ICL Banking related topic !

The Scope of the Jurisdiction to Grant Relief against a Penalty Clause

27 Apr 2013

<>Second Para -which is the third of the 3 classes referred to ?- unless 'interest' spoken of under 'honour fee'is a class by itself?
In this context, one remembers to have come across instances in which an overdraft facility-which is normally granted for 'working capital', also on the condition that all business receipts /collections should routed through the same overdraft account-being misused. Say,used for an extraneous or unauthorized purpose- e.g. investment in tax free bonds; despite banks being supposed to keep monitoring closely such accounts. What the law/case law says, or practice is ?- in other words, will the consequence be a mere 'penalty' or withdrawal and revocation once for all of the facility itself ?
A closer study of such intricate facets by law experts may be worth an attempt.

 

<><> Add-on

Going by one's limited knowledge /understanding, the concept of 'equity' is simply as old as the 'common law'. And in a manner of speaking , equity itself is a common law doctrine evolved later, not separate or identifiable by any clear line of demarcation. Should that be so, some of the observations made wprt the Australian case law will require a further study in proper light and with due focus.

In short, statute law and common law are the two broad classifications, in one of which any doctrine or precepts evolved from to time has to be tasken to fall.

In the public domain, one finds any number of useful material; for instance,- @http://www.britannica.com/EBchecked/topic/128386/common-law/40227/Bracton-and-the-influence-of-Roman-law#toc40229

http://community.boredofstudies.org/showthread.php?t=63202

common law : Bracton and the influence of Roman ... - Britannica.com

www.britannica.com/EBchecked/topic/128386/common-law/40227/Brac...

It was modeled on the Institutiones (Institutes), the 6th-century Roman legal classic by Justinian I, and shows some knowledge of Roman law. However, its ...

Xcerpts>

I  "Equity can be described but not defined. It is the body of law developed by the Court of Chancery in England before 1873. Its justification was that it corrected, supplemented and amended the common law. It softened and modified many of the injustices in common law, and provided remedies."- Meagher, Gummow, Lehane, 'Equity, Doctrines and Remedies'

II. The Chancellor was like the role of a modern-day prime minister. Since most early Chancellors only had a working knowledge of the common law system (they were educated in Canon Law), the extraordinary jurisdiction of the Chancellor was based on principles of honesty, equity and conscience.

Since equity developed over time, and without a strict pattern of development, it is not a complete legal system. it must be stressed that equity was only ever meant to SUPPLEMENT and AMELIORATE the inadequacies of the common law.

by the 15th to 17th century the Chancery, exercising equitable jurisdiction, had been bogged down by its own procedures and rituals, and the greediness of the chancery clerks (who took 'presents' from claimants).

thus equity hardened into a 'branch' of law, governed by rules like the rules of common law. evenutally, the Judicature Acts 1873, 1875 (UK), fused the two jurisdictions, so that both common law and equity would be applied by the same court.

this move was quickly emulated by most Australian states, with the exception of New South Wales, which was the last state to fuse the two jurisdictions by the enactment of the Supreme Court Act1970.

<<<> Undelying any such feedback is a true and devoted sincerity of purpose- to try and dispel any illusion , however remotely sensed it be, and provide a positive and multi-dimensional / directional attitude /approach, to impress upon and stress that any study, especially on a staute law or cmmon law related topic - which is a road perennially under disrepairs, hence in need /on demand for a persistent and continuous repairs - that is, always under 'repairs' and  'in-prgress' , -so to caution !