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©MNoonan2009 Commercial Transactions Module 1 Personal Property Winter16
©MNoonan2009 This presentation and Copyright therein is the property of Maureen Noonan and is prepared for the benefit of students enrolled in the Commercial Transactions course conducted by the Law Extension Committee and is available for their individual study. Any other use or reproduction, including reproduction by those students for sale without consent is prohibited.
©MNoonan2009 Introduction It is expected of students in this course, that they remember what they have learned in Contracts and Torts and be aware of equitable as well as legal interests and remedies. Students are encouraged to follow commercial news, to note reports, matters and cases relevant to our course and to discuss them in class in order to consolidate theoretical knowledge. They are also welcome to share any relevant experience with the class. Much of the law we deal with in this course involves matters we either come across in life ourselves, or see happen to others on a daily basis. In several modules of our course, we are dealing with relatively new laws. e.g. Australian Consumer Law, and Personal Property Securities Act. In both of these cases, text and reference books (and old exam questions) may be out of date.
©MNoonan2009 Personal Property In this module, we discuss the most common types of personal property, the subject of commercial transactions We then go on to consider some ways of acquiring or divesting an interest in personal property other than by purchase/sale, and the applicable law.
©MNoonan2009 What is property? Something we can own, have certain rights in relation to. What is personal property? Every type of property that is not real property. Choses in possession Tangibles-an object with a physical form which can be possessed. Examples: Cars, boats, machines, phones, computers, toys, clothes, furniture, linen, minerals, food, manufactured items Choses in action Intangibles-rights-personal property that can only be claimed or enforced by action, not by taking possession. Legal –enforceable in common law jurisdiction Statutory Licences, Interests in Intellectual Property, Right to sue in debt, Rights as a shareholder, Negotiable Instruments, Insurance. Equitable-enforceable in equity and not common law jurisdiction Interest in a partnership, Rights to Legacy under a Will, Interest in a Trust Estate.
©MNoonan2009 Choses in possession/tangibles Even in the realm of physical things, new challenges arise all the time. Consider the issues raised in: Does the despoiler of water have a proprietary right in the commingled product? Implications for Property Law and Criminal Procedure Monash University Law Review Vol 38, No 3 p35. Who would have thought anyone would be interested in waste water?
©MNoonan2009 Choses in action While it is relatively easy for students to comprehend scenarios regarding physical items, some have more trouble with intangibles. We consider briefly, a few of these to make sure that students would identify them in a particular situation and be able to comprehend legal issues surrounding them.
©MNoonan2009 Licences important to commerce Valuable rights. Some traded. Some personal. Mining rights-precious metals, iron ore,oil, etc. To use software To use IP- copyright, trademarks-e.g. franchises To take a natural commodity-fish, water To drive a taxi. Note the disruptive entrance of UBER To conduct a particular occupation or business To use territorial airspace To use privileges via treaties and legislation
©MNoonan2009 Intellectual Property in Commerce
©MNoonan2009 What is confidential information? Relevant to drafting a suitable definition in an agreement. It can include: Financial, technical, strategic or business information Trade secrets, know-how, process and techniques Business and marketing plans and projections Software or computer records, client or supplier lists Details of agreements or arrangements with third parties Lists of contractors, employees of company or agents Designs, plans drawings and models Any other info that is confidential to that company. E.g. consider the type of info that a CEO might acquire in course of their job.
©MNoonan2009 How can a commercial entity protect confidential information? Mixture of legal and practical steps Conduct information audit…limit access of critical confidential information (practical) and include provisions in employment contracts or separate confidentiality agreements (legal) Create confidential information policy and cover aspects such as use of and ownership of contacts. Include social media contacts?
©MNoonan2009 Misuse of Confidential Information - Woolworths Ltd v. Olson 63 IPR 258 Woolworths were able to effectively protect themselves against misuse of confidential information by a director. Olson, a Director was involved in a project to streamline the supply chain. The project had already cost $1b, and the information concerning it was sensitive. Olson signed a confidentiality agreement. He was also secretly negotiating with a competitor to take up employment with them. When he received an offer, he sent two emails containing several confidential project documents to his wife’s e-mail address. Woolworths discovered the emails, obtained an Anton Piller order and removed Olson’s wife’s computer before the emails were opened. The court found Sending the documents to his wife’s account (a third party) was a breach of his employment contract. By sending the emails a reproduction of the documents had been made on Olson’s server (which was capable of further reproduction when the sent emails were downloaded or deleted). Olson had infringed copyright even though the emails were never opened.
©MNoonan2009 Difficulties if time goes by Contrast the speed with which Woolworths was able to act with the litigation between Optiver Australia Pty Ltd and Tibra Trading P/L 2006-? Optiver, a high frequency trading operation claimed former employees took software and confidential information with them when they set up their own operation in competition with Optiver. Optiver claimed damages etc under s. 115 Copyright Act….amounting to $hundreds of millions.
©MNoonan2009 Consultants An English case of Force India formula One Team Ltd v. 1 Malaysia Racing Team SDNBHD & ORS, italian aerodynamics company Aerolab was ordered to pay €25,000to Force India for misues of confidential information relating to the design of a half size wind tunnel model of a Formula 1 racing car. In 2010 Aerolab was retained by the Team Lotus Formula 1 team soon after having already undertaken similar work for Force India and used information gathered during Force India’s works….copied some computer files…enabled them to take short cuts by providing a more advanced model from which to build…but did not lead to total replication of Force India designs. In the absence of enforceable restrictive covenant, an employer cannot prevent an employee/consultant from using information which forms part of his own skill, knowledge and experience, even if confidential and learned during employment but is entitled to protection of confidentiality in respect of information that might otherwise amount to a trade secret. Measure of damages is that which would otherwise have been negotiated between willing licensor and willing licensee acting reasonably as at date of breach for permission to use the confidential information….here, time and cost Aerolab would otherwise have had to expend to design and draw the relevant Lotus parts had they not misused the confidential information.
©MNoonan2009 Added value Note that in both the previous cases, the value of the software ….the confidential information misused….was in saving time to achieve the first step and not exact copying of an identical result. There can be significant difficulties in valuing that contribution and therefore assessing damage.
©MNoonan2009 Taken from the news ---SMH Nov 8,2010 NSW Supreme court proceedings commenced. Internet executives suing rock band INXS for $2.8m, claiming that they pitched a concept to band and manager- a website that promoted big brands and allowed them to download songs, ringtones and video music clips. Just as they were about to sign a sponsorship agreement with Telstra, manager pulled plug on project only to create a “substantially similar” site. Claim is that business plan was confidential and INXS stole it and used it without their permission. Band deny it was confidential.
©MNoonan2009 COPYRIGHT Defined in Copyright Act to be personal property Distinguish a work that is subject to copyright and the copyright in that work. Re Dickens: Dickens v. Hawksley (1935) Ch 267. Dickens left all of his private papers (which included a manuscript written for his family’s use and unpublished at his death) to his sister-in-law and everything else to his children. It was held that the manuscript belonged to the sister-in-law and the copyright in it belonged to his children.
©MNoonan2009 Copyright does not protect ideas; only the expression of that idea in physical form. Donoghue v. Allied Newspapers Ltd (1938) 1 Ch 106 The plaintiff claimed copyright in a number of articles written by a journalist to whom he had recounted his experiences. He failed. Held that the plaintiff gave an idea for a story. The story was the creation of the journalist and the journalist was entitled to the copyright in the finished article.
©MNoonan2009 Copyright can be transferred by assignment, by will and by devolution due to the operation of the law. Assignment to be effective must be in writing and signed by or on behalf of the assignor. S. 196 Copyright Act. A licence is not an assignment; merely a right to copy-that which would otherwise be a breach of copyright.
©MNoonan2009 We are interested in the commercial aspects of Intellectual Property in this course. How does one assign/sell copyright? Licence it? COPYRIGHT ACT 1968- SECT 196 Assignments and licences in respect of copyright (1) Copyright is personal property and, subject to this section, is transmissible by assignment, by will and by devolution by operation of law. (2) An assignment of copyright may be limited in any way, including any one or more of the following ways:…... (3) An assignment of copyright (whether total or partial) does not have effect unless it is in writing signed by or on behalf of the assignor. (4) A licence granted in respect of a copyright by the owner of the copyright binds every successor in title to the interest in the copyright of the grantor of the licence to the same extent as the licence was binding on the grantor.
©MNoonan2009 Seven Network (Operations) Limited v Media Entertainment and Arts Alliance  FCA 637 (21 May 2004) The Federal Court found that Media Entertainment and Arts Alliance (MEAA) infringed copyright when it used an internal phone directory from Seven Network (Operation) Ltd (Seven) as the basis for polling Seven's employees on a proposed enterprise agreement. The directory was marked by MEAA for individuals potentially affected by the proposed agreement and given to a call centre, ACTU Member Connect (Connect), for it to make a database of individuals to poll. Gyles J held that Seven owned copyright in the compilation of the directory and MEAA's annotation of the directory was a reproduction of the directory in material form. Seven was granted an injunction to restrain further use and additional damages of $10,000 pursuant to s115(4) of the Copyright Act were also awarded against MEAA -the infringement was done in secret, and enabled Connect to conduct polling quicker and more efficiently than otherwise possible. In respect of Connect, Gyles J held that the creation of a database using the annotated directory to obtain names, telephone numbers, position and location of persons, which could be reproduced in hard copy, was also an infringement of copyright. Seven was granted an injunction to restrain further use by Connect of the directory. His Honour also ordered Connect to pay Seven $2,500 on account of profits for the money it was paid for the polling.
©MNoonan2009 Note the difficulties in protecting copyright on the Internet Richard Prince, artist composes blown up photos taken from his Instagram feed…entire career built on appropriation…takes advantage of “fair use” exception…testing limits of copyright…overlaying photos/work on the work of others…divorcing recognizable images from their context
©MNoonan2009 TRADE MARKS ACT 1995 21. Nature of registered trade mark as property A registered trade mark is personal property. Equities in respect of a registered trade mark may be enforced in the same way as equities in respect of any other personal property. ******Note the need in Australia for Distinctiveness for creation and Use of the mark by the registered owner in relation to particular classes of goods and services in order to retain which affects the nature of this form of personal property and what happens on assignment, licensing and death
©MNoonan2009 TRADE MARK VALUE in SPORTING ENTERPRISES The days of football surviving on membership fees and ticket sales are gone. The 2002 financial report for Australian Rugby Union Limited reported that of total revenue of over $62m, only about $11.5m came from gate takings and match fees (19%). Broadcasting fees, sponsorships and corporate hospitality accounted for 74%.Underpinning the latter is the ability to market names, logos, images and concepts. While concepts such as Mateship and fair play can be exploited commercially, they are not exclusive to a particular company or team. Trade Marks and other intellectual property can be exclusive, valuable and readily exploited. Note the use of the trade mark on the Sydney Harbour Bridge during the Rugby World Cup. Merchandising using these marks is increasingly sophisticated. The All Blacks have been aggressive in protecting and enforcing their intellectual property recently. They have applied to register the name and fern leaf logo as a trade mark in a great many countries and for a large range of goods and services. For example, the latest applications in Australia even cover purses, handbags, aprons and walking sticks.
©MNoonan2009 Patents and software Software can be Copyrighted. However, if the software represents a new process, it may also able to be Patented. At present the Samsung-Apple patent cases (at least 21) are displaying the complexities of this reality, and the importance of it to many businesses. If Apple win, for example, it is relevant to all of us using pay TV and video, as it may prevent others from providing certain services, without their permission and under licence. In our Federal Court, Samsung allege in the Federal Court that the iPhone and iPad infringe 7 patents related to wireless communication standards. Note also the successful action in the US by our CSIRO relating to wifi.
©MNoonan2009 The Franchise Consider the role of IP Manuals-copyright licensing, packaging Branding-trademark use for marketing, utensils, packaging Confidential information-business know how Patents?-genetically engineered foodstuffs Designs-utensils, giveaways.
©MNoonan2009 THE LINK BETWEEN THE TANGIBLE AND INTANGIBLE BIOTECHNOLOGY and BODY PARTS Who owns your Body tissue? When you have your appendix out, who owns it? If it is used for medical research that ultimately results in a patented commercially profitable product, should you have royalty rights? Who owns a patented cell line? In a case in the California in 1990 a man with leukemia was persuaded to give up his spleen. The surgeon used blood samples and material to develop a patented cell line; making substantial profits. The patient sued in conversion. In a 4/3 decision in 1990 the Californian court decided against the patient on the basis that the patented cell line was both factually and legally distinct from the cells from the patient's body. If you have good genes, can you market them for cloning? Who owns frozen embryos? Are they a commodity? Do you have a right to sell your body parts for profit?
©MNoonan2009 Genes and Patents A court case commenced in the Federal Court Australia June 8, 2010 to test the legality of an Australian patent for a breast and ovarian cancer gene owned by an American biotechnology company and two international research organisations. There have been calls by researchers, doctors and healthcare interests to stop gene patents because it is an impediment to research and makes treatments costly due to licence fees. In a NY case brought by the American Civil Liberties Union against Myriad Genetics, the US patent for the same gene has been invalidated and an Australian Senate inquiry has inquired into gene patents. Discovery instead of invention? 400 gene patents in Australia. Ethical and philosophical questions-can you privatise the human body-whose property is it? Particularly important for targeted or customised treatments- coming soon-control over your own treatment?
©MNoonan2009 The story of Wormitage Estate December, 2005 Waleed Raghdo, a teacher at Altona North Primary School in Melbourne has been at the forefront of the school environmental program and started the school’s worm factory. 200,000 worms work their way through lunch scraps. Carnivorous plants devour flies that hang around the worm factories. The liquid fertiliser obtained was cleverly packaged in recycled red wine bottles, fitted with donated recycled corks and labelled-Pengold Grange Wormitage, complete with details of the vintage. The brew was a hit. It is sold to local nurseries $4 wholesale and $8 retail a bottle, and at school fetes. It raises about $3,000 a year for the school. When Fosters, the owner of Southcorp Wines (owner of Penfolds Grange Hermitage) heard about it, it threatened legal action for breach of copyright. The last Grange Hermitage vintage from the 2000 crop retailed for $495 a bottle and a record $50,200 was paid for the experimental 1951 vintage. The school capitulated and renamed its brew-Wormitage Estate. Southcorp is donating a 1988 bottle of Grange for the school to auction. Why did Southcorp threaten action for breach of Copyright and not Trademark?
©MNoonan2009 Interest in a partnership A summary of the nature of this type of personal property is contained in a HC tax case Commissioner of State Taxation v. Cyril Henschke Pty Ltd HCA 4. Doris Henschke surrendered her one sixth share in a wine making partnership in SA. The HC adopted with approval the statement of Windeyer J in Biolton v. FC of T ALR481,485 that the right with respect to partnership assets is generally regarded as equitable and is “a fractional interest in a surplus of assets over any liabilities on a winding up and in the future profits of the partnership business…” So, value can only finally be ascertained on a winding up…but can be estimated and agreed prior to that.
©MNoonan2009 What is the difference between “property in X” and “title to X” Most of the time no practical difference and used interchangeably. But, in some literature and legal references, property is used to refer to rightful ownership (and the associated rights) and title is broader and covers situations in which a third party may prevail over the true owner for legal reasons and become entitled to some personal property. We consider situations like this in Modules 3 and 11.
©MNoonan2009 PERSONAL PROPERTY DISTINGUISH POSSESSION CONTROL WHY NOT FINAL? ENCOURAGE FORCEFUL ACQUISITION AND OWNERSHIP ENTITLEMENT RIGHT TO CLAIM IT FROM SOMEONE ELSE USUALLY SUPERIOR TO POSSESSION
©MNoonan2009 Possession Elements 1.Exclusive control over the chattel. Plus 2.Intention to exclude others from exercise of control.
©MNoonan2009 Contrast Possession with Ownership “Ownership” of personal property involves more than possession- –the right to possession, –to use, to use up, –to alter, –to hire out, –to grant a security, –to gift, or sell.
©MNoonan2009 Ways of acquiring Ownership Possession Finders Keepers ProductionPurchase See later modules Gift Inter vivos, or in Contemplation of death Will or Inheritance BarterAccessionConfusion
©MNoonan2009 Law of Finders Cases are main source of law Supplemented by Statute…e.g. as to what Police must do with items handed over to them by finders.
©MNoonan2009 FINDERS KEEPERS ENTITLED AGAINST ALL EXCEPT SOMEONE WITH BETTER TITLE WHO FOUND IT?WHAT DID THEY FIND? - OWNER OF LAND?- LOOSE CHATTEL? - OCCUPIER?- FIXED ITEM? - TRESPASSER - VISITOR? WHERE DID THEY FIND IT?ANYONE WITH BETTER TITLE? - ON THE LAND?- TRUE OWNER? - EMBEDDED IN THE LAND?- OWNER/OCCUPIER? - STATUTORY ENTITLEMENT?
©MNoonan2009 Larceny by finding What is it? An old common law criminal offence which applies in NSW. If at the time a finder finds property, they believe that by taking reasonable steps they can find the owner, but appropriate it instead, they commit larceny by finding. BUT, if at that time they do not believe that by taking reasonable steps they can find the owner, they do not commit larceny.
©MNoonan2009 Taken from the news June 2, 2005 SMH Found: $250,000 Queue here. “ When a rainbow leads you to a pot of gold take it to the police or face 5 years behind bars for the crime of larceny by finding-because in NSW finders are not always keepers.” (23 year old bank employee who claimed he found $250,000 on an inner city street, but did not report it. A colleague saw some in a bag under his desk and the rest later found in a safe deposit box). (Subsequently charged with, and pleaded guilty to larceny by finding.) What is larceny by finding? Here finder should have reported it to police, received receipt and could have received it back if it went unclaimed. Acting director of University of Sydney Institute of Criminology Mark Findlay said: “Its an old law and it doesn’t necessarily recognise the complexity of modern life-it..relates better to villages where everyone knows each other than to big cities”. Police may think it looks suspicious as it is unusual for people to carry about large sums like this and lose it without reporting it….. Might be money from a bank robbery lost in the getaway, drug money, lost, etc and taking action gives them the opportunity to check it, and the “finder” out. i.e. evidence or proceeds of crime. Note the difference if the money had been clearly abandoned by true owner.
©MNoonan2009 Also taken from the news Herald Sun 9/5/2014 Chamindu Amarsinghe was a cleaner tidying toilets in Melbourne, in August 2011 when he found a sanitary bin flush with money. “There was too much to count…”He called his supervisor. Police and a plumber pulled more than $100,000 from the Bourke St bathroom….$1,200 in the pipes. Police were never able to establish the origin or that it was proceeds of crime and no one came forward to claim it. Magistrate Michael Smith ordered $81,597 go to the honest Mr. Amarsinghe and the rest to the state.
©MNoonan2009 LOST PROPERTY (REMEMBER TO DISTINGUISH BETWEEN LOST AND ABANDONED PROPERTY) LOCATION PROPERTY GENERAL RULE EXCEPTION CASES In /attached to Land True owner has best title None Ranger v. Giffin Owner of land has better title than finder On land True owner has best title Someone with prior Finder has better title possessory rights?..... than owner of land Landowner exercised Parker such manifest control Munday over the land as to Flack indicate an intention Tamworth to control the land and anything found on it.
©MNoonan2009 Note the effect of Statute on historic finds From the Sunday Telegraph 27/9/ 2009 Fight on for Saxon Gold Row has erupted over who will share fortune in Anglo-Saxon treasure found in a field in Britain Note effect of Statute….becomes Crown Property even though found by individual with metal detector and private land. Compensation payable under this particular statute. Similar provisions in Australia.
©MNoonan2009 Items found in or attached to land RANGER V. GIFFIN 1. MRS RANGER SOLD HER HOUSE TO MR. AND MRS. SCHINDLER. 2. WHO CONTRACTED MACGREGOR & GIFFIN TO BUILD AN EXTENSION. 3. TWO EMPLOYEES FOUND A BISCUIT TIN FULL OF MONEY. WHO WAS ENTITLED TO THE MONEY? NOONE ELSE CLAIMED OWNERSHIP. NOT A LOOSE CHATTEL. BURIED IN THE GROUND IN A PLACE NOT NORMALLY ACCESSIBLE. MRS. RANGER?CLAIMED THAT SHE HID THE MONEY, FORGET IT AND LEFT. JUDGE DID NOT BELIEVE HER.
©MNoonan2009 Items found in or attached to land RANGER V. GIFFIN CONT. SCHINDLERS?OWNERS IN FEE SIMPLE. GENERALLY ENTITLED TO EVERYTHING ATTACHED TO OR UNDER THAT LAND. MACGREGOR & GIFFIN? NEVER IN POSSESSION OF PREMISES OR TIN. CONTRACT ENTITLED THEM TO DEBRIS, BUT TIN OF MONEY NOT DEBRIS. EMPLOYEES?QUINN DID NOT FIND THE MONEY. GIFFIN & QUINN? GIFFIN FOUND IT BUT HIS RIGHTS FLOW TO HIM FROM HIS EMPLOYER BECAUSE HE HAD NO INDEPENDENT RIGHT TO BE ON THE LAND.
©MNoonan2009 Items found in or attached to land Example: A leased land to B for 99 years. While excavating, B found a prehistoric boat 6 feet below surface. A claimed the boat and was successful. Immaterial that he had not been aware of it’s existence Elwes v. Brigg Gas Co (1886) 33 Ch D 562 Note the effect of modern statutes on finding items such as this
©MNoonan2009 Items found in or attached to land Example: P water company owned land with a pool and employed D to clean it. While doing so, workman found 2 gold rings in mud at bottom of pool. HELD: P as owner of land containing the pool entitled to rings. South Staffordshire Water Co v. Sharman (1896) 2 QB 44
©MNoonan2009 Items found in or attached to land Example: While using a metal detector in a public park owned by P local authority, D became aware of object. He dug 9 inches down and found a valuable medieval gold brooch. Court held that local authority as owner or lawful possessor of land had better title to object found than finder. Right of public to engage in recreational pursuits in park did not include digging and removal of property (acts of trespass). Waverley Borough Council v. Fletcher (1996) QB 334 NOTE: Relevance of rights granted, signs, terms of dedication, statutes affecting.
©MNoonan2009 City of London Corporation v Appleyard 1 WLR 982 Property leased by City of London to Yorkwin Investments Ltd. Yorkwin hired Wates Ltd for demolition/construction. They found a safe in a cellar and bank notes within the safe. Who was entitled to them? Safe formed part of the building and so occupier normally entitled, but lease from City of London contained a clause giving them the right to any valuable objects, so City of London entitled and not finder Wates, or occupier Yorkwin.
©MNoonan2009 Items found ON the land PARKER V. BRITISH AIRWAYS BOARD MR. PARKER WAS AIRLINE PASSENGER. FOUND A GOLD BRACELET. HANDED IT TO BA LOUNGE EMPLOYEE. PLEASE RETURN IF OWNER DOES NOT CLAIM. OWNER NEVER DID. BOARD SOLD IT AND DID NOT GIVE IT TO MR. PARKER HE SUED AND WON. BA LOUNGE APPEALED. WHO WAS ENTITLED TO THE BRACELET? NEITHER IS OWNER. PARKER CLAIMS “FINDERS KEEPERS” AT COMMON LAW BA LOUNGE CLAIMS UNDER COMMON LAW AS OCCUPIER OF LAND AND ENTITLED TO ALL LOST CHATTELS ON THE LAND
©MNoonan2009 Items found ON the land PARKER V. BRITISH AIRWAYS BOARD CONT. 1.PARKER NOT A TRESPASSER. 2.PARKER WAS FINDER. 3.PRIMA FACIE FINDER NOT DISPLACED IN FAVOUR OF EMPLOYER. BA OCCUPIER OF LOUNGE. ITEM WAS LOOSE, NOT BURIED IN OR ATTACHED TO LAND. BECAUSE OF THIS, BA MUST HAVE MANIFEST INTENTION TO EXERCISE CONTROL OVER THE LOUNGE AND ALL THINGS IN IT. CONTROLLED ENTRY AND USE, BUT NO MANIFEST INTENTION. NO EVIDENCE THEY SEARCHED FOR LOST ITEMS. SOME DISCUSSION OF WHAT IT TAKES TO SHOW MANIFEST INTENTION. SOMETIMES IT SPEAKS FOR ITSELF. E.G. BANK SAFETY DEPOSIT ROOM.
©MNoonan2009 Hibbert v. McKiernan  2 KB 142 Golf club with well built fences to make sure any lost ball could be found. Trespasser found a golden ball. Landowner manifested intention to control any lost things on his land and prevailed over trespasser finder.
©MNoonan2009 Abandoned goods and rights of finders LEONARD GEORGE MUNDAY V. AUSTRALIAN CAPITAL TERRITORY (1998) SC ACT 62 NO. SC 320 OF 1998. PUBLIC RUBBISH DUMP. TIP FACE AND REVOLVE DEPOT. RIGHT OF PUBLIC TO HAVE ACCESS TO TIP FACE. TERRITORY CLAIMED ALL PROPERTY BELONGED TO IT. EXCLUSIVE SALVAGE RIGHT TO REVOLVE. MR. MUNDAY SALVAGED FROM TIP FACE AND SOLICITED DUMPERS FOR THEIR GOODS. MR. MUNDAY SOUGHT INJUNCTION TO PREVENT INTERFERENCE TO HIS SALVAGE/RECYCLING EFFORTS.
©MNoonan2009 Munday (2) IS RUBBISH ABANDONED GOODS? FEE TO ENTER RELEVANT? WHAT ARE THE TERMS OF THE LICENCE? EFFECT OF SIGN ASSERTING EXCLUSIVE SALVAGE RIGHTS? EFFECT OF SIGN ASSERTING ALL DEPOSITED MATERIAL PROPERTY OF TERRITORY? Decision: ACT may REGULATE ENTRY AND EXCLUDE LAWFULLY GRANT EXCLUSIVE LICENCE TO REVOLVE ASSERT CONTROL OVER GOODS DEPOSITED BUT CANNOT ASSERT CONTROL OVER GOODS PRE-DEPOSIT SO MR MUNDAY CAN SOLICIT GOODS PRE DEPOSIT.
©MNoonan2009 Abandoned and found? A gift? Nemo dat? See example Pearson 2 nd ed p 94 George was hiking across Broadacres; an outback rural Queensland property, when he saw an old tractor lying in a disused shed. George was an agricultural machinery collector and immediately recognised the value of the tractor as an antique. He inspected it and thought that with a lot of care and work he could restore it to its former glory. He contacted the lessee of Broadacres, Russell, who said he could take the tractor as he did not want it. George said he would have it towed off the land in a week. Before that, an arsonist torched the shed in which it was housed and the tractor was destroyed. Russell wanted to lodge an insurance claim with his equipment insurer covering the loss of the tractor. George had taken out an endorsement to his insurance policy covering “all goods the Insured owned or has actual or constructive possession of at the time of loss” with a specific notation of this particular tractor.
©MNoonan2009 Manifest intention to exercise control TAMWORTH INDUSTRIES LTD V. ATTORNEY-GENERAL (1993) 3 NZLR 616 A property next to that of a Mr. Dods was leased by its owner to Tamworth, a company controlled by Mr. Dods. He lived on his own property. No fences or other physical means of separation existed between the two. On the land leased by Tamworth were a series of derelict buildings. During a police raid, money was found in bas under the floorboards. Mr. Dods was charged with possession and supply of cannabis. He denied all knowledge of the cannabis and money and defended the charges by amongst other things, demonstrating that he did not have sufficient control over the property on which they were found. He then sought to assert that the money should be his as it was found on land of which he was the occupier. To do so, he had to demonstrate that he had a manifest intention to exercise control over it. Court found no evidence of boundary, security. The situation did not speak for itself as the fenced suburban block might or the bank vault mentioned in Parker.
©MNoonan2009 THE CASE OF THE GREY METAL FILING CABINET Back in the 1970s, we had double digit inflation. Eva, was concerned how she would continue to fund her long life. With her husband dead and children gone, she passed the time watching television, feeding her cats and filling her house with more and more junk from the auction sales of deceased estates in her town. She bought everything; whether it be genuine antique cedar furniture or old filing cabinets for the cats to sleep in. One day she heard about the internet at a Senior Citizens luncheon, bought a computer, went on line and started to trade. She dealt with bearer stocks and bonds and had an account set up via a letter box company in the British Virgin Islands after hearing about it on CNN. After more than 20 years and feeling unwell, she asked her agent to send her all the share and bond certificates. Not knowing what to do with them, she put them in one of the old filing cabinets, locked it and decided to sort them out later. She died before she ever did. The heirs of her will were her grand-children Sam, Sally and George. Horrified at the conditions in which she lived when they came to clean up, they emptied the house; dividing the cedar antiques between them, taking 4 truckloads of things to St. Vincent de Paul. The rubbish (including the old smelly filing cabinets with cats still living inside) was taken to the banks of a creek and dumped. The owner of the property near the creek was furious when he saw all this rubbish on his land and pushed over one of the filing cabinets. It burst open and exposed-$7,549,000 worth of bearer stock and bond certificates. News leaked out and the story was on the evening news..Sam, Sally and George have claimed the securities. Who is likely to get them?
©MNoonan2009 FINDERS KEEPERS From news.com.au April 27, 2002 Families feud over buried treasure A $19,000 treasure trove sparked a feud between 2 Perth families. When gardener Cliff Anderson dug a hole for a rosebush in a suburban Girrawheen backyard, he uncovered what one family claims as their dead mother’s secret horde. However, property owners Eunice and Joseph Borges are claiming “finders keepers”. Former owners of the house, the Konior family, told the paper their widowed Russian migrant mother Anna hid the money as a nest egg against hard times. When Mrs Konior died suddenly from an aneurism in 1997 without revealing the exact location of the stash, frantic searches with metal detectors unearthed around $6,000.The house was sold and proceeds shared among the 3 children. But now Adela 56, Lee 51 and Trudi 50 are considering civil action to recover what they say is family property. Criminal proceedings for theft were dropped.
©MNoonan2009 Taken from the news August 30,2007 On 24 August, 2007, Seven Network ran a story about AFL players who had had drug treatment. They did not name the players, but named the club. Seven reportedly bought the records for $3,000 from a source who claimed to have found them in the gutter outside a medical clinic. After seizing documents, police arrested a man and a woman and charged them with “larceny by finding”. “There would be an ethical issue if we had knowingly bought stolen documents….it is yet to be established whether the documents were stolen or not.” Who do the records belong to? Were they abandoned? Who does the information in those records belong to? See also later module on electronic commerce and data management
©MNoonan2009 Finding /Lost Property Statutes If a person finds goods and hands them into the Police, there is generally a Statute which provides that if the true owner is not found within a specified time, that the goods be returned to the finder (unless they are proceeds of crime etc) Care should be taken to obtain a receipt and preferably to have a witness. Otherwise, one could end up in the situation described in Edwards v. Police (2004) SASC 419. Mr.& Mrs Irwin found a purse with $660 inside, handed it in, true owner came forward, money missing but Irwins had no receipt for purse and money. Police officer charged and convicted, but it could have ended badly for the Irwins.
©MNoonan2009 GIFTS By far the least problematic way (legally speaking) to make a valid gift is by a Deed of Gift. If there is no Deed, we must rely on the common law to work out from the evidence whether there has been a valid gift or not.
©MNoonan2009 DEED OF GIFT This DEED OF GIFT is made the 9th day of November 2015. BETWEEN Martin Murray of 56 Rockleaf Drive, Rozelle NSW(Donor) AND Jayne Adams of 18 Arima Street, Annandale NSW (Donee) NOW THIS DEED WITNESSETH: The Donor is the owner of the property specified in the Schedule and hereby assigns to the donee absolutely all of the Donor’s title and interest in the property in the Schedule. IN WITNESS WHEREOF the Donor has duly executed this deed on the above date. SIGNED SEALED AND DELIVERED by the said Donor in the presence of ……………………………………….. …………………….
©MNoonan2009 Requirements for a valid Deed At common law Written State on its fact it is a deed..e.g. This Deed…executed as a deed Convey some privilege or thing…hereby…by these presents Grantor must have legal ability to grant the thing or privilege and the grantee must have legal capacity to recive Delivered by grantor and accepted by grantee See s. 38 Conveyancing Act 1919 (NSW)for statutory requirements Signed and sealed Attested by at least one witness not a party to the Deed. See other states for any specific requirements in that State. Note that there is a longer limitation period for deeds…12 years in NSW
©MNoonan2009 (1) GIFT INTER VIVOS A gift made during one’s lifetime. CONDITIONS FOR EFFECTIVE GIFT inter vivos Donative intent Delivery. Acceptance (2) DONATIO MORTIS CAUSA A gift made in contemplation of death and intended to come into effect on death. CONDITIONS FOR EFFECTIVE donatio mortis causa Donative intent Delivery Acceptance Death of donor Survival of donee There are 2 types of gift that we will consider
©MNoonan2009 GIFT INTER VIVOS In re Cole, a Bankrupt (1964) 1 Ch 175 Mr. Cole took his wife to his house. Showed her the furniture “It’s all yours” Mr. Cole was made bankrupt.Trustee sued Sufficient Delivery? Enough to bring donee to gift? Change of possession? Actual v. constructive delivery?Difference between gift and trust. Law will not invoke to cure a defect. Note policy considerations re bankrupt FINDING OF THE COURT OF APPEAL Gift never perfected by delivery
©MNoonan2009 RIGNEY V. GORDON & GORDON (1996) SADC 3531 and the dangers of vague arrangements with charitable gift giving. In anticipation of retirement, the Gordons went to live in Renmark in 1989. They bought houseboats named “Buralga” and “Dupree” hoping that they would provide security retirement. However, hire of houseboats for vacations on the Murray declined after 1992. Mrs Rigney was of aboriginal descent. She had for some years been employed as co-ordinator of the Gerry Mason Senior Memorial Centre; which sought to improve the lot of aboriginal people in the Riverland. The parties became friendly. The Gordons were interested in making some contribution to the advancement of the local aboriginal community, but did not know how to go about that. As their friendship increased with Mrs Rigney, she claims that they made a gift of the Dupree to her personally. This was supported by a form which was completed and forwarded to the Manager Ship Survey Department of Marine and Harbours showing a change in “new owners name”.There was also evidence from the plaintiff that after signing the form Mrs Gordon had said “Well, we’ve just given our boat away”.
©MNoonan2009 RIGNEY v. GORDON & GORDON(2) The Gordons argued that they had not given their boat away. They had merely meant Mrs Rigney to be a manager pending their finding a suitable way to give it to an aboriginal organisation having aims that would achieve the ends that they had in mind but had been frustrated in their objective because Mrs. Rigney had not introduced them to persons who could receive their gift on behalf of the aboriginal people in Riverland. In the light of this and other evidence, the court had no trouble deciding that there had been a gift to Mrs. Rigney personally. It found intention proven. It was satisfied the Gordons had become progressively more impressed by Mrs Rigney and her ability to turn her hopes into reality as a business; thereby leading to increased employment in that business for aboriginal persons. It found that they changed their minds about the way in which they would give the boat away and decided they would best achieve their aims by giving it to Mrs. Rigney personally.
©MNoonan2009 FRANK LINKE V. MELVA LINKE & ORS (1995) SASC 5201 Frank was former husband of Melva and father of Dennis and Kevin. He married Melva in 1945 and set up a small transport business in the Barossa Valley, transporting grapes and juice. In 1955 he purchased an orchard with his wife and another one in 1968. The two sons went to work for their father when they left school. By 1976, grapes were crushed and juice transported to winery in tankers and so one was purchased. Dennis and Kevin formed a business called Linke Transport. In 1980 Kevin and Melva sold the two orchard properties to Dennis and Kevin for $64,975, by way of $4,000/year payments and a mortgage back to the parents. Kevin left in 1984 and went to live in a house he had purchased during the marriage, but which he had not told his wife about. He did not take any assets of the business with him; nor participate from then on. As part of his divorce property settlement, Frank sought orders in respect of the transport business, vehicles, plant and equipment of the transport and orchard businesses and income earned since 1979. Melva Kevin and Dennis claimed the plant and equipment had been gifted to them and that the vehicles had either been sold with the business or given to them around 1980 with the plant and equipment.
©MNoonan2009 Linke(2) Evidence confusing and Frank not a good witness (obdurate and often evasive particularly when cross examined as to documentary material which tended to refute his claims). He alleged that he demanded the vehicles in 1984 but defendants failed to deliver. He claimed that from the time the orchard properties were transferred to Dennis and Kevin he was gradually excluded from the family businesses. This was denied. There was evidence that at the time of the sale of the orchards both Frank and Melva had acknowledged to the solicitor that the vehicles were discussed and they said “that’s all given in the price”. There was also evidence that Frank had said “don’t forget one of these days it will all be yours “and “when I retire its all yours” and other words to that effect. When he left the plant and equipment in their possession he said “its all yours”. When he left Dennis gave evidence that he said “When I leave, everything is yours and you have to look after mum”. The court also found that the conduct of the business after the events in question was consistent with the vehicles passing with the business and the plant and equipment being gifted….the sons paid all the expenses of the business, entered into contracts, purchased more vehicles, actions and words of Frank at time of leaving both an effective delivery….“…the sons had been using the items while their father was still working in the business; they continued to use them after he left. The father acquiesced in the use. In the nature of the items and of the business he could deliver them no more effectively, no more unequivocally, than by walking away and leaving them to the sons….his leaving was simply a part and the culmination of the process of handing over the business to his sons….his statement on leaving was confirmation of the gift….” It was noted that delivery need not be at the same time as the gift. Delivery first and gift afterwards is as effectual as the other way around.
©MNoonan2009 SALLY ANNE HORSLEY V. PHILLIPS FINE ART AUCTIONEERS PTY LTD SCNSW 31.07.95 No3211/92 Concerns gifts, bills of sale, conversion Anthony and Carl Spies lived with their parents in The Swifts. Their Company Minjar purchased this property in Darling point from the Catholic Church in 1986. It executed a Mortgage back. In the same year Carl and Anthony as Mortgagors executed an Ordinary Bill of Sale over antique furniture and chattels in favour of the church. Anthony Spies claimed the 1986 BS was discharged in 1987. Court found more probably than not that it was paid out (32).The evidence was slim but an inference was raised by the fact that there was a later BS granted by Carl alone (the 1990 BS) to secure unpaid interest from the mortgage…over …"all furniture and furnishings now and hereafter situated in the premises known as The Swifts…"…same furniture as in the 1986 BS This coincided with the principal mortgage being discharged and a refinancing by Minjar with St. George. BS transferred to St. George in 1992. St. George seized the furniture. Anthony claimed a half interest and sued in conversion. He had to show that he had title to the furniture, that St. George converted it and he suffered quantified loss and damage. St. George contends that Anthony failed to establish any of these and that prior to the grant of the BS, the furniture had been gifted to their mother in 1987. Anthony gave evidence of the gift to his mother in 1987(33) See later paragraphs for discussion of an effective gift …delivery 53-83,84,85,86,87
©MNoonan2009 Nolan v. Nolan & Anor (2003) VSC 121 (28/04/2003) Slide 1 Jinx Nolan sought a declaration that she was the full beneficial owner and entitled to possession of 3 Sidney Nolan paintings. She was the daughter of Nolan’s second wife(marriage 1948 to 1976) She also sought orders for delivery up and damages pursuant to s. 82 of the Trade Practices Act claiming that Sothebys had, contrary to s. 52 of TPA represented to the public that the sale of the paintings was being undertaken on behalf of the true owner with the capacity to pass good title and Lady Nolan by being involved contravened 75B. The defendants were her father’s third wife, Lady Nolan and Sotheby’s (who Lady Nolan had commissioned to auction various paintings including the 3 in dispute). Jinx claimed that the paintings were assets of her mother’s estate because they were given to Cynthia by Sidney Nolan at a date prior to her death. It was undisputed that the paintings had remained in the possession of Sidney Nolan until his death. There were acknowledgements in catalogues that the paintings belonged to Cynthia in 1957, 1970 and 1976. Sidney Nolan had made many gifts of paintings to Cynthia during his lifetime which he did not dispute either during his life or after her death. Judge found this consistent with the conclusion that he did not make gifts to her of those paintings he retained after her death.
©MNoonan2009 Intention to make the gift NOLAN Slide 2 Jinx was unable to produce any witnesses to the gifts. The documents relied on could constitute at best ex post facto admissions or acknowledgements. Evidence that Sidney Nolan believed he had made a gift which had taken effect and which he did not desire to retract would be capable of manifesting donative intention. Not so here as the catalogues were of loans made by Cynthia and in one case Sidney Nolan did not know of the exhibition until after it was arranged. Catalogues are in no sense equivalent to a register of title and must be approached with considerable caution because of what goes on in putting them together. They were also put together by Cynthia and not Sidney Nolan. No donative intent proven. Delivery Not only must the donor part with possession, he must relinquish all present and future dominion and control over it beyond any power on his part to reclaim it. There is discussion of In Re Cole and Horsley leading to approval of a strict requirement for delivery rather than a relaxation of that requirement. Other than for a period during exhibitions, there is no evidence of Cynthia’s level of access to, or power, rights of user and control over any of the paintings in dispute. No delivery proven. (In any case, out of time because of Limitation of Actions Act )
©MNoonan2009 Rowland v. Stevenson (2005)NSWSC 325 Birthday present of a yacht? Valid gift? On the night of 40 th birthday of R, a yacht belonging to Mr. S (husband of R’s mother) was moored outside restaurant where party took place. When making his speech Mr. S gave a gift to R and said to R: “And you can have the boat” R accepted in his acceptance speech. Various other similar statements prior to that time Mr. S later said he was joking.
©MNoonan2009 Rowland v. Stevenson cont (2) Valid gift? Did it matter that words not contemporaneous with delivery? No Did it matter that there was a liability (1/3 of value owed and charged to third party) transferred with gift? No Handing keys over. “It’s all yours son”. Enough for delivery? Yes, constructive.
©MNoonan2009 Donatio Mortis Causa? Note public policy issues. Donor no longer around Easily abused Desire to encourage people to make valid Wills etc. Do not confuse with gifts during lifetime…intended to come into effect while person alive.
©MNoonan2009 TAWIL V. PUBLIC TRUSTEE OF NSW Matter No 4696/97 (1998)NSWSC 520 (1July1998) On the way to hospital on 20.04.96 (where he died on 21.04), Michael Biriukoff gave plaintiff a bag. "Yousef, you know I loved you always as my son, and you know that I have no relatives, so if anything happens to me I want you to have all that is in this bag. You will find details of my bank accounts, the car keys and all my other papers. Everything I own is yours if anything happens to me…..I want you to have everything if I die and the papers are all in the bag….he gave plaintiff the bag…I packed it specially so that I could give it to you." Donatio mortus causa? Handing over of bank statements demonstration of intention and symbolic of it? Lessening of requirements in recent years? Discussion of Public Trustee v. Bussel. Judge refused to extend doctrine so that handing over bank statements sufficient….in no sense indicia of title or even evidence of title…not required to be produced to bank when obtaining payment from account. Keys for car would have been enough for it to be within principles as enunciated in Bussel. Application for declaration failed for other reasons.
©MNoonan2009 Hobbes v. NSW Trustee & Guardian  NSWSC 570 Case examined whether delivery of documents for bank account and term deposit was the means or part of the means of getting at the property or the essential indicia of title and whether land can be the subject of a donation mortis causa. Court concluded valid donation mortis causa of bank account balance and term deposit, but not apartment.
©MNoonan2009 Hobbes v. NSW Trustee & Guardian Ms Hobbes did a lot for George Gibson in the 11 months before his death. See paras 8-13 for evidence re George’s statements to Ms Hobbes-”When I go, you live here” “Take these. I don’t need anymore” “Plenty there for you. Look after you” “You have my keys. All yours. Thank you for looking after me” See para 22 for essential elements of donation mortis causa…Public Trustee v. Bussell…gift made in contemplation of death, delivery and conditional on death….first and third satisfied in all cases.Main issue in all was delivery. See review of relevant cases in judgement Clear that passbook was an essential indicium of title because it had to be presented for each transaction….enough for dmc, but not intervivos gift More difficult re term deposit, but card etc enough. Regardless of debate over whether dmc can apply to land in Australia ever, even if it did, keys and rate notice not enough.