Maxims of Equity

By
Hamimah Hamzah
Learning Outcomes
What are Maxims
Types of Maxims
Functions of Maxims
Maxims-General
Guidance
A collection of legal truisms which are used as
rules of thumb.
It is an established principle or proposition.
Framework of reference within which the
broader conception of conscience and fairness
can be considered.
Equitable Maxims
One of discretion and moral judgment.
They are not binding but only provides
guidelines for every situation in which equity
developed.
Maxims are the principles developed by Lord
Chancellors exercising on behalf of the Crown.
An extra-ordinary jurisdiction to relax the
rigidity of the common law so as to recognize
and reward the merit and deserts of
individual.
Continue
One of the historic criticisms of equity as it
developed was that it had no fixed rules of its
own and each Lord Chancellor gave judgment
according to his own conscience.
John Selden; Equity varies with the length of
the Chancellors foot.
Such maxims follow principles of universal
justice.
Chancellors were originally the keepers of
the Kings conscience with the authority to
do whatever good conscience and good
reason required in a particular case.
Hanbury-the fruit of observation of developed
equitable doctrine.
In Chancery Court these maxims refer to civil
matters mostly involving businesses, family
law, probate matters, land, workers
compensation and more recently
discrimination cases.
The Traditional Maxims (these are
not exhaustive)
He who seeks equity must do equity
He who comes to equity must come with
clean hands.
Equity will not enforce an unconscionable
contract.
Equity aids the vigilant, not those who
slumber on their rights
Equity acts in personam
Equity follows the law
Equity will not suffer a wrong to be without a
remedy
Equity regards that done which ought to be
done.
Equity regards substance rather than form.
Equity is equality.
Where equities are equal, the first in time will
prevail.
1) He who seeks equity must do
equity
Looks at the plaintiffs future conduct.
If the plaintiff seeks an equitable relief he
must be prepared to act fairly toward the
person the defendant.
Eg. The plaintiff will not succeed in seeking
interlocutory injunction if he is unable or
unwilling to carry out his future obligation.
Cases
Mohamed Syed Fathima d/o Shahul Hammed
&Ors v. MMS Syed Aliyar [2004] 5 MLJ 168
Khoo Hock Leong v Lim Ang Kee (1988) Mallal
D. Vol.2.
 2) He who comes to equity must
come with clean hands.
Court will refuse relief where the plaintiff, by
prior conduct in relation to the matter in
litigation, has acted in bad faith or violated
some equitable principle.
The clean hand doctrine only applies when
the plaintiff has acted unjustly in the very
transaction of which he complains.
The maxim look to the past conduct of the
plaintiff.
However, the maxim does not apply to
conduct in general but only that which has an
immediate and necessary relation to the
equity sued for
Cases
Timber Master Complex (Sabah) Sdn. Bhd. V
Top Origin Sdn. Bhd. [2002] 1 MLJ 33
Palaniappa Chettiar v Arunasalam Chettiar
(1962) MLJ 143.
3) Equity will not suffer a wrong
without a remedy
Philosophical foundation of equity
Wrongs should be redressed by the courts if it
possible.
In Latin-Ubi jus ubi remedium
Meaning- Where there is a right, there is a
remedy
Sometimes the Common law courts owing to
some technical defect unable to enforce the
remedy, therefore equity intervenes and
provides for judicial enforcement-injunction,
recognition of trust. Eg. During the trial
process, the common law courts did not
impose any duty on the defendant to make
disclosure through discovery of documents.
Equity then provided the remedy by
prescribing the process of discovery of
documents.
Application in Malaysia
The Civil Procedure Code and the Specific
Relief Act have incorporated this maxim. The
Code entertains all kinds of suit unless it is
prohibited and the Act provides equitable
remedies like specific performance,
injunctions, rectification, etc
In contract-escape from the contract if it is led
by mistake or misrepresentation.
4) Equity Acts in
Personam
The courts of equity operate primarily in
personam, attacking and binding the
conscience of a person.
Equity enforces its decisions by means of a
personal order against the defendant. Eg.
order to perform a contract, observer a trust,
etc.
If the defendant refuses, he will be in
contempt of court and punishable by
imprisonment
It was also used as a weapon to establish
jurisdiction.
The court may exercise jurisdiction over the
person within the power of the court, even
though the property is outside the jurisdiction.
5) Equity follows the law
The Court of Chancery will not override the
Common Law Courts except; to remedy an
injustice.
Equity could never depart from statute.
It supplement the law-it recognizes legal
estates, right, interest and title.
6) Equity Looks to the Intention
Rather than the Form
Court of Equity make a distinction between
that is matter of substance and that which is
matter of form.
If it finds that by insisting on the form, the
substance will be defeated, it holds it to be
inequitable to allow a person to insist on such
form, and thereby defeat the substance.
However, this maxim does not mean that
equity ignores the formalities but it rather to
look at the substance rather than the form.
Cases
Margaret Chua v. Ho Swee Kiew & Ors. (1961)
1 MLJ 173
Haji Osman v. Syed Noor (1952) MLJ 37
7) Equity Looks at that as Done
which Ought to be Done
The maxim applies as a general rule of equity,
outside the law of contract.
Where the contract is specifically enforceable
equity regards the promisor as having already
done what he has promised to do.
Eg. the sale of land transfers the equitable
interest to the purchaser, the vendor holding
the legal title on constructive until completion.
Cases
Mountney v. Treharne [2003] Ch. 135
A-G for Hong Kong v. Reid [1994] 1 AC 324
HL Banerji v Chin Cheng Realty (Pte) Ltd.
[1983] 2 MLJ 18
Walsh v. Lonsdale (1882) 2 Ch. D 9
8) Delay Defeats Equity
Person who seek equity must not sleep on
their rights. This is the foundation of the
doctrine of laches where a party who
delayed cannot obtain equitable relief.
The plaintiff must seeks relief within
reasonable time. Otherwise court of equity will
refuse to its aids to stake demand.
Eg. interlocutory injunction must always be
sought promptly.
The limitation period-the statutory rules.
Cases
Nelson v Rye [1996] 2 All ER 186.
Goh Heng Kow & Ors v Raja Zainal Abidin
[1995] 3 MLJ 6.
9) Where the Equities are equal, the
Law Prevail
The maxim will comes into operation where
normally the court will interfere to do justice
whenever one party suffers from the other in
the area of equitable interest.
Therefore, to apply this maxim there must be
at least 2 competing parties where both are
entitled to a fair treatment.
The party whose claim is recognized by law
will be given the preference or priority.
Case
Mosbert Bhd. V Chatib (1985) 1 MLJ 162
Salleh Abas CJ. states that;
the law which has been consistently followed
by the court in Malaysia is that a purchaser of
land who has paid the full purchase price, until
registered as legal owner, acquires an
equitable interest in the land.
10) Where the Equities are Equal,
the First in Time Prevail
This maxim also applies in the situation where
equities are equal.
However, the application of this maxim will be
different from the above.
The equities will be ranked according to the
order of creation.
Thus the first in time shall prevail.
In Latin maxim- Qui Prior Est Tempore Portior
Est Jurist.
Meaning- He who is first in time has the
strongest claim in law and take precedent.
Where there are 2 or more competing
interest, the person whose equity is attached
first to the property will be entitled to priority
over other.
Case
UMBC Corp. Bhd. V Goh Tuan Laye (1976) I MLJ
169.
Held: There were 2 parties with equitable
interest being unregistered and unprotected by
caveats at the time when the respondent
became equitable owners of land was better in
time when the documents of title were
deposited with the appellant. Comparing these
circumstances, the appellant was entitled to
priority over the respondent equitable interest.
Conclusion
Is a short phrase which formulates a principle.
A brief expression of a general truth, principle
or rule of conduct.
As a guideline by the Chancery to decide
cases or to settle disputes.