EXAM Notes - Summary Property Law PDF

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CHOSES IN POSSESSION

Real property (interest in land other than lease)

Chattel real (lease)

Chose in possession (tangible)

Personal property

Chattels personal

Chose in action (intangible)

Property

Colonial Bank v Whinney (1885) 30 Ch D 261

Issue: Whether shares were choses in action for the purposes of Bankruptcy Act Conclusion: Shares are choses in action generally, but not for purposes of Act (only debts) Fry LJ (dissenting – upheld on appeal): There is no 3rd category – there are only choses in possession and choses in action Legal interest in chose in possession Ownership Possession Custody Residue of legal rights in asset The Tubantia [1924] P 78 Federal Commissioner Facts: Ship sank in 1916. Salvage company marked site and sent of Taxation v ANZ after rights given to another (1979) 23 ALR 480 (reversionary right to possession) divers to see what could be salvaged. They began work in 1922 Re Jigrose [1994] 1 Qd R 382 Facts: X put documents but operations were not continuous (e.g. bad weather, tides). In in box deposited with 1923, rival company began interfering. Facts: Vendor had to remove ANZ. There were 2 Principle: Test – (1) What kind of physical control or use is it property before completion or it locks – one key kept by practically capable of? (2) Can physical control be applied to the would be deemed abandoned. X and the other by ANZ. thing as a whole? (3) Was there a complete taking? (4) Was there Vendor left bales of hay. X put his in a sealed a sufficient occupation to exclude strangers from interfering with Purchaser padlocked the gates. Kiefel J: envelope that ANZ was the property? (5) Was there an intention to possess? to keep but not use Conclusion: Wreck is only capable of being possessed in a  Can be a gap in ownership without his consent. limited way; P established physical control over the whole wreck (if X abandons chattel and FCT served a notice on Control there is no act of  Generally, things attached to land are controlled by possessor ANZ to produce appropriation of that land (Waverley Borough Council v Fletcher – Council documents in its custody  Must be intention to abandon or control. controlled brooch found 9” beneath surface as public access (on facts, shown by contract) Principle: Custody is at to park did not include right to dig)  Ownership acquired by act  Generally, things found on but not attached to the land to of appropriation (on facts, a lower level than which public enjoys access are not controlled by possessor of possession so did not intention to control shown by that land (Parker v British Airways Board) have to decide whether padlocking gates to exclude Intention: Often proved by acts of control ANZ had possession vendor). Conclusion: Purchaser’s hay Delivery Gamer’s Motor Centre (Newcastle) v Natwest Wholesale Australia (1987) 163 CLR 236 Issue: Whether reference in s28(2) Sale of Goods Act (NSW) to ‘delivery’ is confined to actual delivery Principle:  Actual delivery: Voluntary dispossession in favour of another  Constructive delivery: No change in actual possession – e.g. delivery by attornment (acknowledging change in character of the possession – for example, seller retains possession as bailee and no longer as owner)  Symbolic delivery: Transfer of means of control (e.g. key to where goods are stored) [same as constructive?] Conclusion: ‘Delivery’ for purposes of s28 may be effected by constructive or symbolic delivery Transfer of ownership Losing and finding (1) Has the chattel been lost or abandoned? (2) Who are the potential claimants? (3) Where is the chattel located? Parker v British Airways Board [1982] 1 QB 1004 Facts: P found a gold bracelet on the floor of BA’s lounge floor (restricted access); employees had instructions with what to do with lost property but did not undertake systematic checks for it Donaldson LJ:  Finder: (1) No rights unless abandoned or lost and finder takes it into his control (not merely becomes aware of its presence); (2) Very limited rights if take dishonestly or when trespassing – person vis-à-vis whom he is trespasser has better title; (3) Acquires right against all but true owner or person asserting prior right; (4) Servant or agent finding in course of employment or agency and not wholly incidentally or collaterally thereto finds on behalf of employer or principal [Byrne v Hoare – Policeman who found gold ingot while on duty had possession as finding was not sufficiently connected to duties], (5) Must take reasonable measures to acquaint true owner and care for it meantime  Occupier: (1) Occupier of land has superior rights to finder if chattel in or attached to land, whether or not aware of presence (similarly, occupier of building, ship, etc.); (2) Occupier of building has superior rights over chattels upon or in building if before chattel is found manifested intention to exercise control over things which may be upon or in it; (3) Occupier manifesting such intention must take reasonable measures to ensure lost chattels are found, notify owner and care for chattels Conclusion: Despite restricted public access, BA did not manifest intention to control

Flack v National Crime Authority (1998) 156 ALR 501 Facts: Police lawfully seized a bag of cash from P’s home. She did not know it was there. Conclusion: P’s intention to possess her home meant that she intended to possess things inside it, including the bag and money By gift Nolan v Nolan [2003] VSC 121 Facts: N1’s father died in 1992 and his widow, N2, took possession of his paintings. In 2001, a curator found documents indicating he had given the paintings to N1’s mother before she died in 1976 (so they would be N1’s property) Principle:  Three methods of making gift (inter vivos): (1) Deed, (2) declaration of trust, (3) delivery  Essential elements for (3): (1) Intention to make gift (manifest and expressed with certainty), usually expressed by words of present gift (but in unusual circumstances other means may suffice), (2) Intention to accept gift on part of donee , (3) Delivery – legal act that completes gift (actual or constructive where delivery impractical or donee is already in possession or according to some authorities already in custody so donor does not have to retake possession) o Re Ridgeway: Acknowledged wine as ‘Tom’s port’ (his son) – manifested donative intention, but as wine remained in father’s possession in the cellar, there was no delivery  Timing: Delivery and intention do not have to coincide; delivery can occur after manifestation of intention but it is necessary to establish that the donative intention is still on foot (not retracted) o Re Stoneham: P possessed grandfather’s furniture for 2 years before he said to keep it o Thomas v Times Book: P told D that he could have lost manuscript if he could find it and did not revoke statement so his intention continued until D obtained possession  Common establishments: Question of fact whether the establishment is common; there is force for maintaining delivery as a preeminent independent requirement; must be an unambiguous act (Tulberry v Sutton view) o Re Cole: Husband told wife all furnishings in his mansion were hers; no unequivocal transfer of possession (never had possession to exclusion of husband, even though had use) so could be sold by husband’s creditors o Horsley v Phillips: Sons took mother into room and told her furniture was hers – that was sufficient because there was no shared control (Santow J also suggested separate custody in a common establishment may suffice) o Flinn v White: Words of gift by father to daughter in relation to piano which remained in family home was ineffective even though the daughter used the piano o Tulberry v Sutton: Sister occupied house while brother was in hospital. Brother said he wanted to make a gift to her children so she selected 2 paintings and told him. He nodded. No gift because no delivery Conclusion: Documents did not contain unequivocal intention to make gift (ascription to exhibit collection is not tantamount to acknowledgement of ownership). No evidence of delivery while in matrimonial home (no evidence as to where paintings were other than while in exhibits) [statute-barred on appeal but 3 judges thought error in failure to assess evidence as a whole] Public Trustee v Bussell (1993) 30 NSWLR 111 Facts: Man with terminal cancer handed envelope containing share certificates to friend and said friend was taking care of him now, so he would take care of his friend after. Official handing over of shares did not happen as he died before seeing solicitor. Principle: Test for a donatio mortis causa – (1) Gift made in contemplation (not necessarily expectation) of death, (2) delivery of subject matter (or means or part of means of getting property) or transfer of ‘essential indicia of title’, (3) gift conditional on taking effect on donor’s death, being revocable until that occurs Conclusion: Certificates were sufficient indicia of title. He had had the shares for long time (inconsistent with handing over for safe keeping and not in relation to his death) [if death does not complete gift (e.g. transfer of Torrens land must be registered), equity will compel executor to complete gift – per Cotton LJ in Re Dillon, doctrine is peculiar to donatio mortis causa] By document Sale of Goods Act 1923 (NSW) Section 4(2): Rules of common law … save insofar as they are inconsistent with express provisions of Act …shall continue to apply to contracts for the sale of goods … Section 5: ‘Goods’ includes all chattels personal, other than things in action [choses in possession] and money [excludes: shares, coins, pay TV movies; includes: share certificate, antique coin, movie recorded on DVD] Section 6: Contract of sale of goods is a contract whereby seller transfers or agrees to transfer property [defined in s5 as ‘general property’ i.e. ownership not ‘special property’ i.e. possession] in goods to buyer for a money consideration called the price [not gifts, bartering, hire-purchase, conditional purchases] Section 8: Can be made in writing (with or without seal), by word of mouth, partly in writing and partly by word of mouth, or may be implied from the conduct of the parties Robinson v Graves [1935] 1 KB 579 Facts: G commissioned R to paint a portrait. R began painting but G changed his mind. Conclusion: Contract for work and labour, not sale of goods as passing of materials (paint and canvas) was only ancillary Principle: Question is whether the substance of the contract is the skill or the product  Clay v Yates: Printing of book was contract for labour because of skill required [in 19th century – might be different now]  Lee v Griffin: Although skill went into production of dentures, it was sale of goods Helby v Matthews [1895] AC 471 Facts: H gave possession of piano to B who would become owner if he paid instalments for 3 years. Conclusion: Contract for hire, not ‘agreement to buy’ (latter requires both parties be under obligations; an agreement to buy unless either party changes his mind is a hiring contract – an expectation, however confident, does not amount to an agreement) McEntire v Crossley Bros [1895] AC 457 Facts: A agreed to let engine to B [language of lease]. It would be A’s property if B defaulted (+ damages for non-performance). Conclusion: In substance, contract for sale not lease; but ownership had not passed (intention in contract to pass on payment)

Section 22: (1) When there is a contract for sale of specific [identified and agreed upon at time of contract – s5] or ascertained goods, property transfers to buyer at such time as parties intend. (2) For the purpose of ascertaining parties’ intention, regard shall be had to terms of contract, parties’ conduct and circumstances of the case Section 21: Subject to s25A, where there is a contract for sale of unascertained goods [generic, generic from particular goods, future by description], no property transfers to buyer unless and until goods are ascertained Section 25A: (1) Section applies to contract of sale of specified quantity of unascertained goods of which some or all form part of a single bulk of goods of the same kind if (a) bulk is identified, either in contract or by subsequent agreement and (b) buyer has paid for some or all of goods. (2) Unless the parties agree otherwise, property in an undivided share in the bulk is transferred to buyer and (b) buyer becomes an owner in common of bulk. (3) Buyer’s undivided share is equivalent to quantity paid for divided by quantity of goods in bulk. (4) If aggregate of all buyers’ undivided shares exceeds bulk, shares reduced proportionately. (5) If buyer has paid for some goods, any delivery is to be attributed to goods for which payment has been made … Re Goldcorp Exchange [1995] 1 AC 74 Facts: P contracted to buy a certain amount of gold deliverable on 7 days’ notice. Dealer said it would stock that gold separately (but did not). Dealer became insolvent. Lord Mustill: Buyer cannot acquire title until it is known to what goods the title relates – whether property passes depends upon the parties’ intention and on whether there has been a consensual appropriation of particular goods to the contract. Conclusion: Goods remained unascertained; P could not claim any specific gold. Section 23: Unless a different intention appears, rules for ascertaining parties’ intention as to time property in the goods is to pass: 1. Where there is an unconditional contract for sale of specific goods in a deliverable state [s5 – buyer would, under contract, be bound to take delivery i.e. nothing further needs to be done to goods], property passes when contract is made and it is immaterial whether time of payment or delivery or both be postponed [expressions such as ‘cash on delivery’ may evince intention property not pass until payment and delivery] 2. Where there is a contract for sale of specified goods and seller is bound to do something to the goods for purpose of putting them in a deliverable state, property does not pass until such thing be done and buyer has notice thereof 3. Where there is a contract for sale of specified goods in a deliverable state but seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for purpose of ascertaining price, property does not pass until such act or thing be done and buyer has notice thereof 4. Where goods are delivered to buyer on approval or on ‘sale or return’ or other similar terms, property passes: (a) when buyer signifies approval or acceptance to seller or does any other act adopting the transaction, (b) if buyer does not signify approval or acceptance but retains goods without giving notice of rejection, then if a time has been fixed for return of the goods, on the expiration of such time, and if no time has been fixed, on expiration of a reasonable time (question of fact). 5. (1) Where there is a contract for sale of unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract either by seller with assent of buyer or vice versa, property passes. Such assent may be express or implied, and may be given either before or after the appropriation is made. (2) Where in pursuance of the contract the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by buyer or not) for the purpose of transmission to the buyer and does not reserve the right of disposal, the seller is deemed to have unconditionally appropriated the goods to the contract. Carlos Federspiel v Charles Twigg [1957] 1 Lloyd’s Rep 240 Facts: P paid for goods. D packaged goods and put P’s name and address on them. Contract was ‘free on board’ but P had paid for freight and insurance as extras. D became insolvent. Conclusion: Expectation of parties was that property would not pass until shipment; no suggestion goods were at buyer’s risk, and final 2 acts contemplated by contract had not occurred (send goods to port and put on ship). Principle: (1) A mere setting apart by seller of goods he expects to use to perform contract is not enough – he can change his mind; parties must or be reasonably supposed to have had a common intention to attach contract irrevocably to those goods; (2) Appropriation requires agreement, but sometimes buyer’s assent to an appropriation by seller is conferred in advance, by contract or otherwise; (3) An appropriation by seller with assent of buyer is an actual or constructive delivery; if seller retains possession, he does so as a bailee; (4) Documentation can indicate intention – documentation suggesting goods at seller’s risk is prima facie indication property has not passed; (5) Usually appropriating act is the last act performed by the seller Mucklow v Mangles: D painted P’s name on barge. Not an appropriation as tradesmen often finish goods made under one order then sell them to another person. If thing exists at time of order, property passes by contract but not where subject is to be made. Rohde v Thwaits: Barrels of sugar were filled and purchaser was told they were ready. Purchaser said he would take them as soon as he could. Appropriation had been made by seller and assented to by purchaser. Wilkins v Bromhead: P paid upon notification goods were ready but asked D to keep them – property had passed as P consented to appropriation by saying to keep the goods for him. Atkinson v Bell: Buyer ordered frames. Vendor made and packed them but buyer refused delivery. Held to be vendor’s goods as although there was notification that they had been packaged and were ready, buyer did not assent Aldridge v Johnson: Buyer inspected barley in bulk then sent sacks to seller to fill up. Seller did so but then tipped them out again. There was an appropriation and assent in advance. Matthew Short v Riviera Marine [2001] NSWCA 281 Facts: P contracted to make and sell boat to X. D damaged the boat when loading it onto a freighter. Conclusion: P was owner (standing to sue D). Property did not pass when boat came into D’s possession by reason of s23 r5(2) as freight owner, not D, was ‘carrier’ as only delivery to freight owner was for purpose of transmission to X Bailment Concept of bailment Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107 Facts: B agreed to move brandy for C (not for payment). Cask was damaged due to B’s negligence.

Conclusion: Bailment relationship; by taking goods, B assumed obligations even though it was a commission gratis. Principle: 6 categories [not comprehensive] – (1) safekeeping, (2) lending to friend, (3) hiring (4) delivering as security, (5) delivering to be carried or for something to be done to them for a reward, (6) delivered to be carried or worked on gratuitously Hobbs v Petersham Transport [1971] 124 CLR 220: Bailment comes into existence upon delivery of goods [lack of delivery is not fatal] into another’s possession upon a promise, express or implied [not necessarily contractual] that they will be re-delivered or dealt with in a stipulated way [e.g. hire-purchase – not redelivered] The Pioneer Container [1994] 2 AC 324: D, by voluntarily receiving into their possession goods which were the property of another, becomes responsible to P as bailee of the goods Nature of bailment Pangallo Estate v Killara 10 [2007] NSWSC 1528 Facts: A gave grapes to B (winemaker) to process. B returned wine to A for a fee calculated by the weight of the grapes and the invoice referred to ‘winemaking charges’. B leased premises from C who evicted B and claimed to have acquired the wine. Issue: Grapes were (1) tangible so capable of being possessed (chose in possession), (2) B voluntarily received possession so the outstanding issue was (3) whether re-delivery was contemplated Principle: Where goods are conmingled or manufactured into another products to be returned to the original owner, property does not pass if the parties’ intention is consistent with a bailment – however, there must be some physical heredity Conclusion: Bailment – parties did not contemplate transfer of ownership for price but fee for services Chapman Bros v Verco Bros and Co (1933) 49 CLR 306 Facts: Farmers gave wheat to miller. Under contract, farmer could request return but miller did not have to re...