The Use and Misuse of Equitable Election

Abstract

The propriety and even existence of a doctrine of ‘equitable election’ is a long-standing, little-explored mystery. In Australia, as well as in England, it has been repeatedly pronounced by both courts and commentators that the notion of election comprises multiple doctrines and there is a fundamental divide between election at common law and election in equity, each eliciting a distinct doctrine operating to the exclusion of the other. However, expository analyses of the notion of election, particularly of its theoretical foundation, have thus far been restricted to its manifestation at common law. There is as yet no convincing rendition of the application of that notion in equity. Indeed, it is far from clear in what circumstances equitable election might be invoked and what its precise scope of operation is. In this respect it seems to be less established than common law election. Nevertheless, even still covered in mist, equitable election is equally infected with an abnormality that has haunted common law election since its birth, an abnormality which consists in Anglo-Australian law’s persistence in the position that an act of election should be regarded as invariably and innately irrevocable. At the heart of this abnormality lies an inexplicable lack of convincing explanations or justifications for the obligatory effect, or irrevocability, of an election.

Keywords: Equitable Election, Common Law