Equity Winter Session 2009 Alysia Debowski

Questions from last class Textbooks Good faith v good conscience Missing class Contact details  

Revision Alvin contracted with Barry. Barry breached the contract. Although Alvin suffered no loss as a result of the breach, Barry made a profit as a direct result of the breach. Alvin sued Barry for breach of contract. Because damages at common law would have been nominal, and because the facts and circumstances of the case were such that the court thought it inappropriate for Barry to retain his ill- gotten profits, the court ordered Barry to account in equity to Alvin for the profits Barry had made. Is the court’s decision an example of the fusion fallacy or an illustration of the maxim ‘equity will not suffer a wrong to be without a remedy’?

Introduction Who is the assignor? Who is the assignee? What exactly is being assigned? What is the nature of the property or interest being assigned? What is the intended form of the assignment? What is the test for assignments in that form? Is writing required? Is the assignment intended to take effect immediately? Is it voluntary or for consideration? If the assignment is voluntary, can the assign or (the “donor”) recall the gift? Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148 Comptroller of Stamps (Vic) v Howard Smith (1936) 54 CLR 614

Voluntary Assignment of Legal Property Assignment of Property Assignable at Law Conveyancing Act 1919 (NSW), s 12 (Choses in Action) William Brandt’s & Sons v Dunlop Rubber Co. [1905] AC 454 Milroy v Lord (1862) 4 De GF & J 264; 45 ER 1185 The First “Leg” of Milroy v Lord Anning v Anning (1907) 4 CLR 1049 Corin v Patton (1990) 169 CLR 540; 92 ALR 1 Noonan v Martin (1987) 10 NSWLR 402

Conveyancing Act 1919 (NSW), s 12 Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees.

Voluntary assignments (cont.) Voluntary Assignments of Torrens Title Land Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555 Norman’s Case per Windeyer J at 28-9 Cope v Keene (1968) 118 CLR 1 Taylor v FCT (1969) 123 CLR 206 Olsson v Dyson (1969) 120 CLR 365 Grey v Australian Motorists & General Ins. Co. P/L [1976] 1 NSWLR 669 Bogdanovic v Koteff (1988) 12 NSWLR 472 Corin v Patton (1990) 169 CLR 540; 92 ALR 1 Costin v Costin (1997) 7 BPR 15,167

Voluntary assignments (cont.) The Second “Leg” of Milroy v Lord Re Rose; Rose v IRC [1952] Ch 499 Re Rose [1949] Ch 78 Assignments of Property Not Assignable at Law Fortescue v Barnett (1834) 3 My & K 36; 40 ER 14 Re Patrick; Bills v Tatham [1891] 1 Ch 82 Norman’s Case per Windeyer J, at Shepherd v FCT (1965) 113 CLR 385, per Kitto J, at 397

Voluntary assignments of equitable property Smith v Perpetual Trustee Co. Ltd (1910) 11 CLR 148 at 163 Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 Timpson’s Executors v Yerbury [1936] 1 KB 645 at 664

Voluntary assignments of equitable property (cont.) Dealings in the Form of Direct Assignments Norman’s Case per Windeyer J, at 30 FCT v Everett (1979) 143 CLR 440 at Comptroller of Stamps v Howard-Smith per Dixon J at 622 Ward v Duncombe [1893] AC 369, per Lord McNaghten at 392 Timpson’s Executors v Yerbury [1936] 1 KB 645 at 658 PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR 241 Hagan v Waterhouse (1992) 34 NSWLR 308 at 382G to 387A

Voluntary assignments of equitable property (cont.) Dealings in the Form of Declarations of Trust Grey v IRC [1958] Ch 690 at 715 Comptroller of Stamps v Howard-Smith, per Dixon J at Paul v Constance [1977] 1 All ER 195

Voluntary assignments of equitable property (cont.) Dealings in the Form of Directions to the Trustee (a)to deal with the equitable estate Howard-Smith per Dixon J, at 622 Grey v IRC [1960] AC 1 Parker & Parker v Ledsham [1988] WAR 32 (b)to deal with the legal estate Vandervell v IRC [1967] 2 AC 291 DKLR Holding Co (No. 2) P/L v Commissioner of Stamp Duties (NSW) (1982) 56 ALJR 287

Voluntary assignments of equitable property (cont.) Dealings in the Form of a Release Crichton v Crichton (1930) 43 CLR 536 The Requirement of Writing Conveyancing Act 1919 (NSW), s 23C Secretary Department of Social Security v James (1990) 95 ALR 615 Hagan v Waterhouse (1991) 34 NSWLR 308 at 385–6 Hunter v Moss [1994] 3 All ER 215

Conveyancing Act 1919 (NSW), s 23C (1) Subject to the provisions of this Act with respect to the creation of interests in land by parol: (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law, (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will, (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing. (2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.

The Rule in Strong v Bird Strong v Bird (1874) LR 18 Eq 315 Re Mulholland (1916) 33 WN (NSW) 89 Benjamin v Leicher (1998) 45 NSWLR 389

Donationes Mortis Causa Smith v Casen (1718) 1 P Wms 406 Duffield v Elwes (1827) 1 Bligh (NS) 497 at 534; 4 ER 959 at 972 Bayliss v Public Trustee (1988) 12 NSWLR 540 Sen v Headley [1991] 2 All ER 636 Assignments for Value Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999 Tailby v Official Receiver (1888) 13 App Cas 523 Chang v Registrar of Titles (1976) 137 CLR 177, per Mason J at 184.

Assignment of Legal Property for Valuable Consideration Last v Rosenfeld [1972] 2 NSWLR 923 Rochefoucauld v Boustead [1897] 1 Ch 196 Bannister v Bannister [1948] 2 All ER 133 Allen v Snyder [1977] 2 NSWLR 685

Assignment of Equitable Property for Value Comptroller of Stamps (Victoria) v Howard-Smith (1936) 54 CLR 614 Conveyancing Act 1919 (NSW) s 23C Adamson v Hayes (1973) 130 CLR 276 Oughtred v IRC [1960] AC 206

Assignments of Future Property The Definition of Future Property Re Lind [1915] 2 Ch 345 Tailby v Official Receiver (1888) 13 App Cas 523 Norman v FCT (1963) 109 CLR 9 Shepherd v FCT (1965) 113 CLR 385 Williams v IRC [1965] NZLR 395 McLeay v IRC (1963) 9 AITR 265

Assignments of Future Property (cont.) The Basis for the Enforcement of Assignments of Future Property Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999 Tailby v Official Receiver (1888) 13 App Cas 523 Palette Shoes Pty Limited v Krohn (1937) 58 CLR 1, at 27, by Dixon J McIntyre v Gye (1994) 122 ALR 289

Property which cannot be Assigned Personal Contracts Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 Peters v General Accident and Life Assurance Co [1937] 4 All ER 628 Bare rights to Sue Glegg v Bromley [1912] 3 KB 474 Trendtex Trading v Credit Suisse [1980] 3 All ER 721; [1981] 3 WLR 766 Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148

Applying the theory… Mary and John purchased a house under Torrens title together as joint tenants. Not long after, Mary was diagnosed as having terminal cancer, and reevaluated her life priorities. Mary told her former boyfriend Sven that she wanted him to have her share in the house, and handed him an executed memorandum of transfer and a letter to Mary’s solicitor directing her to release the certificate of title. Mary’s solicitor refused to release the certificate of title to Sven without John’s permission. Before the issue could be resolved, Mary was hit by a freak bolt of lightning and died. Is Sven entitled to Mary’s interest in the house?

In summary What information do you need to know to determine if an assignment is effective? What are the three key points you would include in your exam notes to summarise this class?

Next class Fiduciary Obligations Equity & Trusts, Chapter 4