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Week 8 Acquisition of Property Rights - Coggle Diagram

- - - - In a trust relationship the trustee is obliged by legal rules to deal with the trust property for the benefit of other person (the beneficiaries) or for a particular purpose. The law recognises a strong fiduciary relationship berween the trustee and the beneficiaries).
      - A trust, simply put, separates the ownership of something and the benefit that flows from that thing (eg profit)
      - trustee “owns” the legal interest of the property, necessary for them to perform their duties, which are to maintain and protect the property for the beneficiary, who own the beneficial interest or equitable interest.
  - - - • Pre-contract stage
      - • Contract stage
      - • Settlement stage
  - - - 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302
        
        respondent executed an agreement to a lease, which was expressed to be 'executed as a deed', and returned to the appellants for execution, however before the appellants excuted the respondents withdrew. It was determined that until all the parties were bound the deed was no considered 'delivered' and thereby not binding.
      - In Roma Pty Ltd v Adams [2012] QCA 347
        
        execution of a deed by one party was intended to constitute delivery and was therefor binding even though it was not physically delivered to the other party
      - Wright v Madden [1992] 1 Qd R 343
        
        auctioneer has the authority to sign a memorandum on behalf of the vendor or the purchaser, but this can only be exercised as part of the sale transaction and not at a later time
      - Manton v Parabolic Pty Ltd (1985) 2 NSWLR 361 NSW Supreme Court
        
        even though a document says sign sealed and delivered it will not be considered to be a dded if there is not sufficient indication that is was intended to be a deed, or it does not comply with the substantive requirements to be a deed.
        
        deed must be signed by a witness not party to the agreement / deed
    - - 10 Assurances of land to be in writing
    - - s 181 Interest in a lot not transferred or created until registration
        
        relates to the Torrens title land registration of the relevant document passes legal title
  - - - McBride v Sandland (1918) 25 CLR 69 APL 4.42C: APL 11th ed 4.38C
        
        Since McBride Australian courts have adopted a more restrictive approach to the doctrine of part performance
        
        see also
        
        Waltons stores Extract mentoioned in APL 4.45 & **Pipikos v Trayans [2018] HCA 39: APL 11th ed 4.40C
        
        Oglvie v Ryan [1976] 2 NSWLR 504 APL 4.44, 4.48; APL 11th ed 4.98 & 4.98C.
        
        McMahon v Ambrose [1987] VR 817
        
        McBride (an early decision of the HCA) Isaacs and Rich JJ listed the elements of part performance necessary for equity’s intervention
        
        see text page 273 for the 7 elements
      - Pipikos v Trayans [2018] HCA 39: APL 11th ed 4.40C
      - Maddison v Alderson (1883) 8 App Cas 476 APL 11th ed 4.35.
    - - equity views this transaction as effective to create a mortgage
        
        Russel v Russel (1783) 1 Bro CC269
        
        Theodore v Mistford (2005) 219 ALR 296
        
        deposit of title documents would constitute part performance of an oral agreement to grant a mortgage even if the deposit were made by a third party
        
        contract to sell land, payment of the purchase price and making imporvements; Pejovic v Malinic (1959) 60 SR (NSW) 184
        
        contract to sell land; taking possession of the land - Regent v Millett (1976) 133 CLR 689
        
        lease; improvements to the property by the lessor at the request of the lessee - Rawlinson v Ames [1925] Ch 96
        
        mere payment of purchase money is insufficent - Britain v Rossiter (1879) 11 QBD 123
        
        making of an application for planning permission - New Hart Builders Ltd v Brindley [1975] Ch 342
      - Land Title Act 1994 (Qld) s 75
  - - - Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712
        
        This case applied the principle in Lysaght v Edwards (see below) that a specifically enforceable contract for sale of land confers on the purchaser an equitable interest in the land. However, this is only applicable where the contract is enforceable and there is no bar to award of equitable remedies for the purchaser.
        
        The right to an unpaid vendor’s lien in equity, referred to in Bunny Industries has been abolished in Queensland
        
        Land Title Act 1994 (Qld)
        
        s 191
      - Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 HCA
        questioned rule in Lysaght
        
        Tanwar had to establish that it was against conscience for the vendors to set up termination of contract
        
        The failure by Tanwar to avail itself of the advantages it obtained by negotiating the 2001 Deeds and by keeping the contracts on foot had the effect of exposing Tanwar again to the exercise by the vendors of their rights to terminate the contracts…Equity does not intervene to prevent the effective exercise of those rights. The claim by Tanwar for relief against the consequences of the failure in the timely provision of the second mortgage does not succeed.’
      - Equitable conversion is based on the notion that equity deems done that which ought to be done. ( the rule/principle from
        
        Lysaght v Edwards (1876) 2 Ch D 499
    - - Lysaght v Edwards (1876) 2 Ch D 499
        
        There is now a recognition of the Rule in Lysaght v Edwards. It supports the principles that equity deems to be done what ought to be done.
        
        a vendor in possession of land after the contract of sale is obliged to take reasonable care of the property
        
        further cases that support this
        
        Clarke v Ramuz [1891] 2 QB 456
        
        Egmont v Smith (1877) 6 Ch D 469
        
        vendor retains equitable lien over the land until the purchase price is paid see also Re Hamilton-Snowball's Conveyance [1959] Ch 308
      - Property Law Act 1974 (Qld) ss 58, 63-64
        
        now supports the decision in Lysaght
        
        requires the insurer of buildings damaged by fire on the request of any person interested to lay out the money towards rebuilding, reinstating or repairing s 58
    - - Walsh v Lonsdale (1882) 21 Ch D 9 APL 4.68C APL 11th ed 4.61
      - Chan v Cresdon Pty Ltd (1989) 89 ALR 522 High Court of Australia APL 4.70
        
        discussed the distinction between equitable and legal leases and the implications of the PLA (Qld).
      - An enforceable agreement to transfer a property right will be enforced by equity despite requirements for enforcement at law not having been met
    - - where an equitable interest comes into existence the former rights contained in the legal title is fractured
      - A person solely entitled to the full beneficial ownership of money or property, both at law and in equity, does not enjoy an equitable interest in that property. The legal title carries with it all the rights. Unless and until there is a separation of the legal and equitable estates, there is no separate equitable title.
  - - - 2 propositions emerge from the Turner LJ in Milroy v Lord as follows:
        
        The donor must have done everything necessary to be done, in relation to the particular property so that the transfer and the gift are binding; and
        
        If the gift was intended to be given effect to by one method the court will not use another method to give effect to it.