Chapter 12 - Equity and the common law: section 99

Introduction

Section 99 of the Judicature Act 1908 provides:

In cases of conflict rules of equity to prevail

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.

The provision has been in force in England and New Zealand for over 100 years and is the legislative statement of a rule – that equity prevails over the common law – that was first established in 1615.267  The general issue is whether the section should be revoked.

When considering the provision there is a temptation to get distracted by arguments about the fusion of law and equity. This is partly because the provision has been relied upon to allow courts to follow equitable practices and procedures, or to apply equitable remedies, in preference to common law ones.

The extent to which the provision is relevant to the fusion debate depends on how section 99 is interpreted. If “rules” includes procedure and practice and “conflict or variance” mean “different” then, as courts seek to apply equitable remedies and defences in common law actions (and vice versa), the provision is relevant.

However, in our view the scope of section 99 is narrow. When its predecessor was first introduced in England,268 it was only one of a number of rules of procedure and substance which sought to smooth the administrative and procedural fusion of law and equity. Properly interpreted, it relates to matters of substance, rather than practice and procedure, or judicial remedies.

By James I in the wake of the Earl of Oxford’s case.

As section 25(11) of the Supreme Court of Judicature Act 1873 (UK).