be appropriate, just as
courts have regard to the way in which the law has been developed by statute and has developed in other jurisdictions and, for
that matter, in other systems of law. Somers J. went on to say:
"I think it likely that over the years words such as unconscionable and inequitable have drawn closer to more objective concepts
such as fair, reasonable and just."
That is an interesting comment and I shall have more to say about it later.
*L.Q.R. 243 The relationship between equitable compensation and common law damages
In Australia, it has been accepted that equitable compensation, rather than common law damages, should be awarded for breach
of fiduciary duty20 on the footing that the matter lies within equity's exclusive jurisdiction. Equitable compensation differs from,
and can be more substantial than, damages for breach of contract or tort because the equitable obligation is to make restitution
and is not confined by the concepts of foreseeability and remoteness.21 It has been said22 that, in New Zealand, a different
approach has been pursued in Day v. Mead. 23 In one sense that is right. It is right because the New Zealand Court of Appeal was
prepared to develop the concept of equitable compensation by importing into it the notion, inherent in contributory negligence
as common law, that, where appropriate, the plaintiff should accept some share of the responsibility for his or her own loss. The
court took that course because, as Sir Robin Cooke put it24:
"There appears to be no solid reason for denying jurisdiction to follow that obviously just course, especially now that law and
equity have mingled or are interacting".
The concept of equitable compensation as expounded in Day v. Mead differs from that stated in Re Dawson 25 by reason of
fixing the plaintiff with a share of the responsibility, but that does not necessarily depend upon the Judicature Acts. It may simply
rest on the willingness of the New Zealand Court of Appeal to develop the concept of equitable compensation by reference to
the doctrine of contributory negligence as refined by statute.

Putting to one side any reliance on the Judicature Acts, I suspect that, at bottom, criticism of Day v. Mead rests on two
unarticulated grounds. One is that the Court of Appeal was guilty of impiety in daring to pollute a traditional equitable concept
with a new-fangled common law notion. The other is that it is not for the courts, under the guise of judicial development, to alter
the substantive principles of law and equity on policy grounds. Neither objection can be supported. The traditional principles
of equity are not so invincibly superior to the concepts of the common law that equity cannot occasionally profit from common
law ideas. And, though the courts *L.Q.R. 244 should look at policy arguments with due circumspection, it would be absurd
to suggest that the courts cannot adjust or modify equitable principle on policy grounds where to do so is appropriate.
Day v. Mead was taken a step further in Aquaculture Corporation v. New Zealand Green Mussel Co. Ltd. 26 Compensatory
damages were awarded for breach of a duty of confidence. Sir Robin Cooke stated that, whether the obligation of confidence
breached was purely equitable or not, "a full range of remedies should be available as appropriate, no matter whether they
originated in common law, equity or statute" (emphasis added).27
Whether the Court of Appeal was correct in Day v. Mead in introducing apportionment of responsibility into equitable
compensation is another question. It can be argued that apportionment of responsibility is not entirely consistent with the
restitutionary character of compensation for breach of fiduciary duty. However, this objection loses most of its force if the
principled development of equity is capable of extending compensation for breach of fiduciary duty beyond its restitutionary
origins. Obviously a fiduciary should not be held liable for loss that does not flow from a breach of fiduciary duty, a matter that
was recognized in the judgment of McLachlin J. in Canson Enterprises Ltd. v. Boughton & Co. 28 The reasons given in that
judgment for rejecting the simple analogy with tort law are cogent. To repeat McLachlin J.'s words29:
"The better approach … is to look to the policy behind compensation for breach of fiduciary duty and determine what remedies
will best further that policy. In so far as the same goals are shared by tort and breach of fiduciary duty, remedies may coincide."
This approach by no means repudiates the notion that assistance can be gained, where appropriate, from the law of tort as it
can be gained from other sources. The judgment explicitly concedes that such assistance can be obtained.30 And the judgment
itself provides an illustration. McLachlin J. drew on Doyle v. Olby (Ironmongers) Ltd., 31 an authority dealing with common
law damages for fraud, in reaching the conclusion that, in the context of equitable compensation for breach of fiduciary duty,
when the plaintiff, after due notice and opportunity, fails to take the most obvious steps to alleviate his or her losses, the plaintiff
is to be regarded as the author of his or her *L.Q.R. 245 own misfortune.32 But, once it is accepted that the basis of equitable
compensation is restitution for the value of the loss suffered from the breach of fiduciary duty, it is not easy to see why recourse
should be had to the law of tort, except in those instances where the law of tort presents an approach which is not at odds with
the policy underlying the equitable duty for which compensation is claimed.
Fiduciary relationships
The fiduciary relationship has been the spearhead of equity's incursions into the area of commerce, notwithstanding that courts
are still mindful of the stern warnings uttered by Lindley L.J.33 and Atkin L.J.34 of the dangers of applying equitable doctrines
to commercial transactions.35 To do so, we were told, would paralyse the trade of the country and fundamentally affect the
security of business transactions. There has been a natural reluctance to impose upon parties in a commercial relationship who
are in a relatively equal position of strength the higher standards of conduct which equity prescribes. One manifestation of this
reluctance is the disinclination of judges to find a fiduciary relationship when the arrangement between the parties is of a purely
commercial kind and they have dealt with each other at arm's length and on an equal footing. In Hospital Products Ltd. v. United
States Surgical Corporation, 36 this reluctance was an important factor in the reasoning of the majority of the High Court of
Australia which led them to the conclusion that no fiduciary relationship existed.37 And, as Professor Birks has pointed out,
there are dangers in over-extending the concept of "fiduciary", particularly if the motive is to achieve a proprietary remedy.38
However, in recent times, courts have affirmed the existence of such a relationship arising out of a commercial transaction
or arrangement where the parties are at arm's length and stand on a relatively equal footing. Partnership and joint venture
arrangements are traditional examples39 and many other examples are available. A fiduciary relationship will arise out of a
commercial arrangement when one party undertakes to act in the interests of the other party rather than in his or her own interests
in relation to a particular *L.Q.R. 246 matter or aspect of their arrangement and that other party, being unable to look after his
or her own interests in that matter or aspect of the arrangement, is basically dependent upon the first party acting in conformity
with his or her undertaking.

Liggett v. Kensington 40 is an interesting illustration. Part of the business of a bullion trader was selling bullion to the public.
It offered purchasers the choice of taking delivery of the bullion or having the trader keep it in safe custody on the purchaser's
behalf as "non-allocated bullion." Purchasers of non-allocated bullion were issued with a certificate of ownership and were
entitled to collect the physical bullion on seven days' notice. The majority of the New Zealand Court of Appeal held that the
trader was a fiduciary. This conclusion was based on two propositions41:
(1) that the trader was bound to protect the interests of the purchasers; and (2) that the trader was, for all practical purposes,
free from control and supervision by the purchasers.
In Liggett, the plaintiff was not confronted with the problem which proved intractable in Hospital Products of establishing that
the distributor was bound to act in the interests of the principal or in the joint interests of the parties in relation to product
goodwill and not solely in his own interests.
The quest for a precise definition which identifies the characteristics of the fiduciary relationship, in particular other relationships
which attract equitable relief, continues without evident signs of success. The absence of clear definition has enabled the courts
to classify as fiduciaries persons who would not have been so regarded at an earlier time. The reason why the classification has
been more extensive is that courts, reflecting higher community standards or values, perceive in a wide variety of relationships
that one party has a legitimate expectation that the other party will act in the interests of the first party or at least in the joint
interests of the parties and not solely self-interestedly. The absence of clear definition and perhaps different community standards
and values, but more probably different legal traditions and influences, has led to diverse approaches in various jurisdictions.
My impression is that there has been in Canada a greater willingness to find a fiduciary relationship than in Australia and New
Zealand, reluctance to do so being perhaps even more marked in England. As yet, we in Australia have no counterpart to Guerin
v. *L.Q.R. 247 The Queen. 42 The decision has been relied upon in aboriginal land claim cases but so far it has not formed
the basis of a decision. It was strongly relied upon in argument in the landmark case Mabo v. Queensland (No. 2) 43 but only
Toohey J. held that the Crown was under a fiduciary obligation with respect to the lands of the Meriam people. His conclusion
did not rest on Guerin, where the fiduciary relationship was grounded on fact that the aboriginal or traditional Indian interest
in the land was inalienable except upon surrender to the Crown, that being an element of the statutory scheme prescribing the
process by which the Indian land could be disposed of.44 In Mabo, Toohey J. based the existence of a fiduciary duty on the
Meriam people's vulnerability arising from the Crown's power to alienate land the subject of their traditional rights, the result
of such alienation being the extinguishment of traditional title, and from the restriction on their own power to deal with their
title, in that it was inalienable, except to the Crown.45 Toohey J. also distinguished Delgamuukw v. British Columbia 46 on the
ground that the nature of the protected rights and the source of the Crown's obligations differed in that case.47 The Indians'
title had been extinguished prior to confederation; that extinguishment was partly the source of the Crown's obligation; and the
protected rights of the Indians were those invoked by promises made by the Crown after extinguishment to permit the Indians
to use land not used for other purposes.
The third area into which the fiduciary relationship has ventured (in Canada, as in the United States, though not as yet in
Australia) is that of fundamental human and personal interests. In Norberg v. Wynrib, 48 at least three justices took the view
that the doctor-patient relationship was, at least in part, fiduciary. The recognition that the relationship was fiduciary is not as
significant as the statement made by McLachlin J.49 (with whom L'Heureux-Dubé J. concurred) that the fiduciary principles
"are capable of protecting not only narrow legal and economic interests, but can also serve to defend fundamental human and
personal interests".
The justices applied the principles in that case to protect the interest of the patient, who was a woman, in receiving medical
care free from sexual exploitation by her physician. She was therefore entitled to *L.Q.R. 248 equitable compensation. She
received an award for damages, including punitive damages, by way of equitable compensation for the trauma caused to her
by the defendant's sexual acts in breach of his fiduciary duty.
McLachlin J. stated that imbalance of power was a necessary but not sufficient condition to establish a fiduciary relationship.
There must also be potential for interference with a legal interest or a nonlegal interest of "vital and substantial "practical'

interest" as well as an assumption or undertaking to "look after" the interest of the beneficiary exclusively for the good of the
beneficiary.50
Some of the more extreme examples of fiduciary relationships affirmed by the courts are unquestionably explained by the
judicial perception that the circumstances call for the imposition of a constructive trust. More recently, we have discovered that
there are other grounds, such as breach of a duty of confidence and unconscionable conduct, which will attract the remedial
constructive trust. That discovery has taken pressure off the fiduciary relationship as a passport to proprietary relief and has
focused attention on other equitable doctrines.
Indeed, it is possible that the courts could move in two complementary directions thereby extending and harmonising both
common law and equitable approaches. One approach, suggested in the dissenting judgment of Deane J. in Hospital Products,
is that a constructive trust and liability to account as a trustee might be imposed where the defendant has engaged in a calculated
breach of contract with a view to appropriating some benefit or advantage belonging to the plaintiff, e.g. product goodwill.51
The other is the award of restitutionary damages for wilful breach of contract intended to enable the defendant to achieve a
business advantage to the detriment of the plaintiff's buisness.52
Relief against unconscionable bargains

Relief against unconscionable bargains is granted when a transaction, considered in the light of the circumstances in which it
was entered into, is so unconscionable that it cannot be allowed to stand.53 The power to grant relief on this ground was in
the past largely confined to cases in which the party seeking relief was a person suffering from some special distinct disability
or disadvantage, *L.Q.R. 249 e.g. the expectant heir, or the inebriated plaintiff in Blomley v. Ryan 54 who was incapable of
forming a rational judgment. But the principle according to which relief is granted is not so limited. What is required is that
there be an unconscientious taking advantage of the disability or disadvantage of the person in the weaker bargaining position
by procuring or retaining the benefit in question in a way that is both unreasonable and oppressive.55 So, in Louth v. Diprose,
56
the female appellant took unconscientious advantage of the male respondent's infatuation with her by manufacturing a crisis,
involving threats of suicide, and inducing him to enter into an improvident transaction whereby he purchased a house which
was conveyed to her. In so doing, he expended a large part of his assets.
Whether a plaintiff is entitled to relief on the ground of unconscionable conduct in the sense described above is very largely a
question of fact and of value judgment. The cases provide little in the way of specific guidance, offering only very wide general
expressions. As Fullagar J. noted in Blomley v. Ryan, 57 this is typical of the difference between the common law and equity:
the common law looks to "the reality of the assent of the person resisting enforcement of the contract" whereas equity "look[s]
at the matter from the point of view of the person seeking to enforce the contract and … inquire[s] whether, having regard to
all the circumstances, it [is] consistent with equity and good conscience that he should be allowed to enforce it."58
In Australia, at least, the emergence from the shadows of this ground of equitable relief has relegated the doctrine of undue
influence to a position of relative unimportance. The reasons given by the House of Lords for rejecting the case based on undue
influence in National Westminster Bank Plc. v. Morgan 59 suggest that unconscionability as an independent ground of relief
does not loom large on the English scene. Unconscionability and undue influence overlap, the latter being more limited in scope,
concerned as it is with the exercise by the contracting party of an independent and voluntary will.
The remedial constructive trust

In Australia, we have not, so far, accepted the "constructive trust of a new model,"60 based on notions of justice, good conscience
and *L.Q.R. 250 fairness proposed by Lord Denning M.R. in Eves v. Eves, 61 though some may consider that his Lordship's
model was a shorthand version of the constructive trust which we have recognised. We take the view that equitable relief by
way of constructive trust will only be granted if the principles of equity require that the owner of property should hold it to the
use or benefit of another. That approach is not as unhelpful as it may sound because the elaboration of equitable principle is
opening up new avenues to relief by way of constructive trust. So, in Muschinski v. Dodds, 62 the court imposed such a trust
by which the unmarried couple, who separated after purchasing a property under a contract for which they were jointly and
severally liable, held that property as tenants in common upon trust, after payment of joint debts incurred in the improvement of
the property, to repay to each her or his contribution and, as to the residue, for them both in equal shares. The terms of the trust,
so far as they related to recoupment of contributions, were fashioned by analogy with common law and equitable principles
applicable to frustration of contracts, the premature dissolution of a partnership and the premature collapse of a joint venture.63

The foundation for the imposition of the trust was the principle that equity would not permit the man to assert or retain the
benefit of his one-half interest in the property to the extent that it would be unconscionable for him to do so. The woman had
paid the purchase price of the property but the property had been conveyed to them jointly on the assumption that the man
would subsequently contribute in money and by labour to the development of the property. The endeavour and their relationship
collapsed before he had made his contribution.
The decision provided the springboard for a further advance in Baumgartner v. Baumgartner. 64 The court recognised that the
constructive trust is imposed by equity even though the parties may not have intended to create a trust and without resort to
the fiction of presumed intention.65 The parties to a de facto relationship had pooled their incomes for living expenses and
fixed commitments. They acquired a house in his name after selling his unit in which they had previously lived. The house was
purchased with the proceeds of sale of his unit and the aid of a mortgage. The parties' aggregate earnings were pooled in the
proportion of approximately 55 per cent. by the man and 45 per cent. by the woman. When they separated, the man asserted that
the house was his sole property. The court imposed a *L.Q.R. 251 trust whereby the man held the house on trust for the parties
in the proportions in which they had contributed their earnings to its acquisition, subject to a lien in the man's favour for the
net proceeds of the sale of the unit. It was the man's assertion of title to the exclusion of any interest on the part of the woman,
notwithstanding that their pooled earnings contributed to the acquisition, that warranted the imposition of the constructive trust.
So far the imposition of such a trust in the circumstances already discussed has not been based upon the concept of unjust
enrichment. As Toohey J. pointed out in Baumgartner, the result might as easily be justified by reference to unjust enrichment as
unconscionable conduct66 on the footing that the trust was imposed to avoid an unjust enrichment of the man. Since Baumgartner
we have recognised that the unifying concept of unjust enrichment is part of Australian law.67 It is perhaps possible now that the
imposition of a constructive trust of the kind in question can be based, in appropriate circumstances, on unjust enrichment. It may
be that this concept is capable of providing greater assistance, at any rate in some cases, in resolving the issues which usually
arise. What is more, the concept may avoid the temptation to classify what is "unfair" as "unconscionable conduct." However,
it has been suggested that unjust enrichment may provide a narrower foundation for relief than unconscionable conduct.68
These developments in Australia could bring our law more into line with that in Canada where unjust enrichment has been
employed as a foundation for imposing a constructive trust.69 It has been said that there is one significant difference between
unconscionable conduct and unjust enrichment. The former looks to the conduct of the person who takes unconscientious
advantage of the person in the position of disadvantage and requires an assessment of that conduct whereas the latter looks to
the expectations of the parties and inquires whether there was an enrichment, and corresponding deprivation, and the absence
of any juristic reason for the enrichment.70 But that is not to say that the expectations of the parties are irrelevant to the concept
of unconscionable conduct.
In England, the existence of a common intention and acts, such as the payment or making of contributions, by the claimant to
the detriment of the claimant in the reasonable belief by so acting that an *L.Q.R. 252 interest in property would be acquired
have been stated to be essential to the imposition of a constructive trust.71 This approach rests on a combination of intention
and equitable estoppel and involves a rejection of unconscionable conduct and unjust enrichment as sufficient bases for the
relevant relief. However, it has been accepted that unjust enrichment will entitle a plaintiff to full recovery where consideration
is not given. In Lipkin Gorman v. Karpnale Ltd., 72 the solicitors' chose in action as creditors of their bank enabled them to trace
into the hands of a gambling club cash wrongly withdrawn from the partnership bank account by one of the partners, the cash
being the direct product of their chose in action. But the plaintiffs did not seek as against the gambling club relief by way of
constructive trust: the claim against the club was solely a personal action for money had and received.
Whether the acceptance of the concept of unjust enrichment in the context of restitution will lead to any alteration in the basis on
which relief by way of constructive trust will be awarded, only time will tell. The judgment of Bingham J. in Neste Oy v. Lloyds
Bank Plc. 73 may ultimately indicate a different path of development. The judgment was squarely based on the principle that74
"the receiving of money which consistently with conscience cannot be retained is, in Equity, sufficient to raise a trust in favour
of the party for whom or on whose account it was received".
In New Zealand, as in Australia, a remedial constructive trust will be declared even when no fiduciary relationship exists, where
it is unconscionable for a party to retain property75 or, it would seem, on the ground of unjust enrichment.76 However, New

Zealand has gone further than Australia in following a Canadian approach in a family relationships77 in awarding monetary
compensation in circumstances where a constructive trust might otherwise be declared on the footing that family assets should
be shared unless it is otherwise agreed or made plain.78 In Gillies v. Keogh, Richardson J. said79:
"Whatever the position in other countries, it seems to me that social attitudes in New Zealand readily lead to expectations, by
*L.Q.R. 253 those within apparently stable and enduring de facto relationships, that family assets are ordinarily shared, not
the exclusive property of one or the other, unless it is agreed otherwise or made plain … That philosophy is also reflected in
unjust enrichment".
The New South Wales Court of Appeal (Sheller J.A., Samuels A.J.A., Kirby P. dissenting) declined to adopt that approach,
characterising it as one which was tantamount to the adoption of the concept of community of property, the legislature having
taken no action to introduce that concept.80
One problem still persists. Indeed, it has gained an extra dimension now that unconscionable conduct/unjust enirchment can
generate a remedial constructive trust. So long as breach of fiduciary duty was the exclusive progenitor of the trust it was
possible to say that a plaintiff who reposed trust and confidence in the fiduciary should enjoy priority over general creditors, who
did not repose such trust and confidence in their debtor and dealt with the debtor at arm's length.81 But what is the justification
when there is no fiduciary duty and a plaintiff's claim rests on mistake or some form of compulsion? Maddaugh and McCamus
suggest that the justification is to be found in the circumstances that such a plaintiff has not had the opportunity to investigate
the debtor and to assume the risk of his insolvency.82 Gummow J. has questioned the adequacy of that response.83
Indeed, the impact upon general creditors of proprietary relief and equitable interests not registered as charges has been
recognised as a concern in other contexts as equity intrudes into the commercial world via the Quistclose trust and the Romalpa
clause and as the substantive principles of equity and the common law converge.84
Estoppel
In Australia at least, estoppel provides a striking example of the convergence of common law and equitable doctrine. Estoppel,
with its various subdivisions, each entailing its own criteria and legal consequences, testifies to the historical and piecemeal
fashion in which the principles of judge-made law have developed over the centuries. In a series of decisions we have sought
to eliminate some of the distinctions, to bring greater unity to the law of estoppel and to recog *L.Q.R. 254 nise that the
principles are an important part of our substantive law. Here again the concept of unconscionability has been at the heart of
the doctrinal refinements which have been made.
That concept played a large part in the acceptance of the doctrine of promissory estoppel and its application to a voluntary
promise in circumstances in which a departure from the assumptions on which the transaction was based would be
unconscionable.85 In cases where there is an executory promise to do something, the unconscionable conduct may have its
origin in the encouragement of an assumption that the promise will be fulfilled, and reliance by the promisee to his or her
detriment to the knowledge of the promisor. Or it may have its origin in the reasonable expectation on the part of the promisor
that the promise will induce action or forbearance in circumstances where injustice can only be avoided by holding the promisor
to the promise. The next step was to eliminate the difference between the attitude of equity (promissory estoppel) and that of
the common law towards a representation or mistaken assumption as to future conduct. That difference, which I have always
found difficult to justify, was resolved by saying that a representation or mistaken assumption as to future as well as to present
conduct will found an estoppel.86
These developments set the stage for Commonwealth v. Verwayen 87 which, notwithstanding the unfortunate diversity of opinion
expressed in the judgments, in some respects confirmed the advances previously made. The result of the decision was that the
Commonwealth was precluded from disputing its liability to the plaintiff for damages for negligence arising out of a collision
between warships, the Commonwealth having previously admitted liability on the pleadings and having stated both before and
after the institution of proceedings that its policy was not to contest liability. It later obtained leave to amend its defence so as to
rely upon a contention that it owed no duty of care and upon a limitations defence. There was substantial expression of support,
if not majority support, for the view that an estoppel, certainly an equitable estoppel, does not necessarily entitle the party in
whose favour the estoppel operates to the making good of the assumption on which the estoppel is founded. The remedy is
rather to effect the minimum equity needed to avoid the relevant detriment, that is, the detriment occasioned by reliance on the
promise. There is a need for proportionality between the remedy and the detriment which the estoppel seeks to avoid.

In Australia, Verwayen may well be a staging post along the way towards recognition of an over-arching unity embracing the
various *L.Q.R. 255 classes of estoppel. Apart from history and the forces of precedent and tradition, there is no essential
reason why we should not move towards one concept of estoppel common to, or straddling, common law and equity, which seeks
to avoid detriment to a party who has acted upon the correctness of an assumption or state of affairs which the party estopped
has encouraged or expected or ought reasonably to have expected. Such a unity would, of course, need to allow for inevitable
differences in the nature of some estoppel-based claims and defences. Obviously, promissory estoppel and proprietary estoppel
call for some difference in treatment. Thus, unjust enrichment may have a greater role to play in proprietary than promissory
estoppel.88 One advantage of unity would be to terminate the debate, yet another arid exercise, over estoppel as a shield or
sword. In Verwayen, 89 I suggested that there is no reason why a cause of action cannot be founded in estoppel. It seems to me
to be artificial to say that you are not using estoppel as a cause of action when your success on the particular cause of action
pleaded depends upon your capacity to use an estoppel to establish the very basis of your claim.
There is, of course, a formidable objection to the elaboration of the doctrine of estoppel by means of unconscionability. It
is a concept not readily susceptible of precise definition and so, we are told, will lead to uncertainty in the area of estoppel
where certainty would be helpful. The problem is that unconscionability is very much a matter of fact, degree and value
judgment, so that greater guidance will only come from an array of decisions on particular fact situations. However, in this
respect, unconscionability is no different from fraud, undue influence and the neighbourhood principle in negligence. As Lord
Scarman said in National Westminster Bank Plc. v. Morgan, 90 definition "is a poor instrument when used to determine whether
a transaction is or is not unconscionable: this is a question which depends upon the particular facts of the case." And, as Deane
J. observed in Verwayen, 91 "the most that can be said is that "unconscionable' should be understood in the sense of referring to
what one party "ought not, in conscience, as between [the parties] to be allowed' to do." But that, as his Honour noted, ordinarily
involves the exercise of or insistence upon legal entitlement to take advantage of another's special vulnerability or disadvantage
in a way that is both unreasonable and oppressive.92
As we endeavour to express principles which are attuned to the *L.Q.R. 256 attainment of justice in a range of particular cases,
we are compelled to express those principles in broad terms. Criticism of that approach often stems from a preference for a more
rigid rule-based system of justice. That preference, not infrequently voiced by judges and practitioners, is generally associated
with the belief, in my view erroneous, that rigid rules promote clarity and certainty in the law. So far I have proceeded on the
footing that the new movement in estoppel in Australia is, once again, based on the notion of unconscionability. That may not
be an entirely comprehensive statement of the position. One will find in the judgments in Verwayen, not least in that of Deane
J.,93 references to the judgments of Dixon J. in Thompson v. Palmer 94 and Grundt v. Great Boulder Pty. Gold Mines Ltd. 95
in which his Honour, in the context of discussing estoppel by conduct, spoke of the object of estoppel of that kind being "to
prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which,
unless the assumption be adhered to, would operate to that other's detriment." Dixon J. went on to say in Thompson 96:
"Whether a departure by a party from the assumption should be considered unjust and inadmissible depends upon the part taken
by him in occasioning its adoption by the other party."
The subsequent indication of circumstances in which a departure from an assumption would be "unjust" applies with equal force
to common law as to equitable estoppel. Once that is appreciated, we are compelled to ask whether there is any difference, in this
context, between "unjust" and "unconscionable" and that brings us back to the comment of Somers J., to which I referred earlier.
There is, in my view, little to be said for the preservation of separate and different sets of principles if they ultimately depend
on nuances to be derived from words such as "unjust" and "unconscionable." The point is that, in the end, "unjust departure"
in the context of common law estoppel is in essence describing conduct which is unconscionable. I have confined my remarks
on estoppel to developments in Australia because they have no precise counterpart in other jurisdictions and it would not make
sense to compare those developments with what has been happening or not happening elsewhere.
Restitution
Largely as a result of the illuminating writings of Goff and Jones, Birks and Beatson, we have been moving towards a law of
restitution *L.Q.R. 257 which transcends particular common law causes of action and equitable grounds for relief. Not that
I am suggesting that we can ignore the legal or equitable basis of the claim as the plaintiff chooses to formulate it. What I do
suggest is that general principles are being articulated and refined which may apply indifferently, whether the basis of the claim
has its origins at common law or in equity. In Lipkin Gorman, it was acknowledged that the underlying principle governing the

recovery of money had and received at common law in restitution is unjust enrichment.97 Lord Goff of Chieveley referred to
Clarke v Shee and Johnson 98 where the plaintiff's clerk received money and negotiable notes from the plaintiff's customers for
the use of the plaintiff. From what he had received, the plaintiff paid £460 to the defendant for tickets in a lottery contrary to the
Lottery Act 1772. The Court of King's Bench held the plaintiff was entitled to recover the £460 from the defendant as money
had and received by him for the use of the plaintiff. Lord Mansfield said99:
"This is a liberal action in the nature of a bill in equity; and if under the circumstances of the case, it appears that the defendant
cannot in conscience retain what is the subject-matter of it, the plaintiff may well support the action". (emphasis added)
We see here the parallel between what is unconscionable and "inequitable," to use Lord Goff's expression,100 and the notion
of unjust enrichment. But here the idea of unconscionability is deployed as the criterion of liability in a common law claim for
restitution. In Lipkin Gorman, Lord Goff went on to say that, in such a case, the plaintiff, if he can show that the money is his
legal property, can recover against the third party but not if the third party received the money in good faith and for valuable
consideration. Again, in deciding that bona fide change of position is a good defence, Lord Goff stated that it would be "unjust"
to allow restitution in such a case.101
The same points had been made earlier by the High Court of Australia in Australia & New Zealand Banking Group Ltd. v.
Westpac Banking Corporation where the court said102:
"The basis of the common law action of money had and received for recovery of an amount paid under fundamental mistake
of fact should now be recognized as lying not in implied contract but in restitution or unjust enrichment … The common law
right of action may arise in circumstances which also give rise to *L.Q.R. 258 a resulting trust of specific property or funds
or which would lead a modern court to grant relief by way of constructive trust. However, notwithstanding that the grounds of
the action for recovery are framed in the traditional words of trust or use and that contemporary legal principles of restitution or
unjust enrichment can be equated with seminal equitable notions of good conscience, the action itself is not for the enforcement
of a trust or for tracing or the recovery of specific money or property."
Once a doctrine of restitution or unjust enrichment is recognized, the distinction between mistake of fact and mistake of
law serves no useful purpose. Dickson J. pointed this out in Hydro Electric Commission of Nepean v. Ontario Hydro. 103 In
conformity with that view, the High Court of Australia has held that the rule precluding recovery of moneys paid under mistake
of law does not form part of the law of Australia.104 It seems that the House of Lords may be moving to a similar position, if
the speeches in Woolwich Equitable Building Society v. I.R.C. 105 are any indication.
Conclusion
Equity and common law are converging and will continue to converge so that the differences in origin of particular principles
should become of decreasing importance. It is inevitable that equitable relief in some of its forms will become available for
the protection and enforcement of common law rights to a greater extent than was formerly the case. Likewise, compensatory
damages may be granted in appropriate cases for breach of equitable duties and obligations but obviously this will not occur on
the footing that there is an automatic entitlement to a common law remedy for a breach of equitable duty or obligation or vice
versa. It will happen in the course of the law's evolution as it becomes established that, in given circumstances, it is appropriate
to grant a particular remedy.
The underlying values of equity centred on good conscience will almost certainly continue to be a driving force in the shaping
of the law unless the underlying values and expectations of society undergo a fairly radical alteration. If the present trend
continues, the element of uncertainty which is associated with the greater emphasis on good conscience will be dissipated by
an increase in the number of decisions on a wide range of fact situations. Because the concepts employed are not susceptible
of sharp definition, there is the risk of some erosion in the apparent distinctions which have been maintained hitherto between
equitable concepts such as "unconscionable" *L.Q.R. 259 and "inequitable" and common law concepts such as "unfair" and
"unreasonable."106 But it is important that we continue to adhere to the traditional concept of unconscionability as denoting
conduct which involves one person unconscientiously taking advantage of another's special vulnerability or disadvantage in a
way that is both unreasonable and oppressive. The recent decade might be regarded as a period of legal transition in which we
have been moving from an era of strict law to one which gives greater emphasis to equity and natural law. As Roscoe Pound
said in The Spirit of the Common Law, 107 the endeavour to make morals and law coincide will be an important future goal.

<FNTI> The opening address at the Second International Symposium on Trusts, Equity and Fiduciary Relationships held at
the University of Victoria, British Columbia in January 1993; first published in D. W. M. Waters, ed., Equity, Fiduciaries and
Trusts (Toronto, Carswell, 1993), p. 3 and reproduced by kind permission of the writer, the University of Victoria and Carswell
Publishing.</FNTI>
ANTHONY MASON.
Footnotes
1 "Law" in Barker (ed.),

The Character of England
(1947), p. 112 at pp. 117, 124.
Viscount Simonds' essay is
referred to in Sir Frank Kitto's
Foreword to the First Edition
of Meagher, Gummow and
Lehane, Equity: Doctrines and
Remedies (3rd ed., 1992), p.
vi.
2 [1914] A.C. 932.
3 [1978] A.C. 904.
4 Ibid., p. 925; see also pp. 945,
957.
5 Meagher, Gummow and
Lehane, op. cit. supra, n. 1,
paras. 207, 260.
6 United Scientific [1978] A.C.
at p. 945.
7 [1987] 2 N.Z.L.R. 443 at p.
451.
8 (1991) 102 A.L.R. 681 at p.
693.
9 See Barclays Bank Ltd. v.
Quistclose Investments Ltd.
[1970] A.C. 567.
10 [1959] 1 Q.B. 55 at pp. 72-73.
11 Mutual Life and Citizens'
Assurance Co. Ltd. v. Evatt
[1971] A.C. 793 at p. 805.
12 [1902] 2 Ch. 809.
13 McDermott, "Jurisdiction
of the Court of Chancery to
Award Damages," (1992) 108
L.Q.R. 652; Michalik, "The
Availability of Compensatory
and Exemplary Damages in
Equity," (1991) 21 V.U.W.L.
Rev. 391.
14 See Redgrave v. Hurd (1881)
20 Ch.D. 1 at p. 12; but cf.
Smìth v. Chadwick (1884) 9
App. Cas. 187; and see Walsh
v. Lonsdale (1882) 21 Ch.D. 9
at pp. 14-15.
15 (1882) 21 Ch.D. at p. 14-15.
16 (1989) 168 C.L.R. 242.
17 (1882) 21 Ch.D. at pp. 14-15.
18 Chan v. Cresdon Pty. Ltd.
(1989) 168 C.L.R. at pp.
252-256.
19 [1989] 2 N.Z.L.R. 180 at p.
193.

20 Re Dawson [1966] 2 N.S.W.R.

211 at p. 216; Commonwealth
Bank of Australia v. Smith
(1991) 102 A.L.R. 453 at pp.
479-480.
21 Commonwealth Bank of
Australia v. Smith, supra.
22 Meagher, Gummow and
Lehane, op. cit. supra, n. 1,
para. 553.
23 [1987] 2 N.Z.L.R. at p. 451.
24 Ibid.; see also per Somers J. at
p. 462.
25 [1966] 2 N.S.W.R. 211.
26 [1990] 3 N.Z.L.R. 299.
27 Ibid., at p. 301.
28 (1991) 85 D.L.R. (4th) 129 at
pp. 160, 163.
29 Ibid., at pp. 155-156.
30 Ibid., at p. 156.
31 [1969] 2 Q.B. 158 at p. 167.
32 Canson Enterprises Ltd.
(1991) 85 D.L.R. (4th) at pp.
161-162.
33 Manchester Trust v. Furness
[1895] 2 Q.B. 539 at p. 545.
See also Greer v. Downs
Supply Co. [1927] 2 K.B. 28.
34 In re Wait [1927] 1 Ch. 606
at pp. 634 et seq., esp. at pp.
639-640.
35 See, for example, Polly Peck
International Plc. v. Nadir (No
2) [1992] 4 All E.R. 769, per
Scott L.J. at p. 782.
36 (1984) 156 C.L.R. 41.
37 Ibid., at pp. 70, 118, 149-150.
38 Birks, "Restitutionary
Damages for Breach of
Contract", [1987] L.M.C.L.Q.
421 at pp. 438-439. To like
effect is Finn, "The Fiduciary
Principle", in Youdan (ed.),
Equity Fiduciaries and Trusts
(1989) 1, at p. 56.
39 United Dominions Corp. Ltd.
v. Brian Pty. Ltd. (1985) 157
C.L.R. 1.
40 (1992) 4 N.Z.B.L.C. 99-254,
102, 574; also reparted at
[1993] 1 N.Z.L.R. 257.
41 Ibid., per Cooke P. at pp. 102,
583-102, 584; per Gault J. at
pp. 102, 596-102, 597; but
cf. per McKay J. at pp. 102,
604-102, 605.
42 (1984) 13 D.L.R. (4th) 321 at
pp. 340-341.
43 (1992) 175 C.L.R. 1.
44 (1984) 13 D.L.R. (4th) at pp.
334, 356-357.
45 (1992) 175 C.L.R. at p. 203.
46 (1991) 79 D.L.R. (4th) 185.
47 (1992) 175 C.L.R. at p. 205.
48 (1992) 92 D.L.R. (4th) 449.
49 Ibid., at p. 499.
50 Ibid., at p. 501. This statement
does not take account of
relationships in which the
fiduciary is bound to act in the

joint interests of fiduciary and

beneficiary, e.g. partners.
51 (1984) 156 C.L.R. at pp.
124-125.
52 See the discussion of Y.J.D.
Restaurant Supply Co. Inc.
v. Dib, 413 N.Y.S. (2d) 835
(1979) in Birks, op cit. supra,
n. 38 at pp. 439-440.
53 Waters, "Banks,
Fiduciary Obligations and
Unconscionable Transactions",
(1986) 65 C.B.R. 37 at pp.
47-49.
54 (1956) 99 C.L.R. 362.
55 Commercial Bank of Australia
v. Amadio (1983) 151 C.L.R.
447.
56 (1992) 110 A.L.R. 1.
57 (1956) 99 C.L.R. at p. 401.
58 Ibid., at pp. 401-402.
59 [1985] A.C. 686.
60 Muschinski v. Dodds (1985)
160 C.L.R. 583 at pp. 615-616.
61 [1975] 1 W.L.R. 1338 at pp.
1341, 1342.
62 (1985) 160 C.L.R. 583.
63 Ibid., at pp. 618-619.
64 (1987) 164 C.L.R. 137.
65 Ibid., at p. 148.
66 Ibid., at p. 154.
67 Pavey & Matthews Pty. Ltd. v.
Paul (1987) 162 C.L.R. 221 at
pp. 227, 256-257; Australia &
New Zealand Banking Group
Ltd. v. Westpac Banking Corp.
(1988) 164 C.L.R. 662 at p.
673; David Securities Pty. Ltd.
v. Commonwealth Bank of
Australia (1992) 175 C.L.R.
353 at p. 375.
68 Bryson v. Bryant (1992) 29
N.S.W.L.R. 188 per Sheller
J.A. at p. 223.
69 Rathwell v. Rathwell (1978) 83
D.L.R. (3d) 289 at pp. 305 et
seq.; Pettkus v. Becker (1980)
117 D.L.R. (3d) 257; Sorochan
v. Sorochan (1986) 29 D.L.R.
(4th) 1.
70 Rathwell v. Rathwell (1978) 83
D.L.R. at p. 306.
71 Lloyds Bank Plc. v. Rosset
[1991] 1 A.C. 107 at pp.
132-133; Maharaj v. Chand
[1986] A.C. 898 at p. 907;
Grant v. Edwards [1986] Ch.
638 at p. 654.
72 [1991] 2 A.C. 548.
73 [1983] 2 Lloyd's Rep. 658.
74 Ibid., at p. 666, quoting Story,
Commentaries on Equity
Jurisprudence (2nd ed., 1839),
vol. 2, para. 1255.
75 Elders Pastoral Ltd. v. Bank
of New Zealand [1989]
2 N.Z.L.R. 180; Liggett
v. Kensington (1992) 4
N.Z.B.L.C. at pp. 102, 596.
76 Gillies v. Keogh [1989] 2
N.Z.L.R. 327.

77 Everson v. Rich (1988) 53

D.L.R. (4th) 470.
78 Gillies v. Keogh, supra.
79 [1989] 2 N.Z.L.R. at p. 347.
80 Bryson v. Bryant, supra, n. 68.
81 Space Investments Ltd. v.
Canadian Imperial Bank
of Commerce Trust Co.
(Bahamas) Ltd. [1986] 1
W.L.R. 1072 at p. 1074;
Liggett v. Kensington, supra.
82 Law of Restitution (1990), p.
96, n. 100.
83 Book review, (1991) 107
L.Q.R. 507 at p. 509.
84 See Re Australian Elizabethan
Theatre Trust (1991) 102
A.L.R. at pp. 691-692; Millett,
"The Quistclose Trust: Who
Can Enforce It?," (1985) 101
L.Q.R. 269; Bridge, "The
Quistclose Trust in a World of
Secured Transactions," (1992)
12 O.J.L.S. 332; Oditah,
"Assets and the Treatment of
Claims in Insolvency," (1992)
108 L.Q.R. 459.
85 Waltons Stores (Interstate) Ltd
v. Maher (1988) 164 C.L.R.
387 at pp. 406, 423.
86 Foran v. Wight (1989) 168
C.L.R. 385 at pp. 411-412,
435.
87 (1990) 170 C.L.R. 394.
88 See Lunney, "Towards a
Unified Estoppel -- the Long
and Winding Road," [1992]
Conv. 239 at p. 244.
89 (1990) 170 C.L.R. at pp.
411-413.
90 [1985] A.C. at p. 709.
91 (1990) 170 C.L.R. at p. 441.
92 Ibid.
93 Ibid., at pp. 431 et seq., 443 et
seq.
94 (1933) 49 C.L.R. 507 at p.
547.
95 (1937) 59 C.L.R. 641 at pp.
674-677.
96 (1933) 49 C.L.R. at p. 547.
97 [1991] 2 A.C. at p. 572.
98 (1774) 1 Cowp. 197; 98 E.R.
1041.
99 Ibid., at pp. 199-200; 98 E.R.
at p. 1042.
100 [1991] 2 A.C. at p. 578.
101 Ibid., at p. 579.
102 (1988) 164 C.L.R. 662 at p.
673.
103 (1982) 132 D.L.R. (3d) 193 at
p. 209.
104 David Securities Pty. Ltd. v.
Commonwealth Bank (1992)
175 G.L.R. 353.
105 [1993] A.C. 70.
106 See Stern v. McArthur (1988)
165 C.L.R. 489, per Mason
C.J. (dissenting) at p. 505.
107 "The Philosophy of Law in
the Nineteenth Century," The

Spirit of the Common Law

(1921), pp. 141-142.

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