3. How are the Common Law and the Rules of Equity operating in Hong Kong?
The most distinguishing feature of common law is the reliance on when making court judgments. It is not restricted to judicial decisions generated within Hong Kong but case law from all jurisdictions throughout the common law world. Article 84 of the Basic Law provides that the Hong Kong courts may refer to case precedents from other countries under common law jurisdictions. In addition, the Court of Final Appeal and the Hong Kong Judiciary are given the power to invite judges from other common law jurisdictions to participate in the judicial processes.
The major distinction between common law and the rules of equity is that common law remedies are available as of right, while remedies in equity are discretionary. The court does not have to grant an equitable remedy where it regards the behaviour of the party seeking such an equitable award does not deserve such an award. The usual equitable remedies include injunction (a court order requiring someone to stop doing something) and specific performance (a court order requiring one of the parties to a contract to perform his/her part of the contract).
The rule of equity also prescribes that a person who lodges a complaint must come with clean hands. In this case, the Registrar is removing defamatory messages from the forum. He is discharging his official duties. As stated clearly in the Registrar's message of 2005/10/15 9:39:12, any person who wants to complaint against the Registrar for deletion of their messages should lodge a complaint with full name and contact means available to the Committee on Administration. The forum is not a suitable venue for handling such complaints.
General equity. The general sense of equity, as used by Calvin and others, is a principle which undergirds all laws in general, much as love is said to undergird all of the divine law.
Equity, as it is natural, cannot be the same in all, and therefore ought to be proposed by all laws, according to the nature of the thing enacted. As constitutions have some circumstances on which they partly depend, there is nothing to prevent their diversity, provided they all alike aim at equity as their end. Now, as it is evident that the law of God which we call moral, is nothing else than the testimony of natural law, and of that conscience which God has engraven on the minds of men, the whole of this equity of which we now speak is prescribed in it. Hence it alone ought to be the aim, the rule, and the end of all laws.
Particular equity. The particular sense of equity, the one which concerns us here, may be defined as a correction of a defect or error in the law, or a necessary exception to the law in order to prevent an unjust hardship.
From this method of interpreting laws, by the reason of them, arises what we call equity
We have discovered that law is something permanent, uniform and universal, supra. It would be helpful to determine at this point the extent to which the biblical record supports the concept of equity as a necessary or desirable exception to the law. Accordingly, the present task is to discover instances in the Bible where God's law is viewed as defective or erroneous, as contrary to justice, or subject to exceptions.
There could not be a proprietary right to the exclusive possession of part of a multi-storied building except as an incident of common ownership in the land and building. Vendors were, at the time of the agreement, co-owners of the land. They all derived their title ultimately from the developer. In this case, so long as the developer had the right of exclusive possession to the utility rooms and the roof spaces, he was able to pass such right to subsequent purchasers of undivided shares, including the vendors here. It followed that any person who acquired an undivided share could acquire the exclusive use of any space in the building and exercise proprietary rights over such space.
Clause 18(e) and the time limit clause precluded the purchaser from basing any objection to title on the cocklofts point. The argument that there was a rule of equity preventing a vendor from relying on such clauses where he knew, or ought to have known, of a defect in title was putting the matter too broadly. While the courts were reluctant to construe such a term as enabling a vendor to mislead the purchaser, the position was different if the vendor did not know of the defect, but had the means of knowledge, or if the defect was technical and the purchaser might reasonably accept it. It was the duty of the vendor to deduce and convey good title; if he relied on contractual terms to shift the risk of any defect in title to the purchaser, the language must be clear. In this case, the language of the clause was apt to cover the cocklofts and it was clear. In the absence of evidence that the vendor knew the cocklofts were unauthorised, the purchaser was bound by the clause. Clause 19 also precluded the purchaser from raising any objection to title on this ground.
