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Super Summaries Notes

Law Notes > Property, Equity and Trusts 1 Notes

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Property, Equity and Trusts - Super Summaries Part 1 - Introductory Material Concept

Key Cases

Issue

Property and contractual rights

King v David Allen & Sons

Whether a contractual right to post billboards survived the leasing of the property

Principle

*

Ratio A contract creates a personal obligation (Lord

*

Buckmaster LC)

Comments Whatever rights created have been taken away by preventing them from being exercised.

*

Three kinds of license exists:

*

be revoked at will upon which licensee leaves at reasonable time (Wood v Leadbitter)

The landlord is liable in damages

*
Whether a licensee can rely on the remedy of trespass

*

No possession exists for a licensee unless coupled

*

with a profit a prendre.

*

Mere physical presence or physical use does not suffice to invoke trespass

The plaintiff has no legal rights through the license except the permission to occupy which does not contemplate the physical exclusion of others

*

Contractual license - from contract, bound by contract; damages breach depends on nature (Jarvis v Swan Tours). Can be broken by a BFPFVWN

Note: licenses not enforceable against third parties Georgeski v Owners Corporation

Bare License - no contract, can

*

Proprietary License - cannot be revoked

Even if a profit a prendre existed it would only be relevant to injunctive relief if someone attempted to dismantle the jetty; rather than just enter it

Property Rights and the rights of persons

Moore v Regents of UC

Whether liability in conversion is preserved for unauthorized use of cells

*

Conversion liability should not be extended on

*

grounds of policy

The protection of patient's rights can be adequately covered by disclosure obligations, conversion would eclipse the physician's innocent judgment as a strict liability tort

*

Research would be hindered by restricting access to free and efficient raw materials

*

The legislature should make this kind of decisions since they can reach an expert opinion

Property rights, reputation, personality and privacy

Victoria Park Racing and Recreation Grounds Co v Taylor

Whether a property right existed in a spectacle that was infringed by one commentating from above?

*

Though an occupier can exclude their neighbour's view, it isn't wrongful to overlook land or create artifices to destroy their privacy; no action can be maintained against them (Dixon J)

*

It can be discerned that freedom from view is not a legal or natural right.

*

Interference with business does not equate with enjoyment of land and is not actionable without quasi-property rights

Henderson v Radio Corp [NSWSC]
- well-known ballroom dancers can restrain distribution of record covers even if not used in the same industry Sykes v Fairfax - Person who invented certain column entitled to

Property, Equity and Trusts - Super Summaries (as in the US)

ABC v Lenah

Whether a third party who obtains footage from another who trespassed to obtain it is answerable to the trespassee.

*

A tension exists between privacy and free speech - the price of living in an organized society is observation by others. A fine line exists between 'public' and 'private'

*

The line isn't so easily drawn between 'public and private; but without being complicit in the illegality there is no reason why the appellant can't publish the information it has.

Trespass

*

exclusive use because of reputation built

Cf Victoria Park w/: Emcorp v ABC - Injunction restraining ABC from televising film by workers who trespassed (cf Church of Scient. V Transmedia)

A nexus must exist between the trespasser's tort and the appellant's conscience. Only if the appellant was party to the trespass could an injunction be granted and then only if the activities filmed were private

*

IFF the information obtained was confidential could breach of confidence provide a remedy. Otherwise, even if tortuously obtained, this doesn't make it unconscientiously for a third party to publish

Concept

Key Cases

Issue

Property and the right to work

Dorman v Rogers

Whether a right to appeal existed on 'property' (right to work - a practicing certificate) allegedly worth over $2000

Principle

*

A right to appeal exists for claims more than $20,000

Ratio

Comments

Gibbs CJ

In general right to work not a property right (Forbes v NSW Trotting - punter didn't have a right to work at the races)

*

No appeal lies - the right to practice isn't capable of valuation

*

What is valuable is the person's own earning capacity since he may earn even more without the practicing certificate

Stephen J

*

The distinction is that this right is incapable of transfer and its dependency on personal qualities; unlike other readily

Property, Equity and Trusts - Super Summaries transferrable instruments

*

What is lost is not the monetary effect but the loss of personal qualities which is required to practice

Davis v Commonwealt h

Whether Commonwealth 's authority to commemorate the bicentenary extended to making offences of making symbols capable of being mistaken for them.

*

No, the exercise of legislative authority in this case would extend beyond commemoration to the attainment of objects as if they were independent of commemoration

*

The effect of this provision gives authority to regulate the use of everyday expressions; this is grossly disproportionate to the need to protect commemoration

*

The sections reach too far beyond their legitimate object

Property, Equity and Trusts - Super Summaries Part 2 - The Doctrine of Fixtures Concept

Key Cases

Issue

Fixtures in general

Belgrave Nominees v Barlin-Scott AC

Whether airconditioning unit affixed by a complex process, bolted to the ground was a fixture or chattel.

Principle

*

Ratio If a chattel is fixed by means other than

*

its own weight, prima facie it is a fixture

*

Here it is clear that the AC unit was

on both

*

*

The intention of the person

*

If it cannot be removed without

May v Ceedive

*

Whether house was chattel given that C did not buy the land but only the house

*

*

Given that the onus of proof rested on the defendants, they failed to discharge it

The material factor in discerning intention is manifested intention NOT the circumstances of a chance agreement

Whether gas engine was chattel or fixture despite agreement that H could repossess if G defaulted on HPA

Note differing approaches to tapestries (Leigh v Taylor - can't be enjoyed unless pinned, easily removed even though fixed by bolts; Re Whaley - fixtures designed to enhance Elizabethan character of room, Norton v Dashwood - can't be removed without substantial damaging)

*

Hobson v Gorringe

Janice Gray suggests to look at both and consider the totality of the circumstances

permanent damage this is a strong but not conclusive evidence of a fixture

*

A tension exists between applying the tests of subjective or objective consideration of the intention at the time of affixing

fixing it at the time (gathered from the purpose/time at which it was fixed)

*

A recent trend has moved away to considering the purpose or object of the annexation rather than the mode (Palumberi v Palumberi)

Temporal intention (whether

intended to be permanent or for a substantial as opposed to simply to hold it in place) and;

o

*

intended to be a fixture; the complex nature of the fitting, the connection to pipes and a reticulation system support this conclusion

The test of whether it is fixed depends

o

Comments

*

Surrounding circumstances is vital:

o

Seats regularly moved chattels

It was a fixture regardless of the HPA - the intention and circumstances surrounding the

(Australian Provincal v Coroneo) but not where premises once used as a cinema (Vaudeville Elec. Cinema v Muriset)

object of annexation were 'patent for all to see' and not just the circumstances of a chance arrangement

o

But the contractual right in the HPA vests as an enforceable equitable interest in the party claiming the fixture Intention is to be determined objectively EXCEPT to the extent that it helps indicate such matters that the item intended to remain position and the function served by its annexation

*

The house is clearly fixed to land by means other than its own weight - the onus lies on the other to say that it was a chattel

Mining equipment are chattels

considering the mine's limited life, transportable nature of equipment and common practice to transfer (Eon Metals v Comm. Of State Taxation)

o

Irrigation are chattels, irrigation

rested on weight and valves could be removed (NAB v Blacker) but where not easily removed different

Property, Equity and Trusts - Super Summaries

*

*

The intention of one buying the house

(Litz v NAB)

is irrelevant; it is the intention of the person affixing the house to the land

o

The house was clearly intended to remain there for an indefinite/substantial period

*

The surrounding circumstances

Houseboat moored to river not

fixture since there was no annexation and it could be moved without injury to the boat or land (Chelsea Yacht v Pope) but not where secured on a permanent basis and used as a nightclub (Rudd v Cindarella Rockafellas)

support thus and thus must be taken as being so despite any contrary subjective intentions

Tenant's Fixtures Concept

Key Cases

Tenant's Fixtures

*

Bain v Brand - While lease in force, lessor is owner of the fixture subject to tenant's right of removal any time before expiry (unless this right is restricted by the lease)

o

D'Arcy v Burelly Investments: In leases of uncertain duration the tenant has reasonable time after termination to remove fixtures (can also be the case if the lease confers such a right)

o

NZ Govt. Property Corp v HM&S - If tenant remains in possession by virtue of new tenancy, he is still entitled to remove fixtures. The 'colour of right' principle gives an equitable right to a tenant to remove fixtures after a tenancy if a dispute exists as to when it expired.

o

Elwes v Maw - Right to removal does not extend to agricultural fixtures but the landlord has a statutory right to purchase them for a reasonable price (Agricultural Tenancies Act)

*

Generally one who annexes a chattel to owner's land has no right to recover; even when under a mistake in the absence of fraud (Brand v Chris Building Society)

*

Principles with regards to tenant's fixtures are based on fair and just compensation, (Pavey & Matthews v Paul). This is equivalent to unjust enrichment which was previously denied - the principle activates where the benefit is 'actually' or 'constructively' accepted

Property, Equity and Trusts - Super Summaries o

Sunstar Fruit v Cosmo -fixtures added despite contractual provision that it wouldn't be done without consent; no restitution, not unjust since it was in breach of the agreement

o

Fenson v Cootamundra Racecourse - Person legitimately expecting a lease making various improvements entitled to restitution where defendant endorses/advances money for them

o

Clancy v Salienta - Purchaser of agricultural land not entitled to relief for compensation since contract said improvements would be resolved in favour of the purchaser on completion of the contract of sale but the vendor if the contract was rescinded (he repudiated)

The boundary between adjacent land owners

*

*

Land can have either artificial or natural boundaries.

o

Artificial boundaries are fixed until adjacent landowners agree to shift them and remain unaffected by movements in the land itself

o

Natural boundaries shift from time to time by the operation of natural forces (e.g. water - can change if it is tidal or non-tidal)

Even though natural boundaries can be changed by erosion; for the legal boundaries to change:

o

Erosion/accresion must be so gradual to be imperceptivle to the naked eye (Gifford v Lord Yarborough). Rapid transformations (earthquake etc.) don't affect legal boundaries

o

The principle of works so that any decrease in land accrues to the Crown (Hill v Lyne)

o

The limitations of the doctrine may be varied in conveyance to include changes in boundaries by the operation of natural forces through a "movable freehold" (Baxendale v Instow PC)

Property, Equity and Trusts - Super Summaries Part 3 - Possession + Limitation Possession of Goods Concept

Key Cases

Issue

Possessio n

Jeffries v Great Western Railway

Can the rights of a third-party be used to defend an action in trover

'The Trucks case'

The Winkfield

Note: This case was litigated on the basis that the PMG bailee had possessio n

'The procedural fail PMG case'

Whether a bailee can succeed in action on the case even if not liable to the bailor

Principle

*

Ratio A person possessed of goods as his

*

property has good title against every stranger

*

Comments The defendant is not entitled to rely on

Three actions lie for wrongful interference:

the defence of jus tertii

*

One who takes them having no title is a

wrongdoer and cannot defend himself by saying that a third person has title

*

*

manner inconsistent with owners in possession's rights)

A defendant wrongdoer cannot inquire into

*

the nature of the limitation of a possessor's right. The possessor's liability does not come into the inquiry at all

*

The PMG's possessory right is sufficient to get full damages for the chattels

*

*

Only in contracts of bailment does the

*

If one is in breach of bailment, this does not deny their entitlement to sue a third party to the

An exception to this rule exists where the breach is so serious as to amount to a disclaimer of

Conversion and detinue: Actual/immediate right at the date of the intereference/demandFuture right is insufficient (if ownership has been transferred the agreement will decide whether there is a future ore present right)If a bailor can recall goods at any time, both bailor and bailee can sue a third party

A bailees possession can be protected as against a bailor where payment is already tendered for the bailment

*

The effect of the case was that a purchaser's right to possession where finance has not been decided stems from a bailment which is sufficient to support an action in detinue

Wilson v Lombank 'The Credit Terms case'

Whether trespass to goods lies in cases of bailment

*

Compensation = market value

for the last two

the bailment which gives the bailor an immediate right to possession City Motors

Detinue (interference with possession

o

bailment

*

Conversion (dealing with goods in a

or immediate right to it where lawful demand made)

wrongdoer have an answer to actions by bailor Anderson v Tynan

Trespass (interference with actual

possession)

Where a bailor can demand return of an

object bailed he still has an immediate right (either actual or constructive) to possession. This is sufficient to invoke trespass (Hinchcliffe cites Dolfus, omitting a relevant paragraph)

*

The plaintiff had an immediate right to possession at all times it being bailed without a lien (8 year course of dealing and monthly credit)

Costello v Chief Constable- theft vests possessory title

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