Implication and Significance of the Law of Equity

This assignment discusses the implication and significance of the law of equity, focusing on the case study of Gillian Fisher-Pollard v Piers Fishers Pollard. It explores the concept of equity, unconscionable conduct, and undue influence in the case study.

Running head: EQUITY
Equity
Name of the student:
Name of the university:
Author Note:

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Executive Summary
The implication and significance of the law of equity have been discussed in this work and
the reason for being the better version after the common law has also been depicted in the
case study. The main focus of the assignment is related to the case study of Gillian Fisher-
Pollard by her tutor Miles Fisher-Pollard v Piers Fishers Pollard. The reason behind the
unconscionable conduct and undue influence in this case study has been concluded in this
case study.

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Table of Contents
1. Introduction:........................................................................................................................3
2. Discussion:..........................................................................................................................4
2.1 Equity...............................................................................................................................4
2.2 Unconscionable conduct and undue influence.................................................................5
2.3 Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fishers Pollard............6
3. Conclusion..........................................................................................................................9

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1. Introduction:
The aim of the assignment deals with the case study of Gillian Fisher-Pollard by her
tutor Miles Fisher-Pollard v Piers Fishers Pollard which deals with the undue influence and
unconscionable conducts. The relationship between the law of equity and the common law
has been discussed in this case study. The reason behind such consequences of undue
influence and unconscionable conduct has been discussed in the following research in this
case. The significance of law of equity because of the common law have been discussed
along with the story of the case study which lastly resulted in the unconscionable conduct and
undue influence have been discussed in a detailed manner.

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2. Discussion:
2.1 Equity
The term equity is defined as the second system of law which is considered as the
difficulties of the common law, so in order to understand equity it is needed to first
understand the common law. Equity was developed in a separate court system and further
created to deal with the situation where the application of legal rules produced unfair
outcomes most of the time.
The common law is the problem solving system which reduces the disputes of the
binary question in a simple form which can be put to juries1. The traditional process of the
common law is to reduce the disputes of the parties into a form which could be reduced by
forming the set of questions in the yes or no format.
The common law is based on the traditions and customs where the royal courts were
in charge to make sure those proper administrations of law. The law of Equity is developed
by the Courts of Chancery for the purpose of making the common law system much better.
There is relationship between the common law system and equity as it fill the gap of law that
the common failed to figure it out. Equity is much transparent regarding the fair judgment to
the individuals which is further based on the rules of equity.
The law of equity is a much defined system where it helped the judges to find a
remedy regarding the damage and further boosts the remedies available for the parties2. The
merger of common law with equity is a much developed version in the judiciary process. The
1 Karl N, Llewellyn. The common law tradition: Deciding appeals. Vol. 16. Quid Pro Books, 2016.
2 Gino Evan, Dal Pont. "equity and trusts: Commentary and Materials." (2018).

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law of equity acts as a remedy when the common law failed to address some of the
significant legal issues in the system of law.
In respect to property, equity will grant orders to transfer interest from one person to
another. Equity has long recognized that the parties do not meet the equal footing, where in
some cases the difference should show the implementation of rights which have been gained
through the differences which may further have been foreseen at the time of entering into the
contract. Equity creates the right used by the people for the purpose of managing their
property rights and interest. Equitable interest is such interest which is created under the right
which is strong and it is guarded by equity diligently3.
2.2 Unconscionable conduct and undue influence
Undue influence refers to the situation where the customers where a particular person
induced to act otherwise by their own free will or without paying adequate attention to the
consequences such act. Undue influence occurs when an individual is able to persuade the
decisions of the other due to the relationship of the two parties. This is a situation when a
particular individual is unable to take advantages of the other party4.
Unconscionable conduct is the contract which is one sided which is unfair to one
party and therefore unenforceable by law. It is a contract which leaves one party with no
meaningful choice technically due to the major difference between the parties. Before
entering into an agreement, when one party does not engage with the other party without any
meaningful choice then it is said to have unconscionable conduct5.
3 Gary, Watt. Trusts and equity. Oxford University Press, 2018.
4 Jason, Fee. "Undue Influence: Inspirations from Australia?." Hong Kong Law Journal 48 (2018): 375-388.
5 Thyme, Burdon. "When the company line is unlawful: An overview of systemic unconscionable
conduct." Bulletin (Law Society of South Australia) 40.9 (2018): 22.

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Unconscionable conduct is quite a difficult doctrine where it focuses on one thing at a
time and interferes with someone else doing something to someone else later. It is a doctrine
which looks at the position of the parties when both the parties enter into contract or
obligations.
Undue influence and unconscionable conduct arises under similar circumstances and
further produces similar kind of outcome in case of the successful applicants. The rules are
different as per the focus and the basis. Undue influence further weakens the injured party
and put emphasis on the responsibilities of the stronger party, if there lies any contract
between the two parties.
2.3 Gillian Fisher-Pollard by her tutor Miles Fisher-Pollard v Piers Fishers Pollard
In this case study, the plaintiff is Gillian Fisher-Pollard by her tutor Miles Fisher-
Pollard and the defendant Piers Fisher-Pollard is the parties considered in this case study.
From the case study it can be stated as per the unconscionable conduct where the
unconscionable on the party who is seeking to enforce the contract and in this case before
entering into the contract the defendant was in a debilitated condition6.
As per jurisdiction of the law of equity against unconscionable dealing which is
developed from the Court of Chancery assumed at an early stage to set aside the transactions
where the expectant heirs dealt as per their expectation without being adequately protected on
the pressure created due to their poverty7. The jurisdiction is related further circumstances
where a party in a particular transaction under certain disability to deal with the other party in
a situation where there is absence of reasonable degree of equality between both the parties.
Hence, such disability is enough to make the other party stronger in order to make it unfair or
6 "Gillian Fisher-Pollard By Her Tutor Miles Fisher-Pollard V Piers Fisher-Pollard - NSW
Caselaw ." Caselaw.nsw.gov.au. N. p., 2019. Web. 4 Apr. 2019.
7 Virgo, Graham. The Principles of Equity & Trusts. Oxford University Press, 2018.

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rather unconscionable8. The weaker party agreed towards the challenged transaction which is
accepted by that party lastly. This kind of circumstances existed in this case where in that
particular transaction the stronger party was fair and reasonable.
The equity remedy or solution of such kind of unconscionable transaction is the
principle of undue influence which are closely related9. This kind of action can make serious
impact on the weaker party where special disability for the purpose of the principle related to
relief against unfair or unconscionable dealing as it takes various forms which is descriptive
in nature10.
Undue influence has been meant to define different things which are the following
elements in this case which is misrepresentation, abuse of confidence and the amount of
pressure in the common law force11. The reason behind no clear distinction between the
undue influence and such kind of pressure as it arises from widely different source where one
of it is having excessive pressure. However, as this pressure is one of the main sources of
influence that one person can have on another, it is not significant in this case is that the
pressure which leads to conclusion of undue influence is considered as improper in this case
study12.
By reciting the entire case study it can be interpreted that before the death of her
husband, the number of people observed that Plaintiff was having a cognition problem. This
8 Megan, Pearson. "Undue spiritual influence and the permissible interaction of religion and politics." Public
Law(2017).
9 Joh, Elizabeth E. "The undue influence of surveillance technology companies on policing." (2017).
10 Thyme, Burdon. "When the company line is unlawful: An overview of systemic unconscionable
conduct." Bulletin (Law Society of South Australia) 40.9 (2018): 22.
11 Jeffrey, Goldberger. "Unconscionable conduct and unfair contract terms." Commercial Law Quarterly: The
Journal of the Commercial Law Association of Australia 30.2 (2016): 17.
12 Mark, Pawlowski. "UNDUE INFLUENCE: TOWARDS A UNIFYING CONCEPT OF
UNCONSCIONABLITY?." The Denning Law Journal 30.1 (2018): 117-151.

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problem was recognized first by the husband and the doctors and was also observed by the
Defendant. The Plaintiff enjoyed a happy relationship with her husband in the meantime and
the financial aspects was also looked by the husband. There is no evidence regarding the
acquisition, sale of the real estate assets and also there is a lack of evidence regarding the role
played in setting up and further monitoring the annuities dealing with the bank accounts.
Her husband has put together the share of portfolio without any reply from the
plaintiff. With the assistance from the expertise Mr. James Noble, the Plaintiffs husband had
become interested in substantial collection of coins. Again in this case there is lack of
evidence regarding Plaintiff played any role in collection of coins or negotiable of any further
arrangements with Mr. Noble. The Plaintiff is a former nurse and an individual who has a
spirited personality and a good sense of humor.
As she has a problem regarding the physical and the mental state that’s why it is not
possible for her to give satisfactory evidence. However she swore a proclamation that no
reliance has been placed on it for good reason13. Due to the closeness in the relationship
between Plaintiff and her husband, such illness further impacted on the husband interest. The
stress associated with the illness of her husband further worsens her cognition and memory
issues. In this study there is lack of evidence regarding the many situations in case of the
Defendant. After the death of her husband, she faced lots of hurdles for such loss. The
Plaintiff hated to stay alone and finally decided to move to Sydney in order to stay with the
defendant14.
13 Lewis, Chiat. "When undue influence becomes elder abuse-the Public Trustee's intervention in pre-death
property dispositions." Brief 45.1 (2018): 22.
14 Sharon, Thompson. "Thorne v Kennedy: Why Australia's decision on prenups is important for English
law." Family Law48 (2018): 415-419.

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This reason increased the vulnerability, despite of that she tried to be brave to
accompany the strangers. With the defendant and her close friends, cognitive and the memory
issues of her were oblivious during this moment15. At last the defendant played upon her
emotions and snatched his share of transactions into his name. Actually the defendant was
doing from the perspective of what her mother wanted in this case study. He knew about the
consequences of her cognition and the memory issues and accordingly engineered the various
transactions16.
15 Peter MacDonald, Eggers. Vitiation of Contractual Consent. Informa Law from Routledge, 2016.
16 Jeannie Marie, Paterson and Gerard Brody. "“Safety net” consumer protection: using prohibitions on unfair
and unconscionable conduct to respond to predatory business models." Journal of consumer policy 38.3 (2015):
331-355.

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3. Conclusion
From the above discussion in this particular case study, it can be concluded that
defendant has engaged in the unconscionable conduct. The Plaintiff had a special
disadvantage related to her profound grief and degradation of such mental illness. Further the
defendant knew about the existence and the effect of such kind of disadvantages and
unconscientiously took its mere advantage. The above facts also support the findings of
undue influence as the Plaintiff’s will was so subordinated to the Defendant that such kind of
transaction raise an assumption of undue influence in this case. The transaction which took
place was careless and further procured by the Defendant in such a way that it set aside
between the Plaintiff and the Defendant.

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References
"Gillian Fisher-Pollard By Her Tutor Miles Fisher-Pollard V Piers Fisher-Pollard - NSW
Caselaw ." Caselaw.nsw.gov.au. N. p., 2019. Web. 4 Apr. 2019.
Burdon, Thyme. "When the company line is unlawful: An overview of systemic
unconscionable conduct." Bulletin (Law Society of South Australia) 40.9 (2018): 22.
Burdon, Thyme. "When the company line is unlawful: An overview of systemic
unconscionable conduct." Bulletin (Law Society of South Australia) 40.9 (2018): 22.
Chiat, Lewis. "When undue influence becomes elder abuse-the Public Trustee's intervention
in pre-death property dispositions." Brief 45.1 (2018): 22.
Dal Pont, Gino Evan. "equity and trusts: Commentary and Materials." (2018).
Eggers, Peter MacDonald. Vitiation of Contractual Consent. Informa Law from Routledge,
2016.
Fee, Jason. "Undue Influence: Inspirations from Australia?." Hong Kong Law Journal 48
(2018): 375-388.
Goldberger, Jeffrey. "Unconscionable conduct and unfair contract terms." Commercial Law
Quarterly: The Journal of the Commercial Law Association of Australia 30.2 (2016):
17.
Joh, Elizabeth E. "The undue influence of surveillance technology companies on policing."
(2017).

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Llewellyn, Karl N. The common law tradition: Deciding appeals. Vol. 16. Quid Pro Books,
2016.
Paterson, Jeannie Marie, and Gerard Brody. "“Safety net” consumer protection: using
prohibitions on unfair and unconscionable conduct to respond to predatory business
models." Journal of consumer policy 38.3 (2015): 331-355.
Pawlowski, Mark. "UNDUE INFLUENCE: TOWARDS A UNIFYING CONCEPT OF
UNCONSCIONABLITY?." The Denning Law Journal 30.1 (2018): 117-151.
Pearson, Megan. "Undue spiritual influence and the permissible interaction of religion and
politics." Public Law(2017).
Thompson, Sharon. "Thorne v Kennedy: Why Australia's decision on prenups is important
for English law." Family Law48 (2018): 415-419.
Virgo, Graham. The Principles of Equity & Trusts. Oxford University Press, 2018.
Watt, Gary. Trusts and equity. Oxford University Press, 2018.