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3 Deakin L. Rev. 147 (1996)
Finding the Better Equity: The Maxim Qui Prior Est Tempore Potior Est Jure and the Modern Law Relating to Equitable Priorities

handle is hein.journals/deakin3 and id is 153 raw text is: Finding the better equity?: the maxim qui prior est tempore potior est jure and the modern law relating to equitable priorities Henry Long* 1. Introduction Sir George Jessel MR once observed that equity, unlike the common law, was not supposed to have been established since time immemorial.' That few now, other than the most ostrich-like common lawyers, would consider the common law to be anything other than judge made does not lessen the importance of acknowledged judicial creativity in equity. Such importance is apparent both in the past and in the present. An example of this process of creativity may be found in the area of equitable priorities. This article examines the maxim qui prior est tempore potior estjure ('the maxim') in relation to equitable priorities. In turn are discussed the origins of the maxim, its reasons, its restatement by the High Court in Heid,2 the exceptions to the maxim, equitable priorities in Torrens land and matters of personalty, relative priorities and likely future developments. 2. The origins of the maxim The older cases most frequently cited as authorities for the maxim are Phillips v. Phillips3 and Rice v. Rice.4 In the former of these two (decided in 186 1) Lord Westbury LC described the maxim as embodying 'elementary rules'5 which had BA (Hons) (Macq), LLB (Newcastle). In re Hallet's Estate Knatchbull v. Hallett (1879) 13 Ch D 696 at 710. 2 Heid v. Reliance Finance Corp Pty Ltd & Anor (1983) 154 CLR 326 (Heid). ' (1861)4 De FG & J208; 45 ER 1164 (Phillips). 4 (1853) 2 Drewry 73; 61 ER 646 (Rice). It has been suggested that Cave v. Cave (1880) 15 Ch D 639 (Cave) is the English authority most cited. Oakley, A.J., 'Judicial Discretion in Priorities of Equitable Interests' (1996) 112 LQR 215 at 215. Maitland is one who took Cave as the leading case: Maitland, F.W., 1920, Equity: The Forms of Action at Common Law, Cambridge University Press, Cambridge, 13 1. It is not an important point as both Rice and Cave approach the maxim in the same manner. Phillips, fn. 3 at 217; 1167.

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