LAW3103 Equity Unit Plan 2019 PDF

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Study guide including lecture summaries...

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Edith Cowan University Faculty of Business and Law School of Law and Justice

LAW3103: Equity UNIT PLAN (Inc Study Guide with lecture summaries) Semester 1, 2019 Unit Co-Ordinator: Anthony Hevron

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LAW3103: Equity, Semester 1, 2019

Unit Plan

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LAW3103: Equity, Semester 1, 2019

Staff Unit Co-Ordinator, Lecturer & Tutor Name

Anthony Hevron

Room #

JO 2.319

Phone #

eMail

6304 5621

Consultation times

[email protected]

See Blackboard

Support staff contacts Name ECU Counselling

Role

Room #

ECU Counselling Service

ML 3.128

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Phone #

9307 6706

eMail

[email protected]

LAW3103: Equity, Semester 1, 2019

Introduction Welcome to Equity. Equity examines some of the doctrines and principles that were developed by the courts of chancery and which are still applied in the commercial law of Australia today. This Unit Plan includes a study guide that provides readings relevant to the topics of this unit, along with lecture summaries, mock exam questions and topics for your presentation assessment.

Expectations of lecturers and students This unit is conducted in accordance with the Student Charter (available at: http://www.ecu.edu.au/ prospectus/charter/). Lecturers and students must all be mindful of common courtesies such as timely arrival to class, notification of absence, ensuring mobile phones are switched off, and allowing each person the opportunity to contribute and to gain as much as possible from the unit.

Prerequisite LAW2312 (Property Law II) unless otherwise waived in writing by the Head of the School of Law and Justice or the Law Course Co-ordinator.

Learning outcomes You will find the Learning Outcomes for this unit in the Course Handbook on the ECU website.

Unit content 1. 2. 3. 4.

The history of equity and maxims of equity. The nature and extent of equitable estates and interests and how such estates and interests may be dealt with. The nature and extend of fiduciary obligations. Availability of equitable remedies, including specific performance, injunctions, rescission, rectification and equitable damages with particular attention to the following grounds for relief in equity in the context of: a. breach of a fiduciary relationship; b. confidential information; c. undue influence; d. estoppel; e. unconscionable bargains; and f. relief from forfeiture and the rule against penalties.

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LAW3103: Equity, Semester 1, 2019

Teaching and learning processes Lecture and tutorial: time and location details For current details, refer ‘SIMO’ via ECU website; use unit code LAW3103. Introduction Three hours per week at the allotted times and day that will include the following learning modes: 1. 2.

a lecture component: aimed at providing students with the knowledge of the important principles and sections of the Act relevant to the course, and a tutorial component: aimed at further developing knowledge and insight through revising legal principles and sections of the Corporations Act covered in the lectures and applying them to hypothetical cases and theoretical questions

Lectures The lectures are delivered for: 1. 2.

oncampus students: in person in a 2 hour session; or for online students: in the form of recorded lectures to be found in the “Lectures & Tutorials” link in Blackboard.

However, in both cases, students who can are free to attend/listen to either form of lecture. Online Lectures! All the lectures in this unit are pre-recorded and available to students from Monday of Week 1 of the semester. Length! I understand that the length and style of recorded lectures varies across the online degree. In this and the other units that I teach I have adopted a relatively consistent style. I say “relatively” because the lectures have been recorded over some years and so fonts and heading styles have evolved somewhat. At one point I was recording the lectures in much the same way that I present live lectures, which is in one hour block. Some of the lectures may still be in this form when you come to watch them. Over time I have found that it is very arduous for me to record and for you to watch, so I have started breaking them down into shorter sections. Besides the ease of recording, this has an extra benefit. I have been teaching these subjects for some years now and I have found that there are some areas where extra explanation is needed. Which means ironically, that while the recordings are generally shorter, in total they are usually longer. While in a live lecture I am limited to a set amount of time, there is no natural limit to the length of a recorded lecture, if you just make another section. As I have also found that online students, who Page 5 ! of ! 247

LAW3103: Equity, Semester 1, 2019 have a reduced opportunity to ask questions, sometimes need more explanation, I have taken some time to provide a more complete explanation of various points than I am usually able to give in a live lecture. This should ensure that you have access to a lecture that is at least as informative as a live lecture. The reason to mention this is that you may want to take this into account as you go through the topics. Not every topic’s lectures are the same total time as other lectures. Changes in lectures! Most of the content does not change from year to year, so rather than rerecording the whole course each year, I provide updates from time to time. As noted above, this can result in changes of style, file size and so on. References to texts may not line up, if a new edition of the text has been published since the lecture was recorded. Despite this, a lecture, or part there of that was recorded a year or even a decade ago is not, in itself, a problem. Some of the cases we work with in this unit are hundreds of years old. While I broadly follow the text, I don’t base the lectures strictly on the text, there is a lot in the course you won’t find in the text. Generally, these changes are loaded before the semester begins. In rare cases I make a change during the semester. In such a case, I will make an announcement with the details, and any steps that you should take. Pacing yourself! As the whole course is available to you all semester you are free to set your own pace, though the suggested programme is a good one in that it will be plenty of work to keep up with, but it also allows you time to come to terms with the concepts that you will be learning. Streaming and no downloading! The lectures are presented in streaming form. They are not available for download, and copies of the slides will not be provided. There are various technical reasons for this to do with file size and copyrights, but the bottom line is that streaming lectures and the lecture summaries in this document are the only lecture material provided. You also have the lecture summaries in this document plus a text and various readings listed in each section and I think that is more than enough information for you to keep up with. All the references in the lectures are contained in the lecture summaries provided in the Study Guide section of this document, which is provided in pdf form in the Blackboard system. Note taking and in class behaviour! This is a third year unit, and I hope that you are all well on your way to developing a style of study that is effective for you. The following are a few comments (though 3 onward are primarily for on campus students) based on my experience with past classes. You will hopefully find them redundant, but just to be on the safe side… 1.

Attend lectures and tutorials. I do not mind if you do not attend class, but you should. The single best marker for student success in this unit is attendance. You can attend lectures and tutorials if you are on campus, or keep up with lectures and attend online Page 6 ! of ! 247

LAW3103: Equity, Semester 1, 2019 tutorials or regularly post in the Discussion Board you will get through the material and find out what you don’t know in time to address it before the exam. 2.

Take notes, handwritten preferably. I know it is the 21th century and times have moved on, but not in every way. Following on from attending lectures, you also need to pay attention to the lectures and try to get the information that is washing past you into your head. The best way to do that is by paying attention to what is said, and repeating it to yourself. Preparing your own notes (handwritten, or hand typed if you prefer) makes you attend to the content as you filter the lecture and produce your notes. Also, the exam is handwritten, and so you can really benefit from practicing your penmanship. No really, you can.

3.

Recording lectures (and tutorials).As indicated above, I provide recordings of material covered in lectures. The School has a policy to not record online tutorials involving small numbers of students (which is generally the case in this unit). ECU does not permit students to make their own recordings of lectures and tutorials.

4.

DO NOT TOUCH YOUR CELL PHONE. This will surprise some of you: I am not a television. If you attend a lecture and use your cell phone, tablet or similar: I can see you. I realise that you have lives outside of class, but when you are in class please try to keep your attention on the work at hand. You are not “attending a lecture” unless you pay “attention to the lecture”. Doing otherwise is no help to you, and it is disrespectful to the class generally and your lecturer or tutor.

Shorthand and defined terms When I am writing my notes I use a form of shorthand for legal terms that have established meanings. That way I can get down my notes without repeating in long hand the same terms every time they come up. By way of example, I can tell you now, you are going to hear the word “unconscionable” a lot this semester. You can save a great deal of time and ink by using a shorthand glyph in place of the word. For “unconscionable” I use “UNC”. However, the particular shorthand that you use is for you to decide, they are your notes after all. These same words are also likely to be defined terms. Defined terms! Sadly, the language that lawyers use to talk about some equitable doctrines changes often, for no particular or good reason. In legal drafting, to reduce this problem to manageable proportions, drafters often define concepts and then use a standardised name to refer to that concept. They are essentially creating “proper nouns” for these concepts, nouns that are not used outside of that document or setting. To make this unit more comprehensible I have adopted this technique and settled on a set of standardised defined terms. In this unit when I use these terms I mean one thing and that thing only. Unfortunately, in the real world outside this unit (which includes the reading that you do for this unit) you will encounter a range of usages.

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LAW3103: Equity, Semester 1, 2019 Capitalisation! In most commercial drafting you will find that when a word is “defined” in the way I referred to above, it is also capitalised. This follows from the idea that the defined concept now has a proper noun (or name) I have followed that practice in the presentation of this unit. Where a word or phrase such as Undue Influence, or Estoppel is used as a defined term, it is capitalised. A list of the defined terms used in this unit, together with the shorthand that I use in my notes is included in the Annexures to this document. While this usage of capitalisation is common in the profession it is not universal. Feel free to adopt it, or not, in your own drafting. However, if you do you must define the terms yourself. Your major paper is formal writing, and so if you want to use a defined term you must define it the first time you use it and provide the “proper noun” that you intend to use. Having done that you should only use that name to refer to the defined concept, and only refer to the defined concept by that name.

Tutorials Tutorials for online and oncampus students are the same. On Campus! On Campus students are expected to attend 13 tutorial sessions (1 per week). However, online students (who are able to) are also welcome to come along and join in. The sessions are 50 minutes in length and start promptly. The times and locations can be found in the SIMO system. Participation! Points in this unit are allocated to participation in tutorials. Participation requires that you engage in some way. This will mean contributing to the discussion, by proposing an answer or asking a question. Not Attendance! Sitting at the back of the room (or listening to an online tutorial) saying nothing (or posting nothing) may be attendance: it is not participation. Discussion Board! Discussion Boards are primarily directed to Online students though Oncampus students may also use the Discussion Boards if they wish.

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LAW3103: Equity, Semester 1, 2019 Model answers! On a related point, I do not provide written specific model answers to specific questions in this unit. That said, every lecture and tutorial that I run, both on campus and online is an answer modelling session. So I do provide the relevant information as a part of those processes. If you are in doubt, feel free to contact me in office hours for further help. Online tutorials! Each week of the semester I will run an online tutorial via the Blackboard Collaborate system. The sessions will run on the same terms as the oncampus tutorial. The online tutorial is a much closer approximation to a “traditional” tutorial than the Discussion Board, in that it keeps pace with the unit, and provides you with more direct contact with me, than the more flexible and relaxed Discussion Board posting system. Technology! As we usually pick up a few on campus students who need to study this unit online for various reasons it is worth repeating the technology requirements for a Blackboard Collaborate session. You will need: 1. 2. 3. 4.

A quiet place to sit; with A computer with a reasonably fast internet connection; and a browser (Firefox and Chrome seem to be reliable); and headphones and a microphone.

I note that the first week’s tutorial in this unit is primarily a general overview and “tech rehearsal” so we can be sure that we can get to work on the subject matter of the unit in Week 2 and beyond. Time and place! The link to the online tutorial room for this unit is in the “Lectures & Tutorials” tab in blackboard. Though you can use that link once, and then create your own link in your browser and get in directly in future weeks. The time will be during office hours, at a time to be announced in Blackboard before the beginning of the first week. The time moves from year to year, as the on campus classes are moved. Logging in! When you go to log in you must use your ECU username and password. I do not admit guests to the tutorials. This is partly so that I: 1. 2.

know that the people in the tutorial are enrolled students; and can allot the tutorial assessments correctly.

Online Etiquette! Some of our online students are only online because they have responsibilities that prevent them from getting to the campus for class. In the past there have been two versions of this situation that can raise some issues. Page 9 ! of ! 247

LAW3103: Equity, Semester 1, 2019 Small Children! We have some students with small children at home, and getting to class in not practical. In such cases from time to time the children may need some attention during the tutorial. There are two things to be said: 1. 2.

A little background noise is not a problem; and if you need to give someone some attention, that is fine; but please turn your microphone off first.

I don’t mind you stepping away from the class to deal with something, or having someone in the next room making some noise, just try to manage the impact of these things on the rest of the class. Attending from work! Several students in the past have attended an online tutorial from their work. That raises some issues in the relationship that you have with your employer and co-workers. I will not intrude into the relationships and responsibilities that you have at work, though I do have a couple of comments based on my past experience. It is possible to log into the tutorial and then go off and make yourself a coffee, read a blog or whatever and wait for it to be over. So just like in a real tutorial I only recognise participation that includes actual participation or interaction in the class. If you cannot speak using your microphone you can listen and interact by the use of the chat system. A bare assertion that you are “at work” and can’t talk, is not enough. If interaction in an online tutorial is not possible, then the Discussion Boards are the option for you.

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LAW3103: Equity, Semester 1, 2019

Email protocol I am always happy to hear from you, and email is a handy way to get in touch, but the way you do it matters. Broadly, there are three issues: 1. 2. 3.

Identification and use of your ECU email account; Courtesy and formal requirements; and Timing.

Identification All emails must be sent from your student email account or via Blackboard. There two reasons for this: 1. 2.

Anti-spam filters may prevent it from being delivered to me at all; and Your email may raise issues of privacy or identity.

If I were to get an email, from “[email protected]” for example, claiming to be “Bob Smith” (a student in this unit) I will not share private information with that email address, or take it seriously if the email could effect that student’s enrolment in this unit. As any communication with “smarty5000” is going to be limited, and generally I ignore them entirely. The ECU website has information on how to make sure that your student email account is properly set up. It includes the settings for using student email from your phone or tablet computer.

Courtesy If you are writing to me, most commonly you will be asking for something. As the saying goes, you catch more flies with honey than vinegar. Giving me the information that I need to understand your request, and framing it politely can only help you. In case you think that I am just being snotty and self important, I will just say that email is an increasingly important mode of communication in the profession. Communication between lawyers even when very friendly and relaxed is still formal in the way I am asking you to be. Consider this a preview of life in the profession. Further, I receive many emails a day, and also teach other units, so if your email does not contain the the information detailed below, it may well remain unanswered. When using email to communicate with me, you should always make sure that your message contains the following: 1. 2.

A subject line that contains the unit code, and clearly describes the nature of your query or request. Address your lecturer appropriately by name and title: (Mr Hevron). Page 11 ! of !247

LAW3103: Equity, Semester 1, 2019 3. 4.

State your question, request, or other statement clearly; and concisely in grammatically correct English. Insert a signature at the end of your email that contains: a. your name in full...