Summary - all cases from the course laid out as facts, reasoning and significance PDF

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Summary

All cases from the course laid out as facts, reasoning and significance...

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T1: Mirrirrpum v Nabalco 1971 Was the clans’ relationship to the land a recognisable and The doctrine of communal native title contended for by the natives did not apply. Such a doctrine has no place in a settled colony except a proprietary interest? Blackburn: generally property includes the right to use and under express statutory provisions. Throughout the history of the settlement of Australia any consciousness of a native land problem enjoy, the right to exclude and the right to alienate. They inspired a policy of protection and preservation, without provision for do not need to coexist for there to be a proprietary right. The relationship of the clan to the land is not a proprietary the recognition of any communal title to land. It is significant that the case recognise that the Aboriginal claims had a recognisable system of interest, the members may have a right to use and enjoy law and that this system involved a relationship between the clans and the land but not to exclude others as it was used by other the land clans and the right to alienate was repudiated in the claim Mabo v Queensland No2 1992 P, Meriam people, were claiming rights to Mason C.J., Brennan, Deane, Toohey, Gaudron and McHugh: Native title to land survived Crown's Held: by Mason, Brennan, Deane, Toohey, Gaudron and specified parcels of land on Murray acquisition of sovereignty and radical title = Crown has validly alienated land by granting an McHugh, Dawson dissenting, Islands. They had occupied islands before interest wholly or partially inconsistent with a continuing right to enjoy native title, the title is European contact and continue to occupy extinguished to the extent of the inconsistency. Native title to particular land, its incidents and the that the land in the Murray Islands is not “Crown land” islands. They claimed 3 different types of persons entitled to it are ascertained according to the laws and customs of the indigenous people within the meaning of that who, by those laws and customs, have a connexion with the land. rights including native title. term in s. 5 of the Land Act. Deane and Gaudron: such alienation = wrongful & entitled owners to compensation. King v David Allen & Sons Billposting 1916 Third party not HOL held agreement conferred a personal right upon David King owned building and by four year K permitted D to fix posters to walls. Before end of bound by licence this period, King sold building and new owner did not permit D to affix posters. David Allen Allen not a proprietary right, only meant agreement could not be enforced against the new owners of the building argued that his right under K was proprietary in nature (wanted SP) Tulk v Moxhay 1848 Tulk, had sold Leicester Square by deed containing Example of case by case analysis and value Cottenham granted an injunction to prevent a purchaser building on restrictive covenant to maintain it in form of public judgment based on policy = When court gives land which he had purchased after promising the vendor he would ‘pleasure ground’. M, a subsequent purchaser not build on the land. In granting injunction, Cottenham laid P a proprietary remedy, it sanctions P’s power foundation for body of common law relating to restrictive covenants. to exclude and control an object of property sought to build upon land. T sought injunction. Victoria Park Racing & Recreation Grounds v Taylor 1937 Dixon: obtaining a view of premises is the foundation of the allegation. But English law is… clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who overlook the premises. occupier can exclude his neighbour's view by physical means. Appeal dismissed: considered whether property rights exist, and protecting claims in property for purposes of tort law. Considered privacy and lack of interference with prop right Bazley v Wesley Monash 2011 When you die, your B diagnosed with cancer and was told he would be sperm extracted from human body and stored could be property. The owner of which property goes into the unable to have kids for 12 months so he provided a invested in the deceased and in his personal representatives after death. Therefore wife had a right. The relationship b/w husband and wife was one of bailor and bailee for reward estate and goes to semen. When he died Mrs B wanted a sample to be and pursuant to which the entitlement could be recognised as subject to bailment wife? restrained and wanted to stop M from destroying it. Australian Aboriginal natives representing native clans sued a mining company and the cth claiming relief for possession and enjoyment of areas of Arnhem Land in the Gove Peninsula where mineral leases had been granted by the c’th to the company. Contended that the land was theirs and the use of it by the mining company was illegal

National Australia Bank v Blacker 2000 NAB repossessed B’s farm after he defaulted. Mortgage security over Conti = Found items were chattel: pumps rested on own weight and no single test sufficient to land, and machinery, plants, improvements affixed to it, when he vacated not heavy enough to ‘yield interference of intended permanency of determine whether he removed irrigation, pumps (mounted on a steel skid, resting on the physical location’ (also caused no damage), valves could ‘readily and property chattel or fixture, ground so as to be towed/pulled by a tractor) 200 valve and 200 sprinkler conveniently be removed’ and inexpensive as were sprinkler heads court should regard all heads. He claimed pumps and other items were not affixed bank failed to meet onus that were chattel circumstances. Belgrave Nominees v Barlin-Scott Airconditioning 1984 Air conditioning plant was a fixture. Matters and circumstances can include: the Air-conditioning plants as well as chillers were installed on the rooves of two buildings. The nature of the chattel, the relation and situation of the party making the chillers stood on their own weight on a platform specially constructed to hold them. The annexation vi-a-vis the owner of the freehold or the person in possession, the chillers were connected by bolts to the water reticulation system and water pipes were mode of the annexion, and the purpose for which the chattel was fixed connected to water pumps which were affixed to the platform on which the chillers rested. Moore v Regents of the University of California 1990 challenge to doctor taking DNA of patient and using DNA to develop Argument relied on was need to be totalitarian, developed to greater good not confined to individuals. own sequence. There is no ownership interest in a body part once the body part has been removed from his/her body

Topic 7 cases Characteristics Radaich v Smith 1959 Examine the HC unanimously agreed that despite the fact that the document referred to as a licence, a lease was created not a licence = had exclusive power not merely right to substance of the occupy. Look at relationship of parties not the label placed on relationship document rather than its form Windeyer: interest in land fundamental difference- look at intention & conferred rights McTiernan: look at facts suggesting it is a lease Street v Mountford 1985 Overruled intention test Occupant granted EP of a furnished room under Lease exists whenever there is a grant of EP for a fixed or HOL largely reaffirmed EP test and cited judgment of a written licence stating occupant had a duty to periodic term as an agreed rent = only intention relevant is ‘demonstrated by the agreement to grant exclusive possession windeyer. only intention which is relevant is the intention pay a licence fee that did not intend to give demonstrated by agreement to grant EP for a term at a rent for a term at a rent’ them tenancy Lace v Chantler L sublet house to C, agreement partly oral and partly by conditions contained in rent book. in order for valid lease to be created, lease must be of certain duration Certainty of or capable of being made certain. Certainty requires at least date of One condition expressed by furnished for duration. L alleged C removed certain furniture determination must be certain (date or event). A tenancy for duration duration: contrary to agreement and gave eviction notice. One of grounds of defence relied on by C of law was uncertain as no one knew when war would end that property was rented to him for duration of war and could not now be terminated. Prudential assurance v London Residuary body 1992 HOL Parties entered into a deed where landowners (D) granted R sole and exclusive licence to carry on business of a milk bar in the area for 5 year term. After term, deed said R would give up possession. Deed used terms like lease to describe relationship b/w parties. Issue: whether lease or licence and conclude whether EP or intention test applied

By written agreement, London County Council let to N a strip of land with road frontage. Agreement provided tenancy commenced on certain date and brought to an end when council needed the land to widen the road

HOL held agreement was NOT a lease but a yearly tenancy because when it took effect term of lease was not certain and not able to be calculated

certainty of duration requirements applied to all tenancies, fixed term and periodic= Not enough rendered certain at future time after lease commences. Effect: lease was void and no estate in the land

Barrisford v Mexfield Housing Cooperative 2012 M built B’s property and let it back under occupancy agreement from month to month until determined by B giving notice which was known as clause five of agreement or by M only if in arears for several times or B was in rent authority (clause six). Issued notice without being in clause six

while lease may be construed as periodic, failed on the ground that it was for an uncertain term. Properly construed, agreement created life tenancy for life of B as long as she did not fall in arears.

Hawkesbury Nominees v Battik 2000 Full court of federal court, breach of covenant where ordinary and lawful enjoyment of demised premises is substantially interfered with by acts of LL or those lawfully claiming under him (sublease with consent of LL). Whether what is complained of amounts to substantial interference is a question of fact. There is a breach by omissions of acts, there will be breach not derogate from branch or not if acts or omissions of lessor are such to render demised premises unfit for what it is intended to be used for Aussie Traveller v Marklea 1998 If grant is made for particular purpose, lessor is under obligation not to use land in AT manufactured new and repaired canvass goods and let premises off D. D also let such a way to render land granted substantially less fit for the particular purpose of premises to someone else who had assigned reversion in land to Top Flights who did a lot of carpeting and disturbed P’s business by use of wood sawing, sanding and plaining. the grant. Question is whether there has been a substantial interference with right of Sore dust particles entered premises and damaged his product. Issues: whether extent obligation so purpose of land unfit substantially or unfit for purpose. Present in case ie effect on AT business due to T’s activities. LL can be liable to T for breach of of disturbance suffered amounted to breach of lessor’s obligation not to derogate (requires you to have another piece of land retained that is close by) on grant and also a covenant through actions of another of their interests. LL could correct T’s behaviour and failed to rectify problem after notified. Question of fact. NB: can sue tenant and breach of quiet enjoyment. Second issue was wehther lessor was liable for breach LL = obligation not to derogate also directed to acts off the premises (Thomas) where it was not the neighbouring tenant, T was liable Norden v Blueport Enterprises 1996 there was a breach of non-derogation and quiet enjoyment. To amount to derogation on N leased third floor to computer company BPE for office accommodation. LL then grant, interference with use for which promises let must be substantial. Mere consented to consignment of lease on fourth floor to a brothel. B was not happy interference with convenience or amenities (privacy/ tranquillity) not sufficient to with this, its employees gave evidence of unsanely persons using the stairs, people constitute derogation. Whether actions taken by lessor amounted to derogation by the going into their business, noise of showers, occasional moaning, wips, and strange grant in final analysis was a question of fact and degree. Parties could not agree by smells. The lobby was used as a urinal and place of vomit. Staff propositioned by contract to exclude LL’s obligations (two covenants). brothels customers. B was concerned about affect on customers. Purple Tangerine v Australian Financial Loan Management Interlocutory injunction granted= balance of convenience favoured P. common P, subleasee, did not have entry permit to toilets, kitchen, emergency exit doors. D did not practice for permanent and part time staff to have individual swipe cards to intned to renew lease, already had another. There were issues with security and access access facilities, within and outside work hours. Will not impact D, additional doors. P conducted business and had to reduce business hhours. Staff were also not able to swipe cards not a burden = substantial interference with P use lift or go to toilet. Gumland Property Holdings v Duffy Bros Fruit Market 2008 D leased market place in shopping centre and fell into HC held D had breached deed and G had a clear right of action under the deed. The deed was not a side agreement to the lease or a suspension of the lease, but a variation of it. Hence the failure to pay these amounts was a failure to arrears. When lease expired, LL told D didn’t want to comply with the lease covenant to pay all rent and outgoings. The lease covenant was an essential term and breach of renew. However it remained in occupation while an essential term entitled Gumland to terminate the lease and obtain an award of loss of bargain damages opting unilaterally to pay only half the rent. restaurant in basement of building, there was inadequate ventilation meaning R (assignee of sublease) could not use premises for purpose of a restaurant

T8 contractual licences Cowell v Rosehill Racecourse 1937 HCA held K licence is equally revocable at law or in equity. A K lincensor has power, but not right, to terminate Equity is not required to licence. No principle by which equity will step in a restrain licensor and exercising legal right of revocation find a propriety right before it can intervene Was P’s right to remain on the racecourse proprietary? Latham CJ If licence coupled with interest in land, licence could not be revoked. In Hurst UK, licences had a contractual right and grant injunction. to enter land to view spectacle did have proprietary interest =‘right to see’ was interest. Here, right to enter land to Criticism has been made witness a spectacle (purchased by P) was not a proprietary interest, but a contractual licence. To have a licence that in absence of coupled with an interest, the interest must be something distinct from the license itself. Need to find an proprietary interest. HC ascertainable property right. only had a contractual interest underestimated the importance of K rights Effect of revoking contractual licence? Held that a contractual licence can be effectively revoked at law, even if revocation amounts to breach of K. If licence revoked then must leave the land within a reasonable time and Today, a court exercising thereafter will become a trespass if do not leave (may use reasonable force). Licensee can to pursue licensor for equitable jurisdiction damage in breach of K. Remedy will probably refund of tix or entrance of fee. Licence may be able to claim might grant SP of K or damages for loss of enjoyment or leisure. injunction to prevent Should have sued for breach of K, not trespass, Equity? Negative stipulation were implied and even then it would licence from being not give P right to sue for revocation as no proprietary interest. = meaning it can be revoked at law or equity even if wrongfully revoked. unlawful for the reason there is a proprietary interest in the land. Whether the court will Justice Evett (dissenting): Agreed that a spectacle did not give rise to a proprietary interest, so not licence coupled do so or not depends on by a grant. However, prop interest not required to gain equitable relief- equity should restrain wrongful revocation a number of factors of the licence in breach of K. Heidke v Sydney City Council 1952 Youth Carnival for Peace and Friendship “A”. Had entered K with Hardie - disregarded Cowell. Conceded that in many contractual licence cases, equitable remedies are unavailable. However, this is not because such remedies are unavailable on principle. This is because k SYC. SYC allowed A to hire parks and ovals for events – were future licence often involved a substantial element of personal service, which courts will not grant equitable relief Ks. Before events were due to take place, C revoked Ks, so P had to enforce. E.g agreements under which building contractors able to go onto land to build. ( not same as time to seek an injunction. C relied on Cowell’s case arguing no injunction was possible as A were mere contractual licensee. personal service type agreement). On the facts: Ct held it had jurisdiction to grant equitable remedies to preserve and enforce sanctity of bargain - as attempted revocation was in breach of K no express/ implied Following cases, argued the Ct had no jurisdiction to grant term allowing revocation but also allowing that equitable jurisdiction should be exercised in Pl’s favour for equitable relief. C argued A could only sue for damages Sigma Constructions v Maryvell Investments 2004 VCAT heard: in failing to consider discretionary factors, including whether D’s Mary Bell (D) granted Sigma (P) a licence in writing to use its premises in conjunction with revocation of the licence was in breach of K. So where a licensor seeks equities hotel construction on P’s adjoining land. D revoked licence, alleging breaches by P, who held in ejecting licensee, court must consider revocation is in breach of K. applied to VCAT for an injunction to evict P from D’s land. VCAT applied Cowell’s case, holding D had validly revoked licence, making P a trespasser, granted injunction to recover P King v David Allen Billposting UK 1916 agreement upheld an agreement to use walls for advertising NOT to land. D couldn’t enforce K, licensor, and A, liscensor, entered licence to fix posters on wall. D agreed for the agreement against the new company due to privity (non-party to K) of contract. All he had term of agreement that he wouldn’t allow anyone else to do this. King leased was a contractual claim which did not give right to damages (right in personam?). Properietary building to another person who agreed to all rights of K but there was no rights are superior to contractual provision about billposting and therefore refused to uphold the arrangement P had purchased a ticket to races. D asked P to leave racecourse. When P refused to do so, D forcibly evicted him, using force reasonably necessary for that purpose. P sued, claiming a right to be there. P did not sue for damages for breach of K. D’s defence was that once the licence had been revoked, P became a trespasser on the land and D had a right to use reasonable force to eject him. (fits in with implied licence to walk up to door) ISSUE: whether a contractual licence can be revoked by licensor at will, even if the revocation amounts to a breach of K.

Ashburn Anstalt v Arnold Arnold occupied premises for purpose of running a retail outlet. The shop was part of a complex that was to be redeveloped by the owners. Arnold sold his lease to M and was permitted to remain in occupation rent free until given a quarters notice to quit. There was however, no specified max. duration which would mean the occupation was potentially capable of lasting forever. Q: whether the agreement created a tenancy. Two issue: 1) What sort of interest did C have under the agreement , did that create a lease/licen...