Chapter 14
Other provisions in the Judicature Act 1908

Equity and the common law

14.2The rule that equity prevails over the common law is well-established, having first been introduced in 1615.205  At present, it is reflected in section 99 of the Judicature Act 1908, which provides that:

Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter the rules of equity shall prevail.

14.3In Issues Paper 29, we noted that, when considering the provision, there is a temptation to get distracted by arguments about the fusion of law and equity.206  However, our view was that, properly interpreted, the section relates to matters of substance, rather than practice and procedure or judicial remedies, in which case it is of less relevance to the fusion debate.207

14.4In support of this position, we traced the legislative history of section 99, starting with section 25(11) of the Supreme Court of Judicature Act 1873 (UK). We then went on to consider how the provision had been applied in New Zealand, and how the equivalent United Kingdom provisions had been applied in its courts.

14.5Against that background, our view was that there were three options for dealing with section 99 in new courts legislation:208
(a)The rule could be retained because there may still be matters where common law and equitable rules conflict, and equity should continue to prevail in those circumstances;
(b)The rule could be repealed because conflicts are unlikely to occur in the future, or if they do this will happen infrequently and that equity should prevail is sufficiently well established;
(c)The rule could be repealed because, if future conflicts occur, the court should have the discretion to give primacy to either the equitable or common law rule, depending on which is the more appropriate in the circumstances of the case.
14.6Our provisional view was that section 99 should be retained, for the following reasons:209
14.7No submitters disagreed, and the New Zealand Law Society, the New Zealand Bar Association and the Senior Courts’ judges all expressly stated that section 99 should be kept. Further, we note that the retention of section 99 would be in line with the United Kingdom, which has its equivalent provision in its Senior Courts Act 1981.210

14.8Accordingly, we recommend that section 99 of the Judicature Act 1908 should be retained in new courts legislation.

R69 Section 99 of the Judicature Act 1908 (In cases of conflict rules of equity should prevail) should be retained in new courts legislation.

205By James I in the wake of the Earl of Oxford’s case.
206Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [12.3].
207At [12.5].
208At [12.40].
209At [12.41]-[12.51].
210Section 49.