Preview: The Equity of Exoneration with Dr Paulina Fishman and Dr James O’Donovan
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The equity of exoneration is a little known equity which doesn’t even appear in standard equity textbooks. It goes back over 300 years to a UK case in 1702, a time when women didn’t have the right to vote and married women didn’t have the right to own property on their own. Normally, it applies in a husband and wife situation where the wife grants a mortgage or charge over her property to assist the husband to obtain money for his business. In bankruptcy or insolvency, the equity of exoneration protects the wife’s interests by entitling her to the surplus proceeds of sale. Dr James O’Donovan (Author, Perth) and Dr Paulina Fishman (Lecturer, Deakin Law School, Melbourne) discuss the equity of exoneration.
Discussion Includes:
- Genesis of equity of exoneration
- Three basic elements
- Can the equity of exoneration be excluded?
- Can onus of proof shift to party resisting the equity of exoneration?
- Relationship between Yerkey v Jones and equity of exoneration
- Equitable charge
- Equity of exoneration and rights of mortgagee and unsecured creditors
- Quia timet
- Is it all or nothing with the equity of exoneration?
- Benefit for wives of equity of exoneration or Yerkey v Jones rule
- What about the unsecured creditors?
Presenter Profiles
Dr Paulina Fishman Dr James O’Donovan
BIBLIOGRAPHY
Cases
- Duncan, Fox, & Co v North and South Wales Bank (1880) 6 App Cas 1, HL
- Huntington v Huntington [1702] EngR 126 c 75
- Paget v Paget [1898] 1 Ch 470
- Yerkey v Jones [1939] HCA 3
Legislation
- Personal Property Securities Act 2009 (Cth)
- Property Law Act 1958 (Vic)
- Conveyancing Act 1919 No 6 (NSW)
Other
- Justice Collier “Bankrupt husbands and the application of the doctrine of exoneration in Australian law: moving into the 21st century”, (2008) 82 ALJ 661