Australian property law : cases materials and analysis

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Full Title Dedication Copyright Preface Table of Cases Table of Statutes Table of Contents 1 Concepts of Property Characteristics of Western Property Interests Private property Associated property rights Property as the Law of Things Commentary Property is a relationship Yanner v Eaton Commentary Property is a legal construct Fragmentation of property Distinction Between Proprietary and Contractual Rights Nature of the distinction Lease or licence? Cowell v Rosehill Racecourse Co Ltd Commentary Overview of the distinction between property and contract Rationales for ‘private’ property Classical liberalism: natural rights and the social contract Utilitarianism Socialism perspectives Modernist: legal positivism Contemporary perspectives Revision Questions Property and the environment Property Rights and the Environment Commentary Non-Private Resources Resources outside of ownership: res communes Boundaries of Ownership: Resources Incapable of Ownership Rights to a spectacle Victoria Park Racing and Recreation Grounds Company Ltd v Taylor Commentary Resources incapable of ownership: moral boundaries Resources incapable of ownership: common heritage of humanity Revision Questions 2 Possession, Title and Personal Property The Meaning of Possession: Land and Goods Finders Keepers Rule The Scope of Possessory Title Doodeward v Spence Commentary The Natural Law Duty to Recognize Private Property Ownership: Kant’s Theory of Property in His Doctrine of Right Revision Questions Enforceability of Possessory Title Asher v Whitlock Commentary Perry v Clissold Commentary Possession and Crown Title: Toohey J in Mabo v Queensland (No 2) Commentary Revision Questions The Finders Keepers Rule Waverley Borough Council v Fletcher Commentary Bailment: Consensual Acquisition of Possession Possession of Goods: The Jus Tertii Defence Costello v Chief Constable of Derbyshire Constabulary Commentary Revision Questions The PPSA Revision Questions Possession and Seisin Seisin and Possession as the Basis of Legal Title Remedies for Real and Personal Property Revision Questions 3 Fixtures, Encroachment and Boundaries The Doctrine of Fixtures Degree of annexation Elitestone Ltd v Morris Commentary Object of annexation The intention of the affixer The nature of the chattel Overall circumstances Tenant’s rights to remove Fixtures and third parties Metal Manufactures Limited v Federal Commissioner of Taxation Commentary Other statutory provisions Revision Questions Effectiveness of the fixtures tests The Law of Fixtures: Informed Principle or Independent Predilection? Commentary Revision Questions Boundaries: Land Abutting Water Tidal water boundaries Non-tidal water boundaries Water rights The doctrine of accretion and avulsion Williams v Booth Commentary Revision Questions Boundaries and Encroachments for Land Error in title Contractual errors Fence boundaries Encroachments on to land Revision Questions Answer Plan 4 Adverse Possession The Meaning of Adverse Possession Outline of the Title Hierarchy The Nature of Adverse Possession Policy Rationales Underlying Adverse Possession ‘Should the Law Recognise the Acquisition of Title by Adverse Possession?’ Revision Questions Limitation Period Against which Owner? Factual Possession Open and peaceful Without consent Revision Questions Intention to Possess: Animus Possidendi JA Pye (Oxford) Ltd v Graham Commentary Whittlesea City Council v Abbatangelo Commentary Revision Questions Multiple Possessions Kierford Ridge Pty Ltd v Ward Commentary Disability and Fraud Adverse Possession and the Torrens System Revision Questions Answer Plan 5 The Doctrine of Tenure and Estates English Feudal Tenure What is tenure? English feudal history Feudal Tenure and Native Title: Revising an Enduring Fiction Revision Questions Australian Tenure Feudal Tenure and Native Title: Revising an Enduring Fiction Revision Questions Tenure and Radical Title Disinterested Truth: The Legitimation of Feudal Tenure Post Mabo The doctrine of estates Freehold estate Fee simple Life estate Future interests: remainder and reversion Vested and contingent interests Determinable or conditional? Zapletal v Wright Commentary Legal contingent remainders Legal remainder rules Overview of Estates Revision Questions 6 Restraints on Alienation and the Rule Against Perpetuities Scope and Purpose of the Rule Restraining Alienation Hall v Busst Commentary Nullagine Investments Pty Ltd v Western Australian Club Inc Commentary Elton v Cavill (No 2) Commentary Public policy and inalienability Revision Questions The Rule Against Perpetuities Common law rule Cram Foundation v Corbett-Jones Commentary Scope of the common law rule Life in being Certainty requirements Statutory rule against perpetuities Class gifts Class-closing rules Yeomans v Yeomans Commentary Understanding the Rule Against Perpetuities: Adopting a Five Step Approach to a Perpetuities Problem The Rule Against Perpetuities: An Overview Revision Questions 7 Leases The Nature of a Lease: Non-Freehold Estate Types of Leases (i) Fixed-term tenancy (ii) Periodic tenancy (iii) Tenancy at will (iv) Tenancy at sufferance Validation Requirements Statutory Formalities for the Creation of Common Law Leases Exclusive Possession Radaich v Smith Street v Mountford Commentary Swan v Uecker Commentary Revision Questions Certainty Requirements Equitable Leases Walsh v Lonsdale Commentary The doctrine of part performance Tenancy by estoppel Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd Commentary Revision Questions Common Law Rights and Duties Reasonable habitability Landlord’s duty of care Jones v Bartlett Commentary Duty to Provide Tenant with Quiet Possession/Duty Not to Derogate Tenant’s Duty to Use the Premises in a Tenant-Like Manner Miscellaneous tenant duties Express contractual duties Specific statutory duties Revision Questions Assignment and Sub-Letting Qualification of the right Privity of contract Privity of estate P&A Swift Investments v Combined English Stores Group Commentary Remedies Right of re-entry Termination and repudiation Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd Commentary The doctrine of frustration Merger and surrender Revision Questions 8 Native Title Pre-Mabo Position Commentary The Mabo Decision Revisiting sovereignty assumptions Radical Title Common Law Native Title Extinguishment Common Law Doctrine of Extinguishment: More than a Pragmatic Compromise Commentary Revision Questions Statutory Recognition of Native Title Commentary Traditional Laws and Customs Members of the Yorta Yorta Aboriginal Community v Victoria Commentary Bodney v Bennell Commentary Revision Questions Yanner v Eaton Commentary Extinguishment Tests Wik and the Scope of Common Law Extinguishment Wik Peoples v Queensland Commentary Revision Questions Western Australia v Ward Commentary Fejo v Commonwealth Commentary Native Title and Coastal Waters Akiba v The Commonwealth Commentary The Native Title Act: An Outline of Key Provisions Recognition of native title The determination of native title Validation and confirmation of past Acts Validation of intermediate period Acts Future Act Regime The registration test Right to negotiate ILUAs Revision Questions NTA Overview Categorisation of Crown Grants Under NTA Effect of Validation on Native Title Future Act Regime: Nature, Effect and Requirements 9 Equitable Interests The Equitable Jurisdiction The Difference Between Common Law and Equitable Interests Different Forms of Equitable Title Express equitable interests Elements of a trust Westdeutsche Landesbank Girozentrale v Islington London Borough Council Commentary DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties Commentary Formality Requirements for the Creation of Express Trusts Formality Requirements for the Creation of Equitable Interests in Land: Statute of Frauds Revision Questions Doctrine of Part Performance Implied Equitable Interests Resulting trusts Failed Express Trust Specific Purpose Loan Revision Questions Contributions to Property: Purchase Money Resulting Trusts Trustees of the Property of Cummins (a bankrupt) v Cummins Commentary Other Forms of Implied Equitable Interests: The Equitable Lien Imposed Equitable Interests Remedial constructive trust Muschinski v Dodds Commentary Baumgartner v Baumgartner Commentary Giumelli v Giumelli Commentary Revision Questions The Institutional Constructive Trust Lysaght v Edwards Commentary Tanwar Enterprises Pty Ltd v Cauchi Commentary Revision Questions The Personal (Mere) Equity Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) Commentary Revision Questions Overview of Equitable Proprietary Interests 10 Priority Rules Relevance of Priority Legal Interests Formalities Commentary Manton v Parabolic Pty Ltd Commentary Chain of Title Nemo Dat Principle Equitable Interests Multiplicity Priority Rules Prior legal and subsequent equitable Northern Counties of England Fire Insurance Co v Whipp Commentary Revision Questions Prior Equitable Title and Subsequent Legal Title Pilcher v Rawlins Commentary The Doctrine of Notice Revision Questions Tacking: Tabula in Naufragio Wilkes v Spooner Rule Competing Equitable Interests Rice v Rice Commentary Estoppel Revision Questions Prior Mere Equity and Subsequent Equitable Interest Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liq) Ruthol v Mills Commentary Revision Questions 11 The Torrens System An Outline of the Torrens System: Old Title Land, the Deeds Registration System and Conversion of Old Title Objectives of the Torrens System Characteristics of the Torrens System The Register Registrable interests Paramount interests Indefeasibility of Title: the Statutory Provisions Commentary Immediate and deferred indefeasibility Gibbs v Messer Commentary Frazer v Walker Commentary Breskvar v Wall Commentary Mercantile Credits v Shell Co of Australia Ltd Commentary Revision Questions Statutory Exceptions to Indefeasibility Statutory fraud Loke Yew v Port Swettenham Rubber Co Commentary Bahr v Nicolay (No 2) Commentary Russo v Bendigo Bank Commentary Bank of South Australia v Ferguson Commentary Cassegrain Pty Ltd v Gerard Cassegrain Commentary In Personam Exception Bahr v Nicolay (No 2) Commentary Macquarie Bank v Sixty-Fourth Throne Commentary LHK Nominees Pty Ltd v Kenworthy Commentary Farah Constructions Pty Ltd v Say-Dee Pty Ltd Commentary Revision Questions Volunteers King v Smail Commentary Rasmussen v Rasmussen Valoutin Pty Ltd v Furst Commentary Bogdanovic v Koteff Commentary Conlan v Registrar of Titles Commentary Revision Questions Inconsistent Legislation Pratten v Warringah Shire Council Commentary Horvath v Commonwealth Bank of Australia Commentary Hillpalm v Heavens Door Commentary City of Canada Bay Council v Bonaccorso Pty Ltd Commentary Revision Questions Prior Certificate of Title/Erroneous Description of Land Forgery, Insufficient Power of Attorney or Disability Paramount Interests: Adverse Possession, Easements and Tenancies Adverse possession Variations Easements Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd Commentary McGrath v Campbell Commentary Tenancies State Guarantee of Title Bringing the land under the Act Deprivation of an interest or estate from fraud Diemasters v Meadowcorp Commentary Error or misdescription in the Register Registration of another person Registrar’s Power to Correct the Register Revision Questions 12 Electronic Conveyancing What is Electronic Conveyancing? Regulatory Framework Key Concepts Acronyms The documentary framework for PEXA Client authorisation Verification of identity Digital signature Electronic Certificate of Title Summary of eCT developments in New South Wales Developments for eCT in other states Electronic Conveyancing and the Torrens System Concerns and Risks Associated with Electronic Conveyancing Benefits of Electronic Conveyancing Conclusion 13 Unregistered Interests Nature of Unregistered Interest Barry v Heider Commentary The Caveat System The Nature of a Caveatable Interest Failure to Lodge a Caveat Leros Pty Ltd v Terara Pty Ltd Commentary Caveat Must Relate to an Existing Interest Priority Disputes Between Unregistered Interests Merit analysis: assessing the better equity Heid v Reliance Finance Corporation Commentary Different forms of priority disputes Black v Garnock Commentary J and H Just (Holdings) v Bank of New South Wales Commentary IAC (Finance) Pty Ltd v Courtenay Commentary Revision Questions Jacobs v Platt Nominees Commentary The Relevance of Notice Moffett v Dillon Commentary Revision Questions 14 Easements Nature of an Easement Easements and natural rights Profits à prendre Rentcharge Essential Elements of an Easement Dominant and servient tenement The easement must accommodate the dominant tenement Dominant and servient owners must be different The easement must be capable of forming the subject matter of a grant Re Ellenborough Park Riley v Penttila Commentary Ancillary rights Different Forms of Easement New easement rights Grants and reservations Express easements and statutory powers Implied easements of necessity and common intention Easements of necessity Adealon International Proprietary Ltd v London Borough of Merton Commentary North Sydney Printing Pty Ltd v Sabemo Investment Corp Pty Ltd Commentary Common intention easements Continuous and apparent easements McGrath v Campbell Commentary Easements arising from construction Dabbs v Seaman Commentary Easements arising under the non-derogation principle Wheeldon v Burrows Commentary Revision Questions Easements by Prescription Construction of Easements Westfield Management Ltd v Perpetual Trustee Ltd Commentary Extinguishment and Modification of Easements Abandonment Treweeke v 36 Wolseley Road Pty Ltd Commentary Bookville Pty Ltd v O’Loghlen Commentary Extinguishment on the basis of a change in circumstances Unity of ownership Revision Questions Answer Plan 15 Restrictive Covenants Contractual Nature of the Covenant The Utility of Covenants Privity of Contract and the Enforcement of Covenants Revision Questions Rule against Passing the Burden of a Covenant Under Common Law Austerberry v Corporation of Oldham Commentary Benefit and Burden of a Covenant Thamesmead Town Ltd v Allotey Commentary Annexation of Rentcharge Revision Questions Passing the Benefit Under Common Law: The ‘Touch and Concern’ Test Congleton v Pattison Commentary Revision Questions Passing the Burden in Equity: Enforcing a Restrictive Covenant Tulk v Moxhay Commentary Forestview Nominees v Perpetual Trustees WA Commentary Restrictive rather than positive Intention to impose the burden upon a knowing successor in title Covenant identifies benefited land Revision Questions Passing the Benefit of a Covenant in Equity Federated Homes v Mill Lodge Properties Commentary Midland Brick Company Pty Ltd v Welsh Commentary Revision Questions Assignment of Covenants Assigning the Benefit of a Covenant in Equity Re Union of London and Smith’s Bank Ltd’s Conveyance Commentary Revision Questions Building Schemes Basic requirements for building schemes Elliston v Reacher Commentary Mutuality Small v Oliver & Saunders (Developments) Ltd Commentary Building schemes and the Torrens system Re Dennerstein Commentary Revision Questions Extinguishment and Modification of Covenants Stanhill Pty Ltd v Jackson Commentary Revision Questions Answer Plan 16 Mortgages What is a Mortgage? The Equity of Redemption Campbell v Holyland Commentary Revision Questions Clogs on the equity of redemption Relevance of Unconscionability Lift Capital Partners Pty Ltd v Merrill Lynch International Commentary Revision Questions Formality Requirements and Intention Revision Questions Types of Mortgages Old title mortgage Torrens title mortgage Figgins Holdings v SEAA Enterprises Pty Ltd Commentary Revision Questions Equitable mortgages Formal mortgage over equitable title Formal mortgage over legal title improperly executed Specifically enforceable agreement to mortgage Theodore v Mistford Pty Ltd Commentary Mortgage by deposit of title deeds (mortgagor and third party) Re Wallis and Simmonds (Builders) Ltd Commentary CNG Co (Aust) Pty Ltd v Australia & New Zealand Banking Group Commentary Consumer Credit Legislation Revision Questions Rights and Duties Under a Mortgage Right to sue for loan moneys Right to possession Right to assign a mortgage debt Revision Questions Power of Sale Notice requirements Good faith requirements of the mortgagor Upton v Tasmanian Perpetual Trustees Ltd Commentary Revision Questions Improper sale and third party purchasers Forsyth v Blundell Commentary Foreclosure and Receivership Revision Questions 17 Co-Ownership What is Co-ownership? Joint tenancy Unity of possession Unity of interest Unity of title Unity of time The right of survivorship The forfeiture rule Revision Questions Tenancy in common Creation Requirements Creation under common law Robertson v Fraser Commentary Common law presumption of a joint tenancy Public Trustee v Pfeiffle Commentary Revision Questions Statutory presumption of a joint tenancy Aoun Investments Pty Ltd v Chief Commissioner of State Revenue Commentary Revision Questions Creation in equity Unequal contribution to purchase price Delehunt v Carmody Commentary Mortgagees Business partners Other circumstances where beneficial entitlement intended Malayan Credit Ltd v Jack Chia-MPH Ltd Commentary Stack v Dowden Commentary Revision Questions Approaches to Assessing Co-owner Presumptions Rights and duties of co-owners Right to occupy/occupation rent Wrongful exclusion Biviano v Natoli Commentary Revision Questions Agreement to pay occupation rent Occupation rent and claim for improvements Rents received by occupying co-owner Forgeard v Shanahan Commentary Expenditure on improvements and repairs Revision Questions Right to encumber/alienate interest of a co-owner Hedley v Roberts Commentary Trespass and waste Severance of a Joint Tenancy What is severance? Severance by alienation Wright v Gibbons Commentary Revision Questions Alienation at law and alienation in equity Corin v Patton Commentary Revision Questions Severance by lease Revision Questions Severance by mortgage Lyons v Lyons Commentary Severance by agreement Hulme v Schaecken Commentary Peldan v Anderson Commentary Revision Questions Criminal Culpability and the Joint Tenancy Revision Questions Partition and Sale Legislative provisions Commentary Revision Questions Exam Plan Index