2 SelfHelp Remedies PDF

Preview

Summary

With Synopsis Questions/Answers...

Description

Chapter 2: SELF-HELP REMEDIES 1. Alati v Kruger (1955) 94 CLR 216; Textbook [2.95] – [2.100] – p6 (equitable rescission) 2. Maguire v Makaronis (1997) 188 CLR 449; Textbook [2.105] – [2.110] - p6 (equitable rescission) 3. Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; Textbook [2.145] – [2.150] - p8 (Partial Rescission) Content Page:  

7 Types of SHRs – rescission is most important – p6-10 Appropriateness of a SHR in certain situations – cross ref with the categories.

I Questions 1.

What are Self Help R?

Actions that parties can rightfully undertake, without resorting to legal methods to implement their rights. 2.

Range of Remedies?

There are 7 categories 1. 2. 3. 4. 5. 6. 7.

Abatement of nuisance Trespassers Tenants remaining in possession and squatters Recovery of chattel/goods Acting in self-defence Rescission* Self-created contract remedies

3.

Appropriateness of a SHR in certain situations     

4.

Risks  

5.

Abatement of nuisance (having 1st given notice of intention) (Traian v Ware) Eviction of trespassers by Landlord (McPhail v Persons Unknown) Conversions of owner’s goods/chattel Rescission from a contract (Alati v Kruger) Breach of contract that stipulates damages clause.

The law does not favour the remedy of abatemen as an alternative to legal action. (Traian v Ware) There are limitations to the extent you may exercise your SHR e.g. to prevent trespassing, it must not be to injure someone (Bird v Holbrook )

Limitations on the availability of SHR  Recovery of Damages are limited once abdatement has occurred (Traian v Ware).  Re-possession of converted chattel must be done with reasonable force – must not constitute a breach of peace (Toyota Finance Australia Ltd v Dennis).  Self-defence must be used only when reasonably necessary (Fontin v Katopodis)  With recission

1

Chapter 2: SELF-HELP REMEDIES o

At CL: there must be precise restitution (Clarke v Dickson)

o

In Equity: more flexible, need only be restituted ‘substantially’ to the original position (Alati v Kruger) A Party can unilaterally rescind from a contract due to fraud to prevent the victim from

o

exercising their rights against their own will (Vadasz v Pioneer Concrete (SA) Pty Ltd).

6.

How do, and should courts choose between these differing valuation possibilities?  Access it on a case by case basis and the orders that the plaintiffs are requesting.  Objective is always to provide backward remedies that restitute victimised party to their original position.

II 7 Types of Remedies: 1.

Abatement of Nuisance  Abatement is the removal of a source of nuisance (substantial & unreasonable interference with the use and enjoyment of) – in contrast to alleviating the effects of the nuisance.  Damages Not recoverable, unless it was done in mitigation of damages instead of removal of source.  Traian v Ware: Party experiencing nuisance of protruding branch can cut it off. Party must do only what is necessary to avert the effect (cannot cut off entire tree; must do least harm) & courts are reluctant to allow claiming for costs for the use of abadement (cutting branch off) in contrast to taking legal action – academics argue that should be, cause can be used as a weapon. Tarian v Ware MF: P built a bank that caused D’s land to flood when it rained heavily. Without P’s notice, D entered P’s land and cut the bank, causing P’s land to flood and damage to crops and orchards. H: P was obliged to receive damages and additional damages for D’s high-handed manner.  D must give notice of intention to abate unless there is immediate danger and unsafe to wait. D not granted remedial injunction (stop D ever re-building bank) cause they already took it into their own hands.  Parties were close together, could have requested or given notice to afford P the opportunity to reduce the damage

2.

Trespass  May evict trespasser only if force used was ‘reasonably necessary’. – s41 Criminal Code (Removal of Disorderly Persons) o Depends on: nature of attack, if property or person were attacked; current standards on the importance of protecting a property  3 Elements to Establish self-defence to an action of assault: (i) possession (ii) force used was reasonable (iii) person bringing action was the trespasser  reasonable force (Bird v Holbrook) o not usually justified unless trespasser was already asked and given adequate time to o

leave unless nature of trespass was committed with ‘a strong hand’, can possessor respond with force.

2

Chapter 2: SELF-HELP REMEDIES o

If not only minimal force can be used. Therefore also cannot set traps (e.g. bear traps; electric fences) without notice.

Richter v Risby MF: No authoriszation for physical.removing a person who is blocking the movement of a machine. Abatement of that nuisance didn't jsutify physical movement of the demonstrator. - H/J: So, this creek (asemi-public area) V was not trespassing and shewas merely a nuisance in blocking the machine’s movement. Therefore, the abatement was not justified. Abatement is no for physically removing people, only for solving property nuisances. Bird v Holbrook MF: Set up a spring gun without notice to protect his valuable tulip bulbs that have been stolen before  Means to prevent offence can be a punishment but must be justified, force cannot be more than necessary to effect object – object cannot be to injure, otherwise it’d be seen as a mischief.  Set up the spring gun with the intention that it be discharged, was not to act as deterrence as no notice was given, but to entrap the victim. 3.1. Occupiers/protesters/Licensees/Squatters/Tenants 3.1.1 OCCUPIERS: C.1 RULE: The owner must have a clear legal basis for entering the land, otherwise it is an indictable offence to forcibly enter land Criminal Code 1924 (Tas) s 79 79. Forcible entry and detainer (1) Any person who without lawful authority enters in a violent manner, whether by actual force or by such a show of force as to deter opposition, any lands or tenements in the peaceable possession of another, for the purpose of taking possession thereof, whether or not he has a right of entry thereto, is guilty of a crime.

C.2 RULE: A person in peaceable possession of land “under a claim of right” may use force (with certain limits) to defend his possession, even against someone who is entitled by law to the possession of the property.

Criminal Code 1924 (Tas) s 42 42. Defence of possession of real property with claim of right It is lawful for a person in peaceable possession of any land or structure, with a claim of right, and for any person lawfully assisting him or acting by his authority, to use such force as he believes on reasonable grounds to be necessary to defend his possessions against any person whether entitled by law to the possession of the property or not, provided that such force is not intended and is not likely to cause death or grievous bodily harm. 3.1.2 PROTESTERS:

3

Chapter 2: SELF-HELP REMEDIES Rule: Reasonable force may be used if the protesters are deliberately obstructing lawful work being done on property, BUT courts are not keen on self-help in these situations, as it leads to breaches of the peace and arguments about what was reasonable or not (Richter v Risby).

Rule: However if the remedy of abatement results in an assault (e.g. physically removing plaintiff manhandling of a person committing nuisance), then the criminal code provisions allowing for abatement of nuisance, will NOT apply (Richter v Risby). Criminal Code 1924 (Tas.) 43. Defence of movable property against trespassers 

It is lawful for any person in peaceable possession of any movable property, and for any person lawfully assisting him or acting by his authority, to use such force as he believes on reasonable grounds to be necessary to resist the taking of such property by a trespasser, or to retake it from a trespasser; provided that such force is not intended and is not likely to cause death or grievous bodily harm to the trespasser.

44. Defence of movable property with claim of right 

It is lawful for a person in peaceable possession of any movable property under a claim of right, and for any person lawfully assisting him or acting by his authority, to use such force as is necessary to defend his possession of the property against any person whether entitled by law to possession thereof or not; provided that such force is not intended and is not likely to cause death or grievous bodily harm.

45. Retaking movable property under claim of right from person without claim of right 

It is lawful for a person entitled by law to the possession of movable property to take it from a person who is in possession of the property, but who neither claims right to it nor acts by the authority of a person so claiming, and if the person in possession resists him, to use such force as is necessary to obtain possession of the property; provided that such force is not intended and is not likely to cause death or grievous bodily harm.

3.1.3 Licensees RULE: If owner of property previously gave licence to someone to enter the property, the owner may REVOKE the licence and eject the licence, as long as the licencee has received NOTICE that the licence is revoked and has been given REASONABLE TIME TO LEAVE and collect their property (Cowell v Rosehill Racecourse Co Ltd),

3.1.4 Squatters remaining in possession    

Owners may evict squatters who’ve entered forcibly - but can only use no more force than is reasonably necesssary (McPhail v Persons Unknown) S79 (Forcible entry and detainer) of the CC will not apply if squatter entered forcibly Owner is entitled and court is obliged to grant order of re-possession as trespasser never had possessory rights to begin with. If person without any colour of title, owner entitled to go in and turn them out without obtaining permission from court

4

Chapter 2: SELF-HELP REMEDIES 

This is Different if tenant holding beyond term, entitled to possession, cannot use force, to go to court to obtain order* (see below)

McPhail v Persons Unknown MF: McPhail owned house and some squatters came in to put a new lock on it. Squatters pleaded to court that they had no defence available and asked for time to be given to them.

3.1.5

Tenants remaining in possession  At common law, landlord can evict former tenant using reasonable force, having asked the tenant to leave and given reasonable opportunity to leave.  Under statute [RESIDENTIAL TENANCY ACT 1997 - SECT 37(1)]: Owner can only - s37(2) attempt to regain possession through 6 ways: (a) agreement terms, (b) notice to vacate, [c] notice to terminate, [d] order of the court, [e] following abandonment or early vacation.  Owner cannot regain possession by forceful eviction – must go to court to recover possession (McPhail v Persons Unknown).

Hawkin v Northern Melbourne Football Club 

4.

MF: booted drunk licensee – 2 differeing stories. P said he was marched out and pushed onto the road. D said they gently escorted to door physically assisted and supported by door men.

Recovery of Chattel  3 means: recaption, Replevin, Specific restitution o Recaption: If goods are taken from lawful possession of a person (i.e. person has an immediate right to possession to retake wrongfully possessed goods), the person may retake them using reasonably necessary force and may forcibly enter land of tortfeasor or any third party who concurred in the taking of goods (Criminal Code (1924) s 45: Retaking movable property under claim of right from person without claim of right). o Replevin: used by creditors – upon providing a bond, a secured creditor can file a writ of

o

replevin to obtain possession of the secured goods until a court decides the final entitlement to the goods. Specific Restitution: The right to ask the court to order specific restitution of goods. UNLIKELY court will make an order for specific restitution UNLESS goods are unique. most likely damages only OR if damages are inadequate.

Toyota Finance Australia v Dennis MF: Vehicle on hire purchase, P in default of repayments, D had a right to repossess – entitled to seize with reasonable force. P claimed damage caused for injury for the use of force. Issue: was force used reasonable?   

Not justified unless adverse possession was wrongful from inception Can enter to retake but only if entry can be made peaceably and not committing a breach of peace P Liable because no force was justifiable. Although P’s original possession was lawful, P’s entry not peaceable, broke down the door of P’s house when he refused entry. There was no indication to P that a request to repossess the chattel would be futile or dangerous.

5

Chapter 2: SELF-HELP REMEDIES

5.

Acting in self-defence 



The use of force to defend self or 3rd party must be reasonable. (c.f Fontin; Criminal Code 1924 (Tas) s 46) o 2 limb test (Zecevic)  [subjective test] Must believe on reasonable grounds that it was necessary force in s.d.  [objective test] Belief must be reasonable – relevant situational considerations It may be used to protect property. Cannot be used to set man-traps that cause GBH (unless only for: night-use, destroying pests – s178 CC – property (c.f. Hackshaw) o Defence of dwelling house – to prevent forcible breaking and entering or ejecting unlawful entrees/trespassers – s 40 CC Hackshaw v Shaw MF: S was farm owner who ambushed a thief. S fired 2 warning shots @ the thief’s car an hit car’s passenger (H). H: S owed duty to H. reasonable foreseeable that someone else was in the car. But H was also contri.negli for illegal entrance. Fontin v Katapodiy MF:Exchanged insults, P hit D with a measuring stick. D then threw a piece of glass in retaliation causing bad injury to P’s wrist. H: Found to have been excessive force, could have escaped + there was another employee moving in to help. Underhill v Sherwell MF: Woman attacked man with fists and feet, he responded by putting up his hands, this caused injury to woman’s nose. Where does the onus of proof lie?

  6.

If it is the number of blows then it lies on the Plaintiff to prove each assault. Otherwise, onus of proving reasonableness as to use of force ordinarily lies on the defendant If nature and reasonableness is in dispute, then it is for the Defendant to justify.

Rescission: the right of a party to a contract to have it set aside and be restored to his/her former position

3 steps in discussing Rescission 1. 6 Grounds warranting Rescission: Misrepresentation: - fraudulent - innocent - precontractual if it becomes a term of the contract Breach of Fiduciary Duty Undue Influence Unconscionable Behaviour Mistake Duress 2. Partial rescission: Court must look at what is practically just for both parties, not just for the appellant.

6

Chapter 2: SELF-HELP REMEDIES

3. Bars to rescission:  3rd party acquiring interest under the contract for value without notice;  affirmation – when a party knows of circumstances that give right to rescind and affirms not rescinds;  delay;  change of position so that it is inequitable to make the order of rescission;  executed contract – no rescission for innocent misrepresentation.

Under Common Law precise restoration is required.  

right to rescind arises where a transaction has been brought about ONLY through fraud. It is - "self help" – as person is entitled to rescind - on grounds of fraud or duress – they may communicate their election to the other party and agreement is avoided

In Equity it is satisfied if parties can be substantially restored. 

  

right to rescind arises in wider circumstances such as innocent misrepresentation, undue influence, unilateral mistake, duress, unconscionable dealing and breach of fiduciary duty. It can also impose conditions on the person seeking relief if it is just to do so. It is - NOT self-help --> requires a court order - court has discretion whether to grant it or not requirement satisfied if parties can, through taking of accounts and making of appropriate consequential orders, be returned "substantially" to their original positions. (Alati) To assess whether a party has lost his right to rescind, we need to examine if there was any breach of duty or unreasonable conduct on part of the party seeking to rescind (Alati)

(a) Requirement of “restitution in integrum” The right to rescind is conditional on "restitutio in integrum" - i.e. transaction must be capable of being unwound so parties are restored to their original position. Clarke v Dickson (Common Law rescission) MF: Sought rescission for fraudulent misrepresentation in purchase of shares.   

H: cannot rescind as nature of shares have changed so P cannot rescind the transaction Cannot restore the shares to the same state he took them because dividends were declared and received by P, Also, in exercising his option to rescind must be in a situation such that he is able to put the parties into their original state before the contract

Alati v Kruger (Equitable rescission) MF: A sought rescission for purchase of fruit business on fraudulent misrepresentation as to profits of business. Purchaser had completed purchase and gone into possession before realising the fraud and taking proceedings fro rescission. Purchaser succeeded in the case for rescission but by the time of final orders - there was no prospect of business being returned to vendor as it had been closed down and premises vacated. Held: Vendor’s/Alati’s Appeal failed. K to give use-value of the benefit as a condition for restoration, reasonable rent for business and premises from date K took possession to be given, and A to return the purchase price & the use-value of that benefit. Majority 1: Restitution available to P?

7

Chapter 2: SELF-HELP REMEDIES -

Since upon discovering the falsity of the representation which had been made to him, he acted promptly and without having done anything which could amount to an affirmation of the purchase, Equity should apply here because it allows the disaffirmance of a contract induced by fraud, even if precise restoration is not possible. (i.e. if the situation is such that account of profits and direct inquiries as to allowances proper for deterioration can be done to justly restore them substantially to the status quo).

Majority 2: Did K lose his right in discontinuing the business and leaving the premises? -

-

If K/respondent had acted unconscientiously during action, causing the loss of a valuable leasehold and goodwill by discontinuing the business and abandoning the premises without giving A/vendor reasonable opportunity to take them back, no doubt the court might refuse relief. Although The business had some residual goodwill, there wa no unfairness by K. A was well aware of the circumstances and had ample opportunity to protect his interest. Thus A could have taken action to preserve the property pending determination of the case  K was under no duty to go on indefinitely, working for nothing and incurring losses, especially after the judge had announced findings of fact in his favour.

Maguire v Makaronis (Equitable rescision) MF: Solicitors (A) loaned $250,000 to their client to purchase a farm, the farm failed and clients defaulted in repayments. A demanded repayment of entire and for possession of mortgaged property. R Counter-claimed that loan to be set aside for breach of fiduciary a...