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Requirements of form - Coggle Diagram
Requirements of form
assignment in equity arise when:
Legal property cannot/failed to be assigned at law
e.g. not an absolute debt or you have not been given notice under s 199
TUTORIAL: A failed assignment at law can be affected at equity if the donor has done everything necessary to be done by them alone, although something may remain to be done.
e.g. registration is not done - this can be saved in equity and done by anyone other than the donor.
Need to look at where the transfer is analogise to:
Milroy Test
;
Corin v Patton
- Where is the transfer - is it in the possession or the donee or the donor. In this case the title deed of the property was held by the bank which was needed for the property to be registered. Mr P did not procure the title deed for registration upon her death. SHE HAD NOT DONE ALL THAT WAS NECESSARY BY HER TO EFFECT THE TRANSFER - if the brother had the title deed and the transfer then he could have done the registration
e.g. if the only thing left is to give notice - then anyone can give notice to the debtor that they need to pay
Public Trustee v Ban
- application of the Milroy test which established the donor had not done everything required to perfect the gift in equity - look at notes
Future property only be assigned in equity if there has been valuable consideration.
Consideration passed - if it has then you do not need formalities
equitable property - assignment of equitable present property: just need an intention to assign which is will be effective if there is an intention to assign
assignment at law formalities
Look at the type of property that is being assigned
Torrens title land - real estate
s 181 - s 182 PLA
- transfer of real estate at law is effective on registration of the transfer (registration of transfer in the titles office)
Choses in possession e.g. tangible items
Can be transferred by gift or by sale - to transfer a gift you need to deliver the items with the intention to give or sign a deed of gift
Cockaren v Moore
Choses in action e.g. intangible items e.g. right to sue, debt
s 199 PLA
Intention to assign
Property sufficiently described
Assignment absolute (has to be the entire debt) e.g. if only 1/2 of a debt then debt will fail and you need to go to transfer in equity. (not by a way of a charge - cannot be held as a right to retransfer)
Assignment in writing signed by assignor
Written notice to debtor, trustee
Priority Disputes
When there is more than one purposed assignment of the debt, how do you work out who gets the actual property?
Dearle v Hall
- Rule for determining competing priorities
If the later assignee gives value
and they have no notice of the earlier assignment
1 more item...
RULE: Need to be the bona fide purchaser for value in equity without notice, then you need to give notice to have a legal title as well , and you need to be the first person to give notice
Dearle v Hall
Requirements is only for direct transfer of property