Category Archives: Property Law

Magna Carta | 15 June 1215

ON THIS DAY in 1215, King James executed the Magna Carta at Runnymede. King James agreed to this document which limited the power of the Crown and granted the barons and citizens certain individual rights, freedoms, liberties and protections. The document laid the constitutional foundations for government under the rule of law.

http://bailii.austlii.edu.au/uk/legis/num_act/1215/magna__carta.html

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Contract for sale of land – Refusal by purchaser to complete – Anticipatory breach – Specific performance – Recision – Damages

Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 (30 April 1976).

“Vendor and Purchaser – Sale of land – Contract of sale – Refusal by purchaser to complete – Anticipatory breach – Suit for specific performance by vendor – Continued refusal by purchaser to complete – Whether vendor entitled to rescind and claim damages.”

A contract may be rescinded by a vendor for repudiation whilst an action for specific performance is on foot if the purchaser refuses to complete and acts as though it intends to be no longer bound by the contract.

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Statute of Frauds 1677 | 16 April 1677

ON 16 APRIL 1677, the English Parliament enacted the Statute of Frauds 1677.

This Act required certain dealings with real property, sale of goods, estates, trusts and marriage be reduced to writing and signed in order to avoid fraud or perjury.

The provisions of the Act have since been incorporated into many pieces of legislation around the common law world.

 

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Solicitors advising on loan or security documents

Solicitors are sometimes asked by their clients to provide independent legal advice to satisfy the bank’s requirement that the client obtain independent legal advice when going guarantor providing security for a borrower.

Rule 58 of the NSW Solicitors Rules 2013 sets out the conditions upon which a solicitor may give independent advice on loan and security documents.

A Statutory Declaration made by the borrower evidencing the independent advice must be in the form set out in Schedules 1, 1A or 1B.

A Statutory Declaration made by the guarantor evidencing the independent advice must be in the form set out in Schedules 2 or 2A. The Statutory Declaration is to be returned to the bank.

The borrower or guarantor who receives the advice must sign an acknowledgement in the form set out in Schedule 4, 4A, 4B or 4C. The acknowledgement must be kept by the solicitor and NOT returned to the bank.

A solicitor must not sign a certificate to the effect that they have provided independent advice.

http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/814115.pdf

 

Solicitors Rules 2013

 

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Cassegrain v Gerard Casseagrain & Co Pty Ltd [2015] HCA 2

ON 4 FEBRUARY 2015, the High Court of Australia delivered Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 (4 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/2.html

Felicity Cassegrain and her husband Claude Cassegrain received an interest as joint tenants in land owned by Gerard Cassegrain & Co Pty Ltd. The transfer of the interest was found to be fraudulent on the part of Claude because he nominated the consideration for the transaction to be the debiting of his loan account when he knew that the company did not owe him the money. Gerard subsequently transferred his interest in the land to Felicity for nominal consideration. There was no allegation of Felicity being involved in any fraud.

Proceedings were brought in the NSW Supreme Court to transfer Felicity’s title back to the company because of the fraud. The trial judge concluded that Claude had acted fraudulently and ordered that he pay the company equitable compensation, but dismissed the proceedings against Felicity as there was no fraud by her.

The NSW Court of Appeal allowed the company’s appeal of the NSW Supreme Court decision, concluding that Claude was Felicity’s agent.

The High Court allowed in part Felicity’s appeal of the Court of Appeal decision. The High Court held that Felicity’s title in joint tenancy was not defeated by fraud under s42 of the Real Property Act 1900 (NSW) because Claude acted outside the scope of the authority given to him by her and was therefore not her agent.

The High Court also held that Felicity was not a bona fide purchaser on the transfer of Claude’s interest to her and declared and ordered that the company may recover a half interest in the land as tenant in common by the operation of s118(1)(d)(ii) of the Real Property Act.

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Commissioner of State Revenue v Lend Lease Development Pty Ltd; Commissioner of State Revenue v Lend Lease IMT 2 [HP] Pty Ltd; Commissioner of State Revenue v Lend Lease Real Estate Investments Limited [2014] HCA 51

ON 10 DECEMBER 2014, the High Court of Australia delivered Commissioner of State Revenue v Lend Lease Development Pty Ltd; Commissioner of State Revenue v Lend Lease IMT 2 [HP] Pty Ltd; Commissioner of State Revenue v Lend Lease Real Estate Investments Limited [2014] HCA 51 (10 December 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/51.html

The High Court held that the duty to be charged on the land transfers at Melbourne Docklands is to be assessed with reference to a “single, integrated and indivisible transaction” consisting of the payments under the sale of land contracts as well as payments made under a “development agreement”.

 

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Baumgartner v Baumgartner [1987] HCA 59 | 10 December 1987

ON THIS DAY IN 1987, the High Court of Australia delivered Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 (10 December 1987).

http://www.austlii.edu.au/au/cases/cth/HCA/1987/59.html

The parties had lived together in a de facto relationship. They pooled their earnings to meet all outgoings of the joint relationship, including mortgage payments over the family home purchased with the husband as the only registered proprietor.

After about four years the relationship came to an end. The wife sought a declaration that she held an interest in the property in trust. The husband asserted that only he held the legal title to the house.

The court held that the wife held a beneficial interest in the property by way of constructive trust.

Per Mason CJ, Wilson and Deane JJ at 149:

“The case is accordingly one in which the parties have pooled their earnings for the purposes of their joint relationship, one of the purposes of that relationship being to secure accommodation for themselves and their child. Their contributions, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home, were on the basis of, and for the purposes of, that joint relationship. In this situation the appellant’s assertion, after the relationship had failed, that the Leumeah property, which was financed in part through the pooled funds, is his sole property, is his property beneficially to the exclusion of any interest at all on the part of the respondent, amounts to unconscionable conduct which attracts the intervention of equity and the imposition of a constructive trust at the suit of the respondent.”

The High Court declared that the parties hold beneficial interests in the property of 55% to the husband and 45% to the wife, subject to adjustments.

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Penfolds Wines Pty Ltd v Elliott [1946] HCA 46 | 25 November 1946

ON 25 NOVEMBER 1946, the High Court of Australia delivered Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204 (25 November 1946)

http://www.austlii.edu.au/au/cases/cth/HCA/1946/46.html

Mr Elliott used of Penfolds’ empty wine bottles to carry other wine.

Dixon J (at 229) said:

“But nothing in the course pursued by the respondent in receiving and filling bottles and returning them could possibly amount to the tort of conversion. The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel. It may take the form of a disposal of the goods by way of sale, or pledge or other intended transfer of an interest followed by delivery, of the destruction or change of the nature or character of the thing, as for example, pouring water into wine or cutting the seals from a deed, or of an appropriation evidenced by refusal to deliver or other denial of title. But damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than for the purpose of affecting the immediate right to possession, nor is it always conversion to lose the goods beyond hope of recovery. An intent to do that which would deprive “the true owner” of his immediate right to possession or impair it may be said to form the essential ground of the tort.”

The tort of conversion generally concerns a defendant’s intentional dealing with goods in a manner inconsistent with or repugnant to the plaintiff’s ownership of the goods: per Latham CJ at 217 – 221, Dixon J (Starke J agreeing) at 228 – 230, McTiernan J at 234 – 235 and Williams J at 239 – 244.

An act repugnant or inconsistent to the terms of the bailment, or consistent only to treat the goods as his or her own, terminates the bailment resulting in possession revesting to the owner who can sue the bailee in trover: per Latham CJ at pp 214 and 217-8, Dixon J at p 227, McTiernan J at p 233 and Williams J at pp 241-2.

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Free guide to selling a home

For a free copy of the Guide to Selling a Home visit http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/657103.pdf

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Free guide to buying a house

For a free copy of the Guide to Buying a Home visit: https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/657101.pdf

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