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Foundations of Property LawLAWS12065

3/13/2019CQUniversityTylah Standen (s0240909)

Tylah Standen s0240909 LAWS12065

FOUNDATIONS OF PROPERTY LAW

TABLE OF CONTENTSIntroduction to Property Law........................................................................................................................................3

Questions.........................................................................................................................................................................3

Topic 1 – Concept of Property Law.............................................................................................................................4

Notes................................................................................................................................................................................... 4

Questions.........................................................................................................................................................................8

Topic 2 – Classification and Boundaries Between Types of Property.......................................................10

Notes................................................................................................................................................................................ 10

Questions......................................................................................................................................................................14

Topic 3 – Possession.......................................................................................................................................................16

Notes................................................................................................................................................................................ 16

Questions......................................................................................................................................................................25

Topic 4 – Title to Personal Property........................................................................................................................27

Notes................................................................................................................................................................................ 27

Questions......................................................................................................................................................................28

Topic 5 – Registration System for Security Interest in Personal Property Under the PPSA and PPSR....................................................................................................................................................................................... 30

Notes................................................................................................................................................................................ 30

Questions......................................................................................................................................................................30

Topic 6 – Fragmentation of Proprietary Interests in Land............................................................................30

Notes................................................................................................................................................................................ 30

Questions......................................................................................................................................................................30

Topic 7 – State Land in QLD and Native Title.......................................................................................................30

Notes................................................................................................................................................................................ 30

Questions......................................................................................................................................................................30

Topic 8 – Acquisition of Property Rights...............................................................................................................30

Notes................................................................................................................................................................................ 30

Questions......................................................................................................................................................................31

Topic 9 – Equitable Property and Equitable Doctrines...................................................................................31

Notes................................................................................................................................................................................ 31

Questions......................................................................................................................................................................31

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INTRODUCTION TO PROPERTY LAW

QUESTIONS

1. Take a sheet of paper and list the words that come to mind when you read or think about the word 'property'. Discuss and explain your words with a colleague and post up some examples for others to see.

The words that come to mind when I read the word property are; ownership, land, buildings, items, things, personal. My understanding of property when I started in week one was that it defines what we own. However I have quickly come to realise that property is actually more about the rights over something, rather than the actual thing itself. So property is not the land, but rather the rights a person has over the land.

2. What lessons if any do you think Australia might learn from the South African experience and approach to Indigenous land rights and property rights in general given that each jurisdiction is underpinned by different legal systems?

The concept of land in Africa I admit is a little difficult for me to get my head around. But from what I gather, the government has made it possible for them to reclaim the land and redistribute it to the general population. Specifically, it seems to be in relation to farm land and allowing the unemployed to work there. There is also a lot of argument it seems in regards to ownership if someone has been living in a place for a long time. This appears to be an equity argument, where if a person lives on a piece of land (whether legally or illegally) for a long amount of time, they have a claim to it even if they do not own it by law. Therefore if a person owns a piece of property but doesn’t use it, and then squatters take up residence for a good amount of time, those squatters can argue that they live there and use the land more than the owner.

From this, I think Australia could learn to be less strict when it comes to land ownership. Australia still has some issues when it comes to native title, and therefore maybe by coming to terms that ownership is not necessarily as important to society as we once thought, we might be able to solve some of our issues. Further, the world as a whole is wanting to move in a more humane and equitable direction, so we need to learn to share and be more of a community rather than being so individual and self-centred. This may mean that each jurisdiction and type of legal system will have to merge rather than be separate.

Yet, the African approach is not working as they had planned. Apparently around fifty percent of the farms are failing, which is having a detrimental effect on their agriculture industry. I’m not entirely sure why they are failing, but it may have something to do with a lack of work ethic and pride, seeing as the people working the land do not own it. Either way, I understand why South Africa decided to try this. Their legal background is a combination of Dutch and English, meaning they are more community driven. So it makes sense they would try and reduce individual land ownership in favour of community land. In Australia however, I am not so sure how popular such a proposal would be.

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TOPIC 1 – CONCEPT OF PROPERTY LAW

NOTESDEFINITIONS

Property ‘Institution by means of which societies regulate access to material resources’Capitalist community

‘Offer extensive protection to private property due to belief that ability to own property is essential incentive for wealth creation’

Communist Community

‘Favour publicly-owned property, in sphere of economic production on grounds that private property is source of oppression and inequality’

In rem ‘Enforceable in respect of a thing’In Personam ‘Enforceable against a person’Licence ‘Arises when permission is given by one person to another to do an act on the

licensor’s land which would otherwise constitute a trespass’Numerus clausus principle

‘Landowners are not at liberty to customize land rights, in the sense of re-working them in an entirely novel way to suit their particular individual needs and circumstances. Rather, any new rights must fit within firmly established pigeonholes, of which the law permits only a small and finite number’

What is Property Law?

A part of private law (governs relationship between private individuals as opposed to public law, which governs relationship between people and state)

Defines relationship between people in respect to things (their power over the thing rather than the thing itself1)

Australian property law shaped by English common law Right to exclude others from doing something in respect to a thing There are different types and levels of rights, with at times multiple people having a right

over one thing

Right to alienate – ‘A proprietary right must be capable in its nature of assumption by third parties’2. Non-assignable rights treated as property law do exist, such as a beneficiary under a will.

Right to exclude – A right for a person to exercise against the general public, as opposed to a public right where all have access to use property. Private law property rights are in rem, as distinguished from private law obligations which are in personam. However, in modern society property rights often overlap with other areas of law.

1 Yanner v Eaton (1999) 201 CLR 351, 17.2 R v Tookeyl Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 342-343.

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Property Rights and…

Contract Rights

Contractual Rights are enforceable against particular persons and do not necessarily give someone rights over things

Property rights may arise from a contract Licences created by contracts

o Bare licence – person permits another on their land. No contract is created nor proprietary interest. Can be revoked at will.

o Contractual licence – licence created by a contract. It is argued that the owner can revoke the licence, but they will be in breach of the contract and will be liable for damages.

o Contractual licence couples with an interest – Licence cannot be revoked as the other person to the contract has a proprietary right.

o Equity may intervene to prevent a contractual licence being revoked.3 ‘Expansive freedom of contract allows parties to fashion rights over land at will, while

property narrowly limits the kinds of rights that may attach to the land so as to bind successors in title’

Rights which property law specifically covers; those that confer possession (estates: fee simple, life interest and leasehold), servitudes (easements, profits and restrictive covenants) and security interests (mortgages and other charges)

3 Heidke v Sydney City Council (1952) 52 SR (NSW) 143.

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Milirrpum v Nabalco (1971) 17 FLR 141

'Property... generally implies the right to use or enjoy, the rights to exclude others, and the right to alienate. I do not say all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications.' Blackburn J at 171

Stow v Mineral Holdings (Australia) Pty Ltd (1977)

180 CLR 295

Respondents mining on land adjacent to South West National Park in Tasmania. Appellants lodged objections with warden on grounds it would damage the park.'The fact that some [people] are more disposed than others, derive more benefit therefrom and use the statutory right more often than others, does not elevate that which is a public right enjoyed by all members of the public equally into a private right capable of being described as an estate or interest in the land.' Aickin J

Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605

Plaintiff sued defendant for damages and assault. Defendant's defence was that the plaintiff was trespassing despite having paid for a ticket to see the races, and was removed with as much force as was required.'No grant of any proprietary right... has been made to the plaintiff. He has simply obtained a contractual right which is enforceable in personam by an action for damages.' Latham CJ

King v David Allen & Sons, Billposting Ltd [1916] 2 AC 54

The appellant made an agreement with the respondents that they could put bills and posters on a wall of a theatre to be built. The theatre was built, however the company who owned the theatre did not hold to the contract which was made independently by the appellant.'There is a contract between the appellant and the respondants which creates nothing but a personal obligation.' Lord Buckmaster LC'The document... does not create any interest in land at all; it merely amounts to a promise on the part of Mr King that he would allow the other party to the contract to use the wall for advertising purposes.' Earl Loreburn

Georgeski v Owners Corporation Strata Plan 49833

(2004) 62 NSWLR 534

Plaintiff held a licence over portion of river bank on which the plaintiff built a jetty and slipway. They sought an order declaring rights over the jetty and slipway, preventing toe defendants from trespassing'Her [the plaintiff] right to occupy is only for the limited purpose of Jetty and Slipway (concrete with sliprails) and that is not a purpose that contemplates sustained activity of a kind that would be expected to entail ongoing physical exclusion of other persons. The plaintiff is, by the terms of the contract granting her the licence, subject to an explicit requirement that she allow access by the public over the land.' Barrett J


Rights of Persons

Rights of persons include rights over your own body, reputation and privacy ‘There is no right of property in a dead body… unless it has undergone some process or

application of human skill such as stuffing or embalming’.4

Human tissue of the deceased can be considered property in relation to inspection and gathering of evidence5

A wife may have claim to her deceased husband’s sperm if the sperm was removed from the husband for her benefit6

Privacy is an intangible property right with limited to no recognized law. However, Australian judges are increasingly seeing a need to accommodate for a common law action for invasion of privacy, which has been outlined as including;

o A willed act by the defendanto Which intrudes upon the privacy or seclusion of the plaintiffo In a manner which would be considered highly offensive to a reasonable persono And which causes the plaintiff detriment in the form of mental harm which

hinders the plaintiff from doing an act they are lawfully entitled to do7

4 Doodeward v Spence (1908) 6 CLR 406, 414.5 Pecar v National Australia Trustees Ltd [1996] NSWSC 2518; Rocke v Douglas [2000] WASC 146.6 Edwards; Re the Estate of Edwards [2011] NSW 478.7 Grosse v Purvis [2003] QDC 151.

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Moore v Regents of the University of California (1990)

793 P 2d 479

Moore was treated for leukaiemia, during which many samples of body substances were taken. Dr Golde, his physician, knew these samples were valuable for research, and sold them for commercial development. Moore then sued, claiming damages for conversion.'Of the relevant policy considerations, two are of overriding importance. The first is protection of a competent patient's right to make autonomous decisions . That right... is grounded in well-recognized and long-standing principles of fiduciary duty and informed consent... The second importance policy consideration is that we do not threaten with disabling civil liability innocent parties who are engaged in socially useful activities, such as researchers who have no reason to believe that their use of a particular cell sample is, or may be, against a donor's wishes...' Panelli J'The majority's holding simply bars plaintiff, the source of the cells, from obtaining the benefit of the cells' value, but permits defendants, who allegedly obtained the cells from plaintiff by improper means, to retain and exploit the full economic value of their ill-gotten gains free of their ordinary common law liability for conversion.' Broussard J (In dissent)

Victoria Park Racing and Recreation Grounds Co Ltd v

Taylor (1937) 58 CLR 479

The plaintiff, who owns the race grounds, wishs to prevent the defendant, who owns land next to the racecourse and who has built an elevated platform from which the races and winners can be seen, from using said platform to broadcast the race as this means people will listen to the broadcast rather than attend the races'English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers and of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour's view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained.' Dixon J

Australian Broadcasting Corporation v Lenah Game

Meats Pty Ltd (2002) 208 Clr 199

Respondent sought to restrain the appellant from using footage obtained by an animal rights group who had trespassed on land which showed unfavourable treatment of animals'The lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech... The foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity.' Gleeson CJ

A medical practitioner's name was removed from the register of practitioners, effectively preventing him the right to continue his line of work'A right to practise a profession is incapable of valuation... What is valuable is the person's own earning capacity, which is something personal to him. The right to practise is of course not transmissible' Gibbs CJ

Dorman v Rogers

(1982) 148 CLR 365


Actions are available for passing off goods or services as one’s own, as well as through breach of confidence

The main issue is the conflict with freedom of expression Right to employment is not deemed a property right

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Davis v Commonwealth (1988) 166 CLR 79

Plaintiffs produced shirts with similar logo to that of the defendants under the Australian Bicentennia Authority Act 1980. The issue involved the offence to use a symbol capable of being mistaken for an official symbol'Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonable and appropriately adapted to achieve the ends that lie within the limits of constitutional power.' Mason CJ, Deane and Gaudron JJ


Civil Rights

‘Rights to participate in public life, rather than rights to exclude others from the enjoyment of things’

Human Rights

‘Civil rights are protected not only by municipal law, but also by international human rights instruments’

Human rights is more significant in modern society than in the past

Human rights include; free expression, privacy, freedom of association, freedom from arbitrary governmental interference and to own property

While international laws are not in force in Australia, they still have an important influence on domestic laws8

In relation to property law, consider squatters rights

QUESTIONS

1. ‘In Bazley v Wesley Monash IVF Pty Ltd [2-10] QSC 118 the court held that frozen semen samples, stored for a fee by an assisted reproductive technology clinic after the donor’s death, constituted property’ [APL: 8]. Discuss in light of the historical position of the law to property in body tissue.

The law has changed quite a bit in regards to property and the rights of people, with the development of technology playing a huge role. Historically, it was stated that ‘there is no right of property in a dead body… unless it has undergone some process or application of human skill such as stuffing or embalming’.9 This makes sense, as a human body cannot be defined in the same category as other chattels, otherwise it would open up many issues in regards to human rights. However, in modern day society, the issue is more complicated than that of a dead body or piece of body. Technology allows us to take DNA samples and tissues, preserve them, and use them at a later date. So the question is, should these samples be treated in the same way? Case law such as Bazley v Wesley Monash IVF Pty Ltd suggests not.

There are a few different scenarios as to how raw human tissue may be considered property. Some DNA is taken to help with the study and development of treatments for diseases. In these cases, it is suggested that it is possible for human tissue to be property.10 The competing points

8 Mabo v Queensland (No 2) (1992) 175 CLR 1, 42.9 Doodeward v Spence (1908) 6 CLR 406, 414.10 Pecar v National Australia Trustees Ltd [1996] NSWSC 2518; Rocke v Douglas [2000] WASC 146.

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for this are the protection of the patient’s/client’s rights and the rights of society to have access to the health benefits that may come from this tissue.11 The problem comes down to what is more important to protect, with the court in Moore v Regents of the University of California ruling in favour of the greater good of the population. The other issue highlighted in this case was the commercial gains hidden from the client which the physician knew about and benefited from. In regards to human sperm, it is argued that if the sperm is removed for the purpose of inseminating for future use (ie for the wife) then it also classifies as property to the husband or wife and therefore cannot be used for purposes they do not consent to.12

There are many difficult lines to draw in this area and it is still developing as technology advances even further. The bottom line however, is that the law has proven to develop with society, so that when once there was no property in human tissue, it can be recognized now.

2. Q2 PL Q&A 1-13

[Effort 25 mins]

Required:

Draft a written response of no more than 600 words.

Review the Answer plan; answer supplied; and Examiner’s comments.

Use arguments and sources discussed in Topic 1 and legal materials in APL to support your response.

TOPIC 2 – CLASSIFICATION AND BOUNDARIES BETWEEN TYPES OF PROPERTY

11 Moore v Regents of the University of California (1990) 793 P 2d 479.12 Edwards; Re the Estate of Edwards [2011] NSW 478.

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NOTESDEFINITIONS

Real Property LandPersonal Property Chattels. Can be subdivided into the categories ‘chattels real’ and ‘chattels

personal’ (or ‘pure personalty’)Corporeal hereditaments

‘Rights of possession, or tangible real property (land)’

Incorporeal hereditaments

‘Lesser rights over land, or intangible real property such as an easement of way

Easement of way Entitles the holder only to a rights to walk across a certain piece of land owned by another person

Pure personalty Divided into two groups; choses of possession (moveable, physical objects) and choses of action, otherwise known as intellectual property (intangibles such as patents, copyrights, shares and goodwill)

Fixtures ‘a thing once a chattel which has become in law land through having being fixed to land’

Classification and Terminology

Classifying between real and personal property is important because;

Differences between the two (eg land is immovable unlike chattels) Legislation still employs the different classifications

LAND OR REALTY CHATTELS OR PERSONALTY Originated in early common law as a

right to recover, unlike personal property which allowed for damages but not recovery

Air spaces – ownership only extends to the space above the land for the ordinary use and enjoyment13 meaning one cannot build to a height that would interfere with another’s ordinary use of their land14

‘Good working rule’ – although trespass usually allows injunctions, if the trespass is minor damages will be calculated instead depending on any disrespectful behavior on the parts of the parties and the detriment caused to the defendant if an injunction is granted15

Right to land also extends to below the surface16

There are rights allowing for transfer of building heights perimeters for

Distinct from land due to being movable objects (chattels personal), with exception of leasehold interest (Chattels real) which historically was considered personal as they could not originally recover the land themselves

Chattels Personal are further divided into choses of possession (tangibles) and intellectual property (intangibles)

13 Baron Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479,488.14 Bendal Pty Ltd v Mirvac Projects Pty Ltd (1991) 23 NSWLR 494.15 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 322-323; Jaggard v Sawyer [1995] 1 WLR 269.16 Bulli Coal Mining Co v Osborne [1899] AC 351.

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commercial reasons17

Types of Property

The doctrine of fixtures

‘Chattels, by virtue of the circumstances surrounding their annexation to land, may change character from personal to real property.’

Chattels become land by being fixed to the land and thus immovable The tests for whether chattel has become a part of the land is the ‘degree of

annexation’18 test and the ‘purpose of annexation test’.19 They address whether the item has been fixed with the intention to remain their permanently (‘if a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is.’20)

If removing the object is likely to cause damage, to it or the surrounding structure, it is likely to be considered a fixture. If it is ornamental in nature and only fixed on because there is no other way to enjoy it otherwise, and if the item and surrounding structure are not likely to be damaged, it will be considered still a chattel21

‘Tenant’s fixtures’;o are fixtures which were affixed by the tenant and, even if they have become

classified as fixtures, the tenant has a right to remove them (effectively making them chattels again)

o ‘Colour of right’ is where a tenant has a dispute with the landlord about the date which the term expired for a lease, and as such the tenant may still remove fixtures. A tenant may not remove fixtures if, after a lease expires, they have been deemed to have abandoned them, or, if it is expressly stated in the contract with the landlord that such fixtures are to remain part of the property

o Tenant fixtures does not extend to agricultural fixtures, with the exception of some legislation

If a person mistakenly builds on the land of another, the fixture then is said to belong to the owner unless fraud can be proven on the part of the owner22

Unjust enrichment may be claimed depending on ‘the basis upon which the provider of the benefit acted, the choice which the recipient of the benefit had in deciding whether or not to accept the benefit and the conduct of the defendant’23

Some states have special legislation dealing with encroachment – buildings encroaching on neighbour’s land – but it is usually similar to dealing with improvements by mistake

17 Uniting Church in Australia Property Trust (NSW) v Inner (No 145) Pty Ltd (1991) 24 NSWLR 510.18 Hobson v Gorringe [1897] 1 Ch 18219 Holland v Hodgson (1872) LR 7 CP 328.20 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700, 712-713.21 Leigh v Taylor [1902] AC 157.22 Brand v Chris Building Society Pty Ltd [1957] VR 625.23 Angelopoulos v Sabatino (1995) 65 SASR 1, 9-10.

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Southern Centre of Theosophy Inc v South Australia [1982] AC

706

The appellant was registered proprietor of a lease of 500 acres of land to west of Lake George in South Australia. Over time, the high water mark had receeded and 20 acres of land which were once covered by water were now exposed. The appellant claimed the land belonged to him due to the accretion doctrine'there seems to be no reason in principle why the doctrine should be confined to such changes as are effected solely through fluvial action: a logical category would be that of natural causes which would embrace additions to (or detractions from) land brought about by the action of either or both elements, water and air... the accretion must take place by gradual and imperceptible means... the test was satified on the balance of probability... that the land has been gained, gradually, insensibly, and imperceptibly from Lake George, not at any particular moment' Lord Wilberforce


The doctrine of accretion

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Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning (Aust) Pty Ltd

[1984] VR 947

The plaintiff owned buildings which were to be renovated, and the builder subcontracted with the defendant to supply and install air-conditioning systems. The defendant did so, but removed air-conditioning plants near the end which were hooked up to the buildings. The plaintiffs sought an injunction to deliver the plants or damages for detention, coversion and trespass.'Even slight fixing to the land is sufficient to raise the presumption that a chattel is a fixture. In those circumstnaces, the onus of proving otherwise rests upon the part so contending; he must do so by showing from the relevant circumstances that it was intended that the article should remain a chattel.' Kaye J.

May v Ceedive Pty Ltd (2006) 13 BPR 24, 147

The appellant lived on land which was originally owned by the respondent's predecessor. The house however, belonged to the appellant, not the respondent. Only the land belonged to the respondent, who sought to evict the appellant. The appellant claimed they were protected by tenure provisions, however this was dependant on whether the land was considered vacand due to the house potentially being chattel and not a fixture.'If one were instead to look... at all the surrounding circumstances... and not simply the degree of annexation to the realty and the function served by that annexation, the circumstances here in their totality do not rebut the presumption in favour of the house being a fixture. On the contrary, the circumstances indicate fairly clearly that the house is affixed to the land. It must be taken as a matter of law to be a fixture constituting part and parcel of the relevant land, not withstanding expressions of subjective intention to the contrary.' Santow JA

Rendell v Associated Finance Pty Ltd [1957] VR 604

The plaintiff, Rendell, hired a car engine to Pell, who then installed it in a car he had hired from the Defendant company. The contract with the defendant company held that any goods or repairs executed would become part of the goods. Pell then was unable to meet the payments for the truck and the defendant reposessed the car, unaware that the engine had been replaced. The plaintiff sued for damages for conversion'The accessories continue to belong to their original owner unless it is shown that as a matter of practicability they cannot be identified, or, if identified, they have been incorporated to such an extent that they cannot be detached from the vehicle.' O'Bryan J


Land may have artificial (fixed until owners agree to shift them and unaffected by movement of land itself) or natural boundaries (shift by natural forces, especially where boundary is water)

Doctrine of accretion is only met when;o Legal boundaries (in relation to natural boundaries) will only change if the

erosion or accretion is so gradual as to be imperceptible to the naked eye24

o Rapid changes – caused by things such as avulsion, earthquakes and floods, will not affect legal boundaries

o In the case of accretion, increase in land will be in the landownero Erosion or decrease in the land will accrue to the Crown25

o Limitations on the doctrine of accretion can be varied to include any changes in the boundaries by operation of natural forces

o High water marks are not referred to at the moment of certificate of title, but defined from time to time as erosion and accretion occur26

o With land that is bounded by tidal waters, the owner owns the land up to the mean high-water mark, calculated by the highest and lowest high tides

o If the land contains non-tidal waters, the owner retains rights to the bed (the alveus)

o If the land is bounded by non-tidal waters, ownership of land confers rights up to the middle line

The doctrine of accession

Governs ownership of chattel that has been merged and rights of parties where it is no longer possible to separate chattels easily

Accession an exception where if a chattel is added to another person’s chattel, it passes to the second person if it is unable to be separated out of necessity

‘Property in an accessory does not pass unless the owner intended for it to pass’

‘The doctrine of intermixture applies where separate objects are mixed so as to become indistinguishable

QUESTIONS

3. Question 4 APL Q&A Ch 11 [11-18]

[Effort 25 min]

4. What result should a court reach in applying the Queensland legislation to the situation in Brand v Chris Building Society Ltd? Is the unjust enrichment approach preferable?

24 Gifford v Lord Yarborough (1828) 5 Bing 163.25 Hill v Lyne (1893) 14 LR (NSW) 449.26 Verrall v Nott (1939) 39 SR (NSW) 89.

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To understand the application of section 196 of the Property Law Act 1974 (QLD) to a case like Brand v Chris Building Society Ltd, one needs to understand the property law concepts behind these. The two concepts relevant is that of fixtures on land and people’s rights of said fixtures, and unjust enrichment. I will address each in turn.

Fixtures are essentially chattel or personal property which has been incorporated into the land so as to be deemed as ‘affixed’ and ‘unmovable’. It is argued that if a chattel has become a fixture, then it was intended to remain on that property. Therefore, whoever owns the property owns the fixtures. There are exceptions to this however, but they will be discussed later.

Originally, applying unjust enrichment to property law cases was unheard of. It wasn’t until Pavey & Matthews v Paul that it was discussed in relation to being applied to property rights. Here, judge Dean spoke about the benefit being provided and the monetary restitution to be considered in return for the benefit.27 Before this case however, and the cases that followed, came the case of Brand v Chris Building Society, in which judge Hudson rejected unjust enrichment due to there being no authorities which justified it.28 Therefore, in this case where the defendant had accidently built a structure on the land of the plaintiff instead of their client, they were told they could not recover the structure or the cost of it. It was argued that if a person mistakenly builds on the land of another, the fixture then is said to belong to the owner unless fraud can be proven on the part of the owner.

Today the case of Brand v Chris Building Society would be dealt with much differently. Not only is there now authoritative case law applying the concept of unjust enrichment, but legislation has been created which also specifically refers to this. The Property Law Act 1974 (QLD) s 196 states;

Where a person makes a lasting improvement on land owned by another in the genuine but mistaken belief that –

Such land is the person’s property; or

Such land is the property of a person on whose behalf the improvement is made or intended to be made;

Application may be made to the court for the relief under this division.29

Of course, this provision only says a claim of relief can be made to the court. It says nothing of the factors that may be considered. Angelopoulos v Sabatino covers the factors which come into consideration, stating unjust enrichment may be claimed depending on ‘the basis upon which the provider of the benefit acted, the choice which the recipient of the benefit had in deciding whether or not to accept the benefit and the conduct of the defendant.’30 The courts, as far as remedies go, has the power to vest in the applicant the whole or part of the land on which the improvement is made, the removal of the improvement, the payment of compensation to any person where appropriate and the delivery of possession of the land or improvement or part of.31

27 Pavey & Matthews v Paul (1986) 162 CLR 221, 263.28 Brand v Chris Building Society Pty Ltd [1957] VR 625.29 Property Law Act 1974 (QLD) s 196.30 Angelopoulos v Sabatino (1995) 65 SASR 1, 9-10.31 Property Law Act 1974 (QLD) ss 195-198.

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So as can be seen, Brand v Chris Building Society Ltd would have a different outcome today, with the legislation and cases now enabling unjust enrichment. The defendant would have been able to recover compensation or potentially the entire construct if the legislation was applied. This I think would have been a fairer outcome, than the strict harshness of the law as it was before the legislation was enacted. A person should not get the benefit of a fixture another has put time and effort into building; just because of the mistake of the location it was built.

TOPIC 3 – POSSESSION

NOTESDEFINITIONS

Possession Physical control over something and an intention to exclude othersjus tertii ‘The right of the third party’ which is superior to that of either plaintiff or

defendantBailee Person in possession of goods but not the ownerTorrens system A system of registration of title to land which makes it easier to find who is the

true ownerConveyance Process of transferring property from one owner to anotherEasement Right to cross or use another’s land for a specified purpose

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Grant v YYH Holdings Pty Ltd [2012] NSWCA 360

The appellants were sued by the respondent's for conversion and detinue for 16 sheep and any offspring and genetics of the sheep. The trial judge held that the cause of action had expired, but that the same was not the case for the offspring and genetics. The appellants argued that the statute involved (Limitation Act 1969) barred this order'The progeny have a separate existence. Although the respondent's ownership of them was derived from their title to the original 16 Awassi sheep, once the progeny were no longer in utero they were separate entites and the respondents had a separate title to them.' McColl JA

Jeffries v The Great Western Railway Co (1856) 5 El & Bl 802

The plaintiff sought an action of trover (conversion) for railway trucks he claimed to have obtained from Owen. The defendent claimed to have also obtained said trucks from Owen, but before the plaintiff had come into possession, due to Owen going bankrupt'I am of opinion that the law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him having no title in himself, is a wrongdoer, and cannot defend himself by shewing that there was title in some third person.' Lord Campbell CJ


cestui que trust The beneficiary of a trust

What is Possession?

Developed as a form of economic wealth during times when people where illiterate Possession and title used to be the same, however in modern society they are not Possession s a person’s entitlements to take action against another interfering with their

possession, unless the person interfering can show a superior right to possession

Possession of Goods

The legal test for possession of goods (which are the same for possessory title to land;

1. Actual physical control2. An intention to possess (animus possidendi)

A person in possession of goods has separation rights to that of the owner of the goods, or title holder. The owner out of possession has two rights;

1. ‘An immediate right to possession, which would arise where, for example, a bailment had come to an end, but the bailee still retained possession, or, where a finder had possession of a lost chattel’

2. ‘A right to future possession, as where a bailee held the chattel during the currency of the contractually agreed term of the bailment (during this time, the owner does not have a right to possession)’

Remedies are provided in tort for those who have proprietary interests in chattels:

Torts of negligence against reasonably foreseeable harm to it32

Intentional torts;o Trespass – a person in actual possession can sue in trespass without proof of

damage, but an owner not in actual possession cannot33

o Conversion – a person in actual possession or who had immediate right to possession who is denied power over the goods. It must be inconsistent with the rights of the owner34 and not just mere handling of the goods, but rather an intention to treat them as one’s own.35 The remedy for conversion is damages

o Detinue – person in actual possession or an immediate right to possession where the defendant has wrongfully retained the goods after a demand for them to be returned. The remedy for detinue is a return of the chattel, or its assessed value, plus damages for its detention

o Action on the case – an owner out of possession who has a right of future possession where the damage to the chattel is ‘special’ (enduring damage or the item is completely destroyed)

32 Mears v London and South Western Railway Co (1862) 11 CBNS 850.33 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, 225.34 Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258, 264.35 Kuwait Airways Corp v Iraqi Airways Co [2002] AC 883, 42-45.

16


A defence that can be used for a person in possession is jus tertii, or the right of a third person which is superior. This is only applicable if neither party is not in actual possession. Further, a person who does not succeed in jus tertii also has no defence against the true owner of the property.36

A contractual right to possession is not sufficient title to maintain detinue or conversion, especially in relation to immediate right to possession.

Sales of Goods Legislation exists to ‘enable a seller in possession of goods after sale to pass a good title to a third party acting I good faith and without notice of the previous sale (eg. Sale of Goods Act 1896 (Qld) s25).

Even wrongdoers have possessory rights – albeit limited – if the goods are wrongly taken from them. ‘Even a thief is entitled to the protection of the criminal law against the theft from him of that which he has himself stolen’37

Possession by Bailee

A person temporarily in actual possession who received goods from a bailor (owner) Bailee has a right to the goods as long as the terms of the contract or agreement allow.

Examples of agreements include;o Bailee has custody without reward or consideration (gratuitous bailment)o The bailor may have a specified term or may demand return of the goods (a

bailment at will)o A bailee who has taken possession without consent of owner (involuntary

bailee) A bailor and bailee who both have immediate right to possession due to goods baled at

will or a gratuitous bailment will both have a cause of action against a wrongdoer who interferes with the goods in the bailee’s possession38

An owner of chattel has a right of ‘recaption’ (the right of self-help to the recovery of their chattels)39 only if the possessor knew they had no right to the chattel40. They may also enter the land of the wrongdoer to recover the chattel41

36 Attenborough v London and St Katharine’s Dock Co (1873) 3 CPD 450, 454.37 Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437, 163-164.38 BIS Cleanaway t/a CHEP v Tatale [2007] NSWSC 378, 38-47.39 Blades v Higgs (1861) 10 CBNS 713.40 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101.41 Cox v Bath (1893) 14 LR (NSW) 263.

17


jus tertii can be claimed against a bailor by a bailee if a third party is seen as having better rights and title, and having vested authority in the defendant.42 It cannot be claimed if;

o ‘The defendant’s conduct has contributed to the plaintiff’s belief that its right to immediate possession exists; and

o The defendant does not act with the authority of the true owner’43

A bailee in breach of the terms of bailment may still have title to sue another unless the breach amounts to a disclaimer44

A bailee may have protections from the bailor if the bailee has immediate right to possession and has not defaulted on the bailment45

When a defendant has taken chattel which was not in the plaintiff’s actual possession at the time of the wrong, and where there is a chattel lease involved, the measure of damages are not the full cost of the chattel but compensatory for the true loss sustained46

If both a bailee and bailor have a right to sue, only one action will be successful. The second claim would not succeed and that person would need to look to the winning party for satisfaction.47

42 Biddle v Bond (1865) 6 B & S 225.43 Esanda Finance Corporation Ltd v Gibbons [1999] NSWSC 1094, 23.44 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400.45 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477.46 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185.47 O’Sullivan v Williams [1992] 3 All ER 385.

18

The Winkfield [1902] P 42

The ship 'Mexican' and the defendant ship 'The Winkfield, collided causing the Mexican ship to sink. The defendant's admitted liability, however the Postmaster-General as bailee wished to recover the sum of the letters and post that was lost, despite being a separate party to the incident'As between bailee and stranger possession gives title - that is, not a limited interest, but absolute and complete ownership, and he is entitled to receive back a complete equivalent for the whole loss or deterioration of the thing itself. As between bailor and bailee the real interests of each must be inquired into, and, as the bailee has to account for the thing bailed, so he must account for that which has become its equivalent and now represents it.' Collins MR

Armory v Delamirie (1722) 1 Strange 506

The plaintiff, a chimney sweeper's boy, found a jewel and took it to the defendant goldsmith, whose apprentice took it under a false pretence of weighing it. The apprentice removed the stones from the jewel and returned the now empty socket to the plaintiff.In trover against the master goldsmith these points were made; 1. The finder, although not having absolute property, has property over the jewel against all but the rightful owner. 2. The action is against the master, who is answerable for the neglect of his apprentice. 3. Unless the defendant produced the jewel, it was assumed the quality of the jewel was that of the finest worth, and as such the value of the finest jewels would be the measure of damages

Parker v British Airways Board [1982] QB 1004

The plaintiff found a gold bracelet on the floor of the airport. He handed it to one of the defendant staff members with his name and address, saying if the owner of the bracelet is not found to return the bracelet to him. Instead, the defendant company sold the bracelet, and the plaintiff sued for the amount it sold for plus interest. The defendant's claim the bracelet was their property as it was on their land'The defendants... claim must, on my view of the law, be based upon a manifest intention to exercise control over hte lounge and all things which might be in it... There was no evidence that they searched for such articles regularly or at all... There was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet' Donaldson LJ


Rights of finders

1. ‘The finder acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control

2. They acquire very limited rights over it if taken with dishonest intent or in the course of trespassing

3. A finder, while not acquiring any absolute property or ownership, acquires a right to keep it against all but the true owner, those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control

4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency takes the item on behalf of his employer or principal who acquires a finder’s rights to the exclusion of those of the actual finder

5. A person has an obligation to take reasonable measures to find the true owner of the item and to care for it meanwhile.’48

Rights of occupier

48 Parker v British Airways Board [1982] QB 1004.

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1. ‘An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attacked to that building, whether in either case the occupier is aware of the presence of the chattel

2. An occupier of a building has rights superior to those of a finder over chattels only if, before the chattels are found, he has manifested an intention to exercise control over the building and the things which may be upon it

3. An occupier with the intention to exercise control over the building is under an obligation to take reasonable measures to ensure that lost chattels are found and, upon them being found, whether by the occupier or a third party, to return them to the true owner and to care for it meanwhile. The intention to exercise control may be express or implied from the circumstances

4. An occupier of a chattel such as a ship, car or aircraft is to be treated as if they are the occupier of a building for the purposes of these rules’49

Chattel that is loose on an occupiers premises and which the occupier is unaware of is held to belong to the occupier even without their knowledge of it, unless a superior right is asserted by another.50

If a finder finds chattel, they only acquire complete possession over the original owner if the owner is shown to have renounced ownership of the item51

49 Ibid.50 Chairman, National Crime Authority v Flack (1998) 86 FCR 16.51 Cook v Saroukos (1989) 97 FLR 33, 41.

20

Limitation of Actions Act 1974 (QLD) s12.

12 Actions in cases of successive conversions and extinction of title of owners of converted goods

(1) Where a cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person and before the person recovers possession of the chattel a further conversion or wrongful detention takes place, an action shall not be brought in respect of the further conversion or detention after the expiration of 6 years from the accrual of the cause of action in respect of the original conversion or detention.

Some squatters (the defendants) entered a premises belonging but not in actual possession of the plaintiff. The plaintiff sought to have them removed. The defendants admit they have no defence, but ask for the court to give them four weeks to leave.'The court cannot give any time. It must, at the behest of the owner, make an order for recovery of possession. It is then for the owner to give such time as he things tight to the squatters. They must make their appeal to his goodwill and consideration, and not to the courts.' Lord Denning MR

McPhail v Persons

Unknown [1973] Ch

447


Possession of Land

Possessor has rights enforceable against world except people with superior title (eg. Someone with better documentary title or a period of prior possession)

‘A right to possession in a third party is relevant if it demonstrates that the claimant has none; but if the claimant has a right to possession (even though it springs merely from possession prior to ouster), a jus tertii (even in the true owner in fee) is irrelevant.’52

The modern action for recovery of possession stems from the action of ejectment, where the remedy to the possessor of land was ‘mesne profits’ (include such items as the rental value of the premises during the plaintiff’s ouster) in regards to damage caused by the intrusion. Where the owner does not require possession of the land, an action in trespass may be brought with the remedy of an injunction

Torrens system makes it easier to find the true owner, however a possessory title can be claimed over Torrens land to maintain an action in trespass53

Forcible re-entry allows a person dispossessed of their property to retake possession by force within reason (peaceful and easy manner) and within a specific time, as long as it abides by any legislation in force

A tenant cannot be forcibly removed without a court order given after notice to the tenant

52 Oxford Meat Co Pty Ltd v McDonald [1963] SR (NSW) 423, 427.53 Spark v Whale Three Minute Car Wash (Cremorne Junction) Pty Ltd (1970) 92 WN (NSW) 1087.

21

Civil Proceedings Act 2011 (QLD)

Affects squatters rights

Criminal Code Act 1899 (QLD)

278 Defence of possession of real property or vessel with claim of right

When a person is in peaceable possession of any land, structure, or vessel, with a claim of right, it is lawful for the person, and for any person lawfully assisting him or her or acting by his or her authority, to use such force as is reasonably necessary in order to defend the person’s possession, even against a person who is entitled by law to the possession of the property, provided that he or she does not do grievous bodily harm to such person.

Asher v Whitlock (1865) LR 1 QB 1

A cottage was built on a portion of waste land belonging to the lord of the manor. The cottage was originally built by Thomas, whose Widow and daughter were to inherit the cottage. The widow married the defendant, who came to live with her. Both her and the daughter passed away. The plaintiff's was the daughter's heir, and sought to eject the defendant.'If the lord has acquiesced and does not interfere, can it be at the mere will of any stranger to disturb the person in possession?... On the simple ground that possession is good title against all but the true owner, I think the plaintiffs entitled to succeed' Cockburn CJ

Perry v Clissold [1907] AC 73

The appellant was the Minister of Public Instruction in NSW and the respondents sought a mandamus (specific performance) for a valuation of land claimed by the Crown to build a school. No one knew the true owner of the land, however the respondent had taken possession of the land without title for many years and had fenced it. He claimed to be entitled to compensation'If the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations... his right is forever extinguished, and the possessory owner acquires an absolute title... The Act [allowing the Crown to take the land] throughout... has it apparently in contemplation that comepnsation would be payable to every person deprived of the land resumed for public purposes.' Lord MacNaghten

Mabo v Queensland (No 2) (1992) 175 CLR 1

'Possession is notoriously difficult to define but for the present purposes it may be said to be a conclusion of law defining the nature and status of a particular relationship of control by a person over land. Title is, in the present case, the abstract bundle of rights associated with that relationship of possession. Significantly, it is also used to describe the group of rights which result from possession but which survive its loss.' Toohey J


Limitations of Actions

Limitation of Actions Act 1974 (QLD)

Limitation for recovery of land is 12 years – s13 There can be no adverse possession against the Crown – s6(4) The accrual of time starts when a person other than the title owner takes possession –

s19(1)

Justification of having limitations of actions for possession are;

Certainty of title Putting an end to litigation

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Whittlesea City Council v Abbatangelo (2009) 259

ALR 56

Mrs Abbatangelo had been living on the land for many years with her family, tending to and maintaining the land. The council was the documentary owner of the land which the respondent's land enclosed.'All of the acts,when viewed in combination, were not the mere obtaining of a special benefit. They were sufficient to establish factual possession and an intention to exclusively possess.' Ashley and Redlich JJA and Kyrou AJA


Protecting those in possession from stale claims that, as a result of time, may be difficult to defend

Encouraging holders of documentary title not to sleep on their rights Facilitating a conveyance of land in the event the holder of title has disappeared, or

when, as a result of secret dealings, the documentary title no longer reflects an accurate state of the title

Facilitating the investigation of title to unregistered land (not as applicable under the Torrens system, however still relevant where owner has disappeared or dealings have been done off the register)

In many cases a person claiming adverse possessor is the true possessor of the land but lacks the documentary to prove it.

Adverse possession is criticized for going against human rights to property, and International instruments have been created to provide some protection from adverse possession, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms Protocol 1 art 1.

There is no legal requirement that a person in adverse possession believes they own the land. They can knowingly take adverse possession of another person’s land.54

It has been suggested that compensation be given to a document holder who’s time limit has passed to reclaim the land, depending on circumstances such as improvements made to the land, reason for not seeking to repossess, etc.

It is held that the rule concerning the accrual of the right of action to recover from adverse possession starts when the title owner is out of possession and some other person whose favour the period of limitation can run is in possession

A person in possession with the consent of the owner is not in adverse possession, but becomes so and the action accrues once the owner withdraws consent

If a person has no documentary title to possession, it must be shown, constituting factual possession, the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so55

54 Monash City Council v Melville (2000) V ConvR 54-621.55 Whittlesea City Council v Abbatangelo (2009) 259 ALR 56.

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An enclosure is the strongest possible evidence of adverse possession56, however all the facts are required to determine whether the requisite intention to possess has been established

The squatter does not need to necessarily show they want to exclude the documentary owner, but rather, they intend to possess the land to the exclusion of the world at large

Criminal trespass does not repeal the Limitation Act, and as such if the requisite time has elapsed then the person is entitled to the land

Adverse possession is prohibited for encroachments57, however, at the discretion of the court they can provide relief through;

o Transfer of the land over which an encroachment extendso Grant another interest or righto Or order removal of the encroachment

If an adverse possessor is only in possession of a part of the land, they may be able to establish possession of the entire land if they can show they were acting in a way that an occupying owner would be expected to act and that no one else has done so58

‘The holder of the future estate (heir) has the full limitation period from the date upon which the cause of action of the holder of the preceding estate accrues, or six years from the date upon the previous owner has died, whichever is the longer period’

The general rule for co-ownership is the time starts to accrue when one co-owner takes possession of more than their share of the land, rents or profits.59 If they have not taken more than their share, then it is said they have not create an adverse possession60

Limitation of actions in regards to equitable estates;

o ‘Where a right of action accrues to the holder of an equitable interest against the trustee… the trustee is entitled to claim the benefit of any statute of limitations to the same extent as if he or she had not been a trustee, except where they have been guilty of fraud or the action is to recover trust property in his or her possession’61

o ‘A cause of action accrues to the trustee against the cestui que trust. Where the beneficiary is absolutely entitled and is in possession to the exclusion of the trustee, the statute may run against the trustee.’

o ‘A right of action accrues to the holder of an equitable interest, or his or her, trustee, against a stranger who has taken possession of land subject to a trust. In this case the normal limitation periods generally apply.’

Successive adverse possessors

o If an adverse possessor assigns their interest in the land to another, then the successor can rely on the previous possessor’s period of possession.

o If a person, after a few years of adverse possession, then abandons the possession of the land, it will depend on the facts of the case whether the time

56 Seddon v Smith (1877) 36 LT 168.57 Land Title Act 1994 (QLD) s98.58 Powell v Mc Farlane (1979) 38 P & CR 452, 470-472.59 Limitation of Actions Act 1974 (QLD), s22.60 Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072.61 Limitation of Actions Act 1974 (QLD), ss 16, 27.

24


continues to run against the original owner dispossessed, though a mere break in possession is not enough

o If a person adversely possesses the land, and then is ousted by a second adverse possessor, then the periods of adverse possession are combined unless there is a gap between the two possessors, in which case the title is fully restored to the original owner. In regards to who then claims title after the limitation period is up;

‘It is necessary to know whether a succeeding trespasser is possession wrongfully against his predecessor, in which case his predecessor will retain a higher tight that the successor, or whether on the other hand, the succeeding trespasser has entered immediately following an abandonment by his predecessor.’62

Time stops when;

The person having the cause of action takes it or; The squatter admits the existence of superior title The person having the cause of action consents to the continual possession Merely recognizing the land belongs to another and cancelling a licence is not

acknowledgement of the original owner Assertion of title in a letter by the documentary title holder is also not sufficient in

stopping the clock

Extension of time;

Disability of person whom the cause of action has accrued63

Cases where the action is based on fraud, mistake or cause of action is fraudulently concealed by the defendant64

Any squatter who gains title of the land through adverse possession becomes bound by interests to which the land is subject, such as restrictive covenant, easement and profit a prendre.

QUESTIONS

6. Donald visited his local park for a stroll, as was his habit every Wednesday. The park contained a large lake in its centre where visitors were allowed to fish for carp which the local council that owned the park had introduced into the lake for that purpose as a recreation sport for visitors to the park. Donald threw a hand line into the lake in the hope of catching a carp. To his surprise, he actually captured a very interesting fish that was certainly not carp. Others fishing at the time gathered around to see Donald's catch. One shouted out 'that's a South American angel fish. It’s very rare and very expensive!' Just as Donald was putting the fish into his basket, Hillary, a senior park ranger who had witnessed what had happened said 'You are not

62 Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, 476-477.63 Limitation of Actions Act 1974 (QLD), s29.64 Ibid, s38.

25


allowed to keep that fish, it is the property of the council and unless you hand it over, you’re fined and that basket is confiscated.' Donald refused.

Advise Donald.

References:

Waverley Borough Council v Fletcher [1995] 4 All ER 756 (CA)

Parker v British Airways Board [1982] 1 QB 1004 (CA)

The Tubantia [1924] P 78

Young v Hitchens (1844) 6 QB 606

[Effort 25 min]

7. In 1979, Sunshine Shire Council acquired an angular parcel of land with a view to carrying out a road-widening project. It was envisaged by the Council that the project would not require commencement, nor would funds be available, for several years and as a result, the land was left largely vacant. The parcel of land adjoined Roderigo’s land and although the Council fenced the roadside boundary of the parcel, no fence was erected between the parcel belonging to the Council and Roderigo’s back garden. The only practical means of accessing the parcel was through Roderigo’s land. Roderigo maintained the parcel in various ways and treated it as if it were part of his garden. In 2003, Roderigo gifted his land to Amelia. Amelia knew that the parcel actually belonged to the Council but like Roderigo continued to maintain the parcel as if it were part of her land.

Advise the Council as to whether it can commence proceedings to recover the parcel of land. The Council has informed you that it now wishes to proceed with its earlier road-widening plans.

(See Laura-Leigh Cameron-Dow, Property Law LexisNexis Questions & Answers, Ch 10, ‘Possession and “Adverse” Possession, 3rd ed, 2017 Reed International Books Australia Pty Ltd trading as LexisNexis, Q3, [10.6])

Explain the implications of the Limitation of Actions Act 1974 (Qld) on the above scenario.

References:

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464

Limitation of Actions Act 1974 (Qld)

[Effort 40 min]

26


TOPIC 4 – TITLE TO PERSONAL PROPERTY

NOTESDEFINITIONS

Goods ‘All chattels personal other than things in action and money.Market Overt Open and public market or place appointed by law for sale of goods

Establishing Title to Goods

‘A person gets no better title than the transferor to that person had (nemo dat quod non habet)’

1. No one can give what they do not have, meaning you cannot transfer an interest that belongs to someone else. You also cannot transfer something on its own if other rights are bound to it (eg. If you are selling land with a tenant currently leasing it, the purchaser also takes on the lessee for the remainder of the lease)

2. A person should get what they pay for; a guarantee of registered titles (the principle of indefeasibility) and restricting priority of earlier interests (the priority rule)

The courts generally prefer to protect the rights of the true owner (Point 1) over the rights of the purchaser (point 2) however there are exceptions;

Where statutory exceptions apply Market overt The true owner only loses title if conduct amounts to breach of duty of care to the later

buyer, however the courts are hesitant to find such a duty

The derivation of goods is based on a chain of ownership, unlike land ownership which is usually registered

27Sales of Goods Act 1896 (QLD)

Sets out provisions to title of goods

Personal Property Securities Act 2009 (Cth)

Re Mackay, Associated Securities Ltd v Official Receiver in Bankruptcy

(1972 20 FLR 147

The applicant's seek to declare they are the owner of a car the bankrupt had sought buy. The respondant's oppose this, claiming the car is an asset in the bankrupt's (Neil MacKay) estate.'Whatever rights he [the bankrupt] had, the official reciever now has, no more and no less' White J

Farquharson Bros & Co v C King & Co [1902] AC

325

The plaintiffs found out a clerk they trusted had been selling small lots of their timber for years to the defendant. They sought restitution or compensation for timber, but the defendants refused.'The right of the true owner is not prejudiced or affected by his carelessness in losing the chattel, however gross it may have been' Lord MacNaghten

Lloyds & Scottish Finance Ltd v Williamson [1965] 1

WLR 404

The plaintiffs authorised Peeless to sell a motor car as principals and authorised them to do so. The defendant bought the car, however the plaintiff argues that Peerless was only agents and did not have the authority to act as they did.


QUESTIONS

8. The law which has evolved in relation to ‘title to goods’ pits two (2) policy objectives against each other: protecting ownership (nemo dat quod non habet) and protecting the security of transactions. With reference to case law and the Sale of Goods Act 1898 (Qld) and the Factors Act 1892 (Qld) critically discuss the law’s success in striking a balance between these policy objectives.

28

Sales of Goods Act 1896 (QLD)

Sets out provisions to title of goods

Personal Property Securities Act 2009 (Cth)


I like your answer Lawrence! It certainly highlights how property law prefers to protect the policy of nemo dat quod non habet over the security of the transaction. As was discussed in the tutorial on Wednesday night, this is different in regards to land, where the transaction is considered more important.

A case that I found really interesting which highlights how effectively legislation (specifically the Factors Act) protects the rights of the title owner is The Astley Industrial Trust Ltd v Miller [1968] All ER 36. Although this is an English case using different legislation, it is very similar to the Queensland Act and therefore I believe the case to be relevant. In this case, the plaintiff had a car which they had consented for the defendant to possess. The defendant's main business were as hire car operators, however on the side they also bought and sold cars, and had sold the plaintiff's car. The defendant's argued that because the plaintiff consented to them having the car, they were protected by the Act. The judges however, decided in favour of the plaintiff, holding that there is an unwritten assumption in the Act that the owner is consenting to handing the goods to a mercantile agent as a mercantile agent. If the owner does not have knowledge of the other business, or is handing their goods over for a purpose such as repair of goods, then they should not be held to have consented, otherwise any person who consents to handing over their property would be at risk of losing it if the person they hand it to has a side business.

Compare this to Lloyds & Scottish Finance Ltd v Williamson [1965] 1 WLR 404, where the courts held that because the plaintiff had expressly authorised Peeless to act as principals, the car that they sold to the defendant came with good title. The plaintiff tried to argue they were only agents and did not have the authority, but this was not proven on the facts and therefore the plaintiff did not succeed. This case shows how the second policy of protecting the security of transactions is enforced.

So this I think, is the perfect example of how legislation strikes a balance between the two objectives; protecting ownership versus protecting the security of transactions. The Factors Act 1892 (QLD) and the Sale of Goods Act 1898 (QLD) certainly seem to protect the security of transactions, but rarely at the expense of the original title holder when there has been any wrong doing. Even if there is carelessness on behalf of either party, as in Farquharson Bros & Co v C King & Co, it is decided in favour of the title owner. The courts are reluctant to rule that good title has in fact, passed to the final purchaser, however as I showed earlier, it does happen.

While in the tutorial for this week, during the breakout rooms when we discussed the questions, my group spoke about how it makes one a bit wary when buying goods as a consumer, especially with second hand stuff. Being an innocent and somewhat naive party, you may find yourself in court for an item that you may not have actually received title to. However, looking at it from the other side, why should the person who originally owned the item lose title, especially if they have acted in good faith and honestly? However, the concept of honesty is leading into the second tutorial topic for the week so I won't include it here.

Overall, the point I am trying to make and which I think you have demonstrated quite well Lawrence, is that the law protects the rights of the original title holder over the security of the

29


transactions, and I think this is for the best. There is still a balance, and the legislation and case law helps cover this.

9. ‘A person seeking to obtain title through any one of the exceptions to the nemo dat rule must show that the person has acted honestly and without notice of the conflicting interest. It has been consistently held that with respect to dealings in goods, honesty relates to the actual state of mind of the person in question. A clear difference is said to exist between dealings in goods and dealings in land.’

[See APL: 4.85 – Note 2]

Prepare an argument either supporting or contesting this statement for a non-legal audience.

[Effort 40 min]

TOPIC 5 – REGISTRATION SYSTEM FOR SECURITY INTEREST IN PERSONAL PROPERTY UNDER THE PPSA AND PPSR

NOTESDEFINITIONS

QUESTIONS

10. In relation to the PPSA, explain what is meant by ‘[T]he focus is clearly on function over form.’

Purple is my contribution , black is Tom.

The Personal Property Securities Act 2009 (Cth) is a practical statute outlining processes enabling the legal owner of property to obtain a registered security interest in the collateral. The PPSA introduces the Personal Property Securities Registrar. The PPSR is a public notice board developed as a single depository for recording and viewing security interests.

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The purpose of the PPSA is to provide transparency for businesses and consumers seeking registration of an asset and allowing clear disclosure of a registered security interest consequently creating a perfected interest. The focus of the PPSA is for the provider to obtain a security interest over the personal property. These rights are acquired by registering the financing statement.

The PPSA is a major reform and a significant piece of legislation. The PPSA is now the single source of law governing security interests in personal property and applies to all transactions that grant an interest in personal property to secure the payment or performance of an obligation, whether or not there is a security instrument in legal form, s 12(1) PPSA. This suggests a focus on the function of the security rather than the form it takes.

A case highlighting this shift in focus is Carey v Smith [2013] NZHC 2291, which at 90 explained that while a court cannot undermine a genuine document of transaction, the substance of performance is what more clearly defines a security interest. Another reason function is emphasised over form is because ‘of the different characteristics of personal property used as a security.’ (Warehouse Sales Pty Ltd (in liq) & Lewis and Templeton v LG Electronics Australia Pty Ltd & Ors [2014] VSC 644, 28)

Review of the Personal Property Securities Act 2009 – Final Report Section 1.1;

The Personal Property Securities Act 2009 (the Act) revolutionised the law and practice of secured transactions in Australia. It established an entirely new regime for the creation, legal effect and enforcement of security interests in personal property. In doing so, it replaced a number of complex and fragmented sets of rules with a single set of rules that apply to security interests in personal property.

The Act did not do this by simply standardising the rules for existing legal structures. Instead, the Act took an entirely new approach to secured transactions laws, based on principles that had been developed and implemented in a number of overseas jurisdictions, most notably in the United States, Canada and New Zealand. This approach largely ignores the form that parties choose for their transaction or even who has title to the property, and instead focuses on the transactions commercial substance to determine whether it should be treated as a security interest. This was a radical shift in approach for Australian law.

The Final Report illustrates the paradigm shift in Australian law towards substance and function to provide a single set of rules regardless of their form. The act ignores the form of the transaction but rather turns to the commercial substance to determine if it will be treated as a security interest.

A more detailed analysis on the shift from form to commercial substance can be found at section 2.1.2 of the Final Report.

Problem 11

Review the PPSR Business Guide and the case studies in the Guide.

See case studies uploaded to Moodle from PPSR

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https://www.ag.gov.au/Consultations/Documents/PPSReview/ReviewofthePersonalPropertySecuritiesAct2009FinalReport.pdf


TOPIC 6 – FRAGMENTATION OF PROPRIETARY INTERESTS IN LAND

NOTESDEFINITIONS

Doctrine of Tenure

‘Enables interests of land to be divided spatially, with different tenants having a range of entitlements tied to particular parcels of land’

Doctrine of Estates

‘Allowed a fragmentation of interests in land on a temporal basis’

Doctrine of Trusts ‘’separating beneficial ownership from strict legal entitlement'Determinable Limitation

a limitation that terminates an estate by the occurrence of an event specified in the grant

Condition Subsequent

‘where the grantor attaches a condition to the grant of the fee simple estate which will cause that estate to be cut short’

Fragmentation in a Spatial Dimension: The Doctrine of Tenure

Historically began because of the English feudal system Doctrine is where the tenant holds land for another subject to certain obligations This creation of tenures was known as subinfeudation Incidents were rights conferred on the lord over the tenant’s land or person that arose

in certain circumstances (eg. Death of a tenant resulting in wardship of the heir and escheat – passing land right to another, usually the tenant in demesne)

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Doctrine of Tenure became increasingly complicated resulting in statutes being passed to simplify it –

Quia Emptores (allowed people to alienate their interest in the whole or part of the mand without their lord’s consent -selling it without permission from the Crown – and prevented further subinfeudation)

Tenures Abolition Act (abolished knight service converting free tenure to socage tenures – agricultural service)

Influence on Australian Property Law

No person can technically own land as it belongs to the Crown Landlord-tenant relationship resembles early tenurial relationship Original doctrine of tenure operated until the Mabo Case obstructing recognition of

native title It is arguable that the doctrine has never fully eventuated in Australia as the

fundamental features – services and incidents – were never present in the same manner as England

Services only existed in the form of socage tenure and the incidents that were relevant to that, however the agricultural services changed to monetary payment represented in installments until the land was paid for, in which case it cannot be argued continuing services was rendered.

The incident of escheat only occurred in Australia where the tenant in fee was convicted of a serious crime or when they died and there was no next of kin. The Crown then takes back the land as it was considered originally theirs, creating the bona vacantia rule which is different to English tenure. The difference is that the Crown is seen as taking back what was originally theirs, rather than taking it back as a right due to the doctrine of tenure

The Doctrine of Estates

Foundation for the invention of the concept of future interests Estate means ‘the fullest set of rights of enjoyment of land: namely, the right of

possession’

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The Crown (own all lands)

Tenant-in-chief (recieved designated land from crown, granted it to Mesne Lord and owe services to Crown)

Mesne Lord (granted land to tenant and owe services to tenant-in-chief)

Tenant in demesne (only rights to actual possession of land and owed services to Mesne Lord)

Freeholds

Fee Simple: greatest interest in land recognised by law. Allows all rights of ownership except where those rights are varied by statute or by the owner or a predecessor in title (Gumana v Northern Territory (2007) 153 FCR 349, 83). The estate continues indefinitely regardless of heirs. May be freely disposed of inter vivos or by will. If owner does before making a will, assets are sold and distributed to next of kin.

Fee Tail: created by De Donis Conditionalibus 1285 statute. Similar to fee simple, but more restricted as it was only passed down a certain lineage. Grantor could then ensure it stayed in the family and was passed to particular people (tail male, tail female, tail special - particular wife). Fee tail abolished in Queensland.

Life Estate: Created when interest in land is granted to a person for life and terminated at death (therefore did not pass on like fee simple). It could however, be passed to another person while the life estate person was still alive; pur autre vie (ie. the rights of the second holder terminates when the first holder dies). Statutory provisions today allow pur autre vie to be disposed and life estate may be passed on to the next of kin upon death.

Leaseholds

Lease Fixed for a Term of Years: lease fixed for a period that expires automatically at the end of the period. Despite years, the lease could be for any amount of time (days, months, etc).

A Periodic Tenancy: Does not terminate until appropriate notice is given. May be given on an agreed period of time and the notice will vary accordingly.

A Tenancy at Will: may be determined any time by either party subject to a 'packing-up' period (Landale v Menzies (1909) 9 CLR 89). A tenancy may be created when the holder of the fee simple allows another to take exlusive possession of the land wihout any agreement as to duration or payment of rent.

A Tenancy at Sufferance: arises where a tenant takes possession of land lawfully pursuant to a lease, but continues wrongfully in possession after termination of the lease. Landlord may institute proceedings for recovery of possession of land from the tenant, but cannot maintain an action for trespass until objection is made, since the tenant's initial entry on the land was lawful.


Estate in fee is ‘the maximum interest which a subject could have in the land’65

Estates are classified as corporeal hereditaments (physical possession of the land) while lesser interests are incorporeal hereditaments (rights over the land)

Granted interests in rights to a person in present possession as well as another person to have rights in the future, which each set of rights being separate and able to be disposed of separately

Ownership of the estate entitled the person to possession at some point, but not necessarily immediately

Types of estates; Fee simple – in theory, could last forever Life estate – entitles possession to the individual for their lifetime Fee tail Leasehold interests

Estates can be passed on to another, but only accrue when the previous estates have ended (eg man gives wife life estate and son fee simple, when he dies, fee simple goes to son but does not accrue until wife’s life estate has passed)

Estates are classified in two ways; Freehold (fee simple, fee tail and life estate) are measured in lives Less than freehold (leasehold – personal contracts between landlord and tenant)

are measured for a certain period and are protected by the action of ejectment

65 Mabo v Queensland (No 2) (1992) 175 CLR 1, 80.

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At common law, rules for conveyancing are strict and technical, meaning if a mistake in made with the wording of an estate to be granted, the intention would not succeed

Technical words used to define the estate conferred are known as words of limitation Words designating the person upon whom the estate is conferred is called words of

purchase Fee simple limitation words;

Inter vivos – ‘to A and his heirs’. No other words would suffice to create fee simple estate. Heirs did not receive interest in the land as this is not words of purchase, but words of limitation, defining the estate of A.

By will – establishing the testator’s intention. Fee tail limitation words;

Inter vivos – vital in establishing the grantor’s intention to limit the estate to lineal descendants. Words used were ‘to A and the heirs’ (words of limitation) and ‘of his body’ (words of procreation). Could be further limited by restricting it to a class of descendants (ie sex or specific wife and children)

By will – enough if the language shows the intentions to devise interest. Life estate limitation words;

Inter vivos – created by any words showing intention to do so as a limitation ‘to A for life’. Also created by default where a grantor failed in attempt to create fee simple or fee tail because of incorrect words of limitation

By will – created life estate in the beneficiary unless a clear intention to pass a fee simple of fee tail is evident.

Australian Statute has altered the inter vivos presumption of life estate and instead presumes the grantor is intending to dispose of whole interest unless there is contrary intention. Further, fee tail can no longer be created, and any attempt will lead to fee simple. Life estates are only created when there is a clear intention to do so.

Reforms for dispositions at will are more lenient and assume intention without words of limitation would pass the entire estate unless contrary to intention.

Limits may be put on estates, known as determinable limitation (termination on an event) or condition subsequent (condition that will cut the estate short)

Determinable limitation must only be a possible event and not one that will eventually occur at some time (such as death) especially as fee simples are intended to last forever. Once the event occurs, the estate reverts back to the grantor.

If a condition subsequent is breached, the granter has right to re-enter the land. If they do not exercise this right, the estate continues, but if they do, then the estate ends.

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Reason why a void condition allows the primary gift to remain valid but a void terminable limitation causes the gift to fail completely is the latter is seen to be so intertwined with the estate that it cannot be severed.

‘it is necessary in each case to construe the instrument creating the proprietary interest in question to determine into which category the interest falls’66

A condition cannot be met by substantial compliance – all parts of the condition must be met, not just majority or certain parts67

Reform suggests removing the distinction and all conditions attached should be conditional interests only on basis that it would be closer to the grantor’s intention that the gift would be effective without the condition rather than it failing entirely

Equitable Interests in Land

QUESTIONS

11."Until the decision by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 it had always been understood that Australian land law was fixed firmly in the feudal mold comprised of the doctrine of

66 Caboche & Bond v Ramsay (1993) 119 ALR 215, 227.67 Hyde v Holland [2003] NSWSC 733.

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Zapletal v Wright [1957] Tas SR 211

Plaintiff and defendant were living together and jointly owned the land, though the defendant bought the land without contribution of the plaintiff. The plaintiff is trying to claim her half, while the defendant argues it was subject to a condition subsequent that should the couple separate her interest in the land ceases. The condition was considered void as it was thought immoral that she should have to stay with the defendant to retain her right over the property'The form of the condition is such that it did not demote the extent of the estate but only to event in which the larger estate conferred may have been cut short' - Crisp J'a condition subsequent void on a ground of illegality or because it is contra bonos mores may be ignored leaving the primary gift good but a terminable limitation void for the same reasons fails entirely'


tenures and estates. This 'understanding' has now been questioned and to a certain degree redefined. The reappearance of the feudal notion in Mabo exposes an opportunity to contemplate how an historical attitude towards the law in fact shapes its contemporary unfolding. (M Stuckey, 'Feudalism and Australian Land Laws: A Shadowy Ghostlike Survival?', University of Tasmania Law Review 13, 1994, 102-15)"

Purple is my contribution , black is Tom.

Feudalism is best described as a system of government resulting in a hierarchy of power, with the Crown at the top and all tiers below in service to the Crown. Feudal land law, known as the “Doctrine of Tenures and Estates” descends from British law establishing the ultimate title of land is held by the Crown with layers of possession and authority passed down to land holders (known as tenants-in-chief, mesne lords and tenants in demesne, who only has rights to actual possession and did not actually ‘own’ the land) who can provide a benefit to the crown. Ancient feudal law implied a landholder was authorised to exercise power over their land and dispossessed workers. Hence the controversy that has emanated when feudal law was introduced, colonising Australia.

The early case of Attorney-General v Brown (1847) 1 Legge 312 fleshed out the differences between possession, occupation and political control with the understanding political control should not equate to possession of occupation.

In Milirrpum v Nabalco Pty Ltd 39 Blackburn J understood feudal principles to support:

“the principle, fundamental to the English law of real property, that the Crown is the source of title to all land; that no subject can own land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown. On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the colony became the property of the Crown. All titles, rights, and interests whatever in land which existed thereafter in feudal law: a system so universally received throughout Europe, upwards of twelve centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations in our western world.’

The introduction of feudal law into Australia wasn’t as straightforward as simply bringing the doctrines over as they existed in England. They had to be implemented in a way that was appropriate to the new colony. Hence, the complications with the doctrine of tenure which had begun to be recognised and fixed through the Quia Emptores and Tenures Abolition Act was seen to immediately apply and simplify the doctrine in Australia. In Australia the concept of the Crown owning all land remained, and the landlord-tenant relationship did resemble that of the original tenurial relationship, however services and incidents that were so integrated in the system were not applied in Australia. Services originally only existed as socage tenure (agricultural services) and this was soon replaced with monetary payment. The incident of escheat was the only incident relevant to Australia and differed to that of England. The difference was where the Crown in Australia took back what was originally theirs when a tenant died, in England it was viewed as a right to take it back rather than simply a result of the death.

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The doctrine of estate also differed. Fee tail (like fee simple but restricted by requiring the estate to be passed down a certain lineage) was abolished in majority of states. Statute was introduced as well which altered the presumption that life estate would result from a failed grant of estate, preferring the presumption that a fee simple would be granted unless contrary intention could be shown. The law did away with the strictness of the limitation words and words of purchase, preferring to be more lenient. So as can be seen, the doctrines of tenure and estates, while having been inherited from England feudal law, applied differently in the newer land of Australia.

The biggest issue with the doctrines of tenure and estate was it obstructed the recognition of the Aboriginal and Torres Strait Islander people of Australia and their native title. It wasn’t until the High Court case of Mabo v Queensland that Australia’s land law and feudal origins were fleshed out. The term Terra Nullius was overturned and the introduction of the Native Title Act (1993) provided the legal framework for native title claims for indigenous Australians by recognition of native title through indigenous laws and customs. Judge Brennan explained that if the indigenous rights of law are recognised, then the Crown cannot be held to have sole title of the land they have colonised (51) (or arguably, the land they have conquered).

Since Mabo, there has been many discussions in relation to how the history of land tenure has defined the contemporary views of native title. In Western Australia v Ward, it was explained that the doctrine of estates allowed ‘property law to change as required by contemporary circumstances.’ (815) Further, as discussed earlier, the doctrines have been modified by legislation to better apply to the modern requirements of Australia. It certainly makes one think about what further changes may occur to better align the interests of the natives and the settlers.

12." Do the reforms proposed by the Victorian Law Reform Commission in its 2010 report to conditional and determinable fees effectively address the problem of void conditions?"

Collaborated on with Kayla Clenton

In 2010, The Victorian Law Reform Commission (VLRC) did a report that analysed and suggested changes to the concepts of conditional and determinable fees. Before diving into whether the law reform effectively addressed the problem of void conditions, first it is important to understand the difference between the two types of limitations on fee simples.

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Simply put, a conditional fee, or condition subsequent, is a condition which cuts an estate which has been conferred short. On the other hand, a determinable fee, or determinable limitation, is where an event must occur before the estate is transferred back to the grantor. Both seem similar in nature; however, each have different consequences should they be met. In the former, a breach of the condition means the grantor has a right to possession which they may choose to exercise. However, until they do, the person in breach still holds fee simple. On the other hand, if a determinable limitation event occurs, then the estate automatically is returned to the grantor. Either way, it is important to work out via the instrument creating the interest whether a limitation is a condition or determinable fee.68

Regarding void conditions and determinable fees, the distinction between the two leads to vastly different outcomes. If a condition is void then it may be cut out, leaving the original estate intact. If a terminable fee is void, then the whole estate fails entirely as it is considered being so entangled with the fee simple that it cannot be severed.69 Therefore, it has always been essential that courts can determine the difference between these two seemingly similar concepts.

As can be expected, there is some criticisms regarding the confusion of the two concepts. This is where the VLRC stepped in. They acknowledged the similarities between determinable fees and conditional fees.70 It was proposed that a provision was enacted to remove the distinction between the two estates.71 The grantors intention was recognised to closer reflect that if the gift was void it would be effective without the condition as an alternative of failing entirely. Consequently, in an attempt to better reflect this intention, the proposal was to eliminate the distinction between determinable fees and conditional fees and provide that all modified fees give rise to a conditional fee only.72 Consideration was placed upon the consequences which would transpire if during the drafting of grants, the two estates were confused.73 An additional argument presented by the VLRC in favouring conditional fees was related to the positive right of re-entry, allowing the termination of a prior interest to be exercised by a defined person.74 Below is a section of the VLRC report highlighting their reasoning for the change;

1.58 First, determinable fees would no longer fail due to the invalidity of the determining event. Secondly, if all modified fees are deemed to be conditional fees, the need for a trust or Settled Title Land Act mechanism to enforce the succession becomes unnecessary. Conditional fees, unlike determinable fees, have the right of re-entry which is a clear mechanism for termination and succession. The right of re-entry on the happening of the conditional event is a positive right which can be exercised by a defined person to terminate the prior interest.75

68 Caboche & Bond v Ramsay (1993) 119 ALR 215, 227.69 Zapletal v Wright [1957] Tas SR 211.70 Victorian Law Reform Commission, Review of Property Law Act 1958, Final Report No 20 (2010) 71.71 Ibid.72 Sackville & Neave, Australian Property Law (LexisNexis Butterworths, 10th ed, 2016).73 Victorian Law Reform Commission, Review of Property Law Act 1958, Final Report No 20 (2010) 71.74 Ibid.75 Ibid.

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As pointed out earlier, the distinction of the two are important due to the outcomes. However, if the outcome is the same, then a distinction is not necessary. It certainly seems to simplify the law regarding necessary actions taken if a breach occurs. Further, societies views change over time, so while there may have once been a need for a distinction, it may no longer be required. Therefore, depriving a person of all rights is not considered the modern standard.76 In conclusion, the 2010 report of the VLRC effectively addressed the problem of void conditions.

TOPIC 7 – STATE LAND IN QLD AND NATIVE TITLE

NOTESDEFINITIONS

QUESTIONS

76 Andrews v Parker {1973] Qd R 93.

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13.‘If the international law notion that inhabited land may be classified as terra nullius no longer commands general support, the doctrines of the common law which depend on the notion that native peoples may be "so low in the scale of social organisation" that it is "idle to impute to such people some shadow of the rights known to our law"…in Re Southern Rhodesia (1919) AC, at pp 233-234 can hardly be retained.’

(Mabo v Queensland (No 2) (1992) 175 CLR 1 High Court of Australia, per Brennan J.)

Critically discuss 25 years post Mabo (No 2)

Notes - Tom

3/06/17 marks 25 years since Mabo (no.2) Early indigenous customs and laws were too simplistic to coincide with the British

legal system, the indigenous way of life was not recognised by the British. Prior to Mabo the manipulation of common law made slight adjustments to the

recognition of native land rights however the establishment of the NTA, descending from the Mabo case provided a foundation of hope strengthening the recognition of native customs and created avenues to develop native title rights.

Do native title rights to land and waterways strengthen the position of indigenous Australians to the point they are exempt from coexisting state law applicable to European descendants. For example, selected marine life may be hunted by native indigenous Australians and protected under statue for European descendants? Food for thought….

There is a fine balance between economic viability and native title rights and depending on the circumstances rights may be extinguished.

Notes - Tylah Interesting about how Native Title is not part of the common law, but is recognised

by it. However this is a change people are fighting for (eg. Uluru statement of the heart)

Naming of Uluru: ‘The rock was called Uluru a long time before Europeans arrived in Australia. The word is a proper noun from the Pitjantjatjara language and doesn’t have an English translation. In 1873, the explorer William Gosse became the first non-Aboriginal person to see Uluru. He named it Ayers Rock after Sir Henry Ayers, the Chief Secretary of South Australia at the time. Ayers Rock was the most widely used name until 1993, when the rock was officially renamed Ayers Rock / Uluru – the first feature in the Northern Territory to be given dual names. In 2002 these names were reversed at the request of the Regional Tourism Association in Alice Springs and the rock took on the official name of Uluru / Ayers Rock, which it still has today.’ - https://parksaustralia.gov.au/uluru/about/ayers-rock-or-uluru/

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https://parksaustralia.gov.au/uluru/about/ayers-rock-or-uluru/


Notes - Damon

Although this was a significant case towards establishing The Native Title Act, there is still a number of questions still arising even today. In particular with respect to leases stopping a claim over native title.

Wik Peoples v Queensland (1996) - lease did not grant exclusive possession and native title was active.

Ward v Western Australia (2002) - mining leases do not extinguish native title.

14.Q2 PL Q&A 5-9.

'Samuel is part of the Jagadju people who made a native title claim over an area in Queensland in 1996.

The claim covers the following:

Freehold interest over a farm and acreage, held by the Baxter family;

99 year crown pastoral lease granted to the Baxter family. The conditions of the lease include: non-intensive sheep grazing, the right to build on the leasehold area and the right to exclude unauthorised persons, only after permission to do so is granted by the Crown;

The township of Succotash comprising:

-wetlands and a park;

-police station built in 1958;

-school built in 1976;

-a total of 162 assorted houses, all on freehold blocks, including Candice and Jimmy's house in town.

The Jagadju people are spread out throughout Succotash and the surrounding areas, although some have moved, and work and live in the Metro City, about 180 km south of Bunda Mountain. The clan meets twice a year to celebrate family, culture and hunt kangaroos. However, the local elders are upset that some of the younger generation living in Metro City are disinterested in their Aboriginal heritage and fail to attend the clan gatherings.

Advise the Jagadju people whether their native title claim over the township of Bunda Mountain is likely to succeed.

NB Assume all grants were made between 1980 and 1992.'

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[Effort 40 min]

TOPIC 8 – ACQUISITION OF PROPERTY RIGHTS

NOTESDEFINITIONS

QUESTIONS

TOPIC 9 – EQUITABLE PROPERTY AND EQUITABLE DOCTRINES

NOTESDEFINITIONS

QUESTIONS

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