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©MNoonan2009 Commercial Transactions Summer 2009-10.

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1 ©MNoonan2009 Commercial Transactions Summer

2 ©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.

3 ©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 remedies. Students are encouraged to read one of the morning newspapers, to note reports on matters relevant to our course and to discuss them in class. 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. For example, in the Winter 2008 and Summer Semesters, the Opes Prime litigation, margin loans and security over shares, was very relevant to both title to, and security over, personal property.

4 ©MNoonan2009 Commercial Transactions Module 1 Personal Property Summer Session

5 ©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.

6 ©MNoonan2009 What is property? Something we can own, and have certain rights in relation to. What is personal property? Every type of property apart from real property. Tangibles-an object Examples Cars, boats, machines, phones, computers, toys, clothes, furniture, linen, minerals, food, manufactured items Intangibles-rights Examples Interest in a partnership Right to sue in debt Rights as a shareholder Licences Rights under a Will Intellectual Property

7 ©MNoonan2009 Licences Valuable rights. Some traded. Some personal. Mining rights-precious metals, oil, etc. To use software To use IP-copyright, trademarks-e.g. franchises To take a natural commodity-fish, water To drive a taxi To conduct a particular occupation, business To use territorial airspace To use privileges via treaties and legislation

8 ©MNoonan2009 Intellectual Property in Commerce

9 ©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 s containing several confidential project documents to his wife’s address. Woolworths discovered the s, obtained an Anton Piller order and removed Olson’s wife’s computer before the s were opened. The court found Sending the documents to his wife’s account (a third party) was a breach of his agreement. By sending the s a reproduction of the documents had been made on Olson’s server (which was capable of further reproduction when the sent s were downloaded or deleted). Olson had infringed copyright even though the s were never opened.

10 ©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.

11 ©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.

12 ©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.  A licence is not an assignment; merely a right to copy-that which would otherwise be a breach of copyright.

13 ©MNoonan2009 COPYRIGHT ACT 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.

14 ©MNoonan2009 Seven Network (Operations) Limited v Media Entertainment and Arts Alliance [2004] 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.

15 ©MNoonan2009 TRADE MARKS ACT 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

16 ©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.

17 ©MNoonan2009 THE LINK BETWEEN THE TANGIBLE AND INTANGIBLE BIOTECHNOLOGY 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?

18 ©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?

19 ©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

20 ©MNoonan2009 Possession Elements 1.Control over the chattel. Plus 2.Intention to exclude others from exercise of control.

21 ©MNoonan2009 Importance of possession In absence of evidence to contrary, conclusive evidence of ownership Central to determining entitlement to lost property Interference with possession (and not ownership) gives rise to remedies in detinue, trespass and conversion. Creation of some security interests depends on possession. E.g. pledges and possessory liens. Transfer of ownership can be achieved by delivery in some cases e.g. gifts.

22 ©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.

23 ©MNoonan2009 Acquiring Ownership Possession Finders Keepers ProductionPurchase See modules 2-5 Gift Inter vivos, or in Contemplation of death Will or Inheritance BarterAccessionConfusion

24 ©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?

25 ©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, commits 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.

26 ©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.

27 ©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 Finder has better title 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

28 ©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.

29 ©MNoonan2009 FINDERS KEEPERS 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.

30 ©MNoonan2009 FINDERS KEEPERS 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.

31 ©MNoonan2009 FINDERS KEEPERS 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

32 ©MNoonan2009 FINDERS KEEPERS 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.

33 ©MNoonan2009 RIGHTS OF FINDERS LEONARD GEORGE MUNDAY V. AUSTRALIAN CAPITAL TERRITORY (1998) SC ACT 62 NO. SC 320 OF 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.

34 ©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.

35 ©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.

36 ©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.

37 ©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?

38 ©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.

39 ©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? Who does the information in those records belong to?

40 ©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.

41 ©MNoonan2009 DEED OF GIFT This DEED OF GIFT is made the 22 nd day of May BETWEEN Quentin Cole of 44 Queen Street, Woollahra NSW(Donor) AND Mary Cole of 44 Queen Street, Woollahra NSW (Donee) NOW THIS DEED WITNESSETH: In consideration of the love and affection of the Donor for the Donee, the Donor hereby assigns to the donee all the furniture, cars, jewellery and other items of personal property in or about the residence of the Donor at 44 Queen Street, Woollahra NSW to hold the same for her benefit absolutely 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 ……………………………………….. …………………….

42 ©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 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

43 ©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

44 ©MNoonan2009 TAWIL V. PUBLIC TRUSTEE OF NSW Matter No 4696/97 (1998)NSWSC 520 (1July1998) On the way to hospital on (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.

45 ©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 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 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”.

46 ©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.

47 ©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 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 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.

48 ©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.

49 ©MNoonan2009 SALLY ANNE HORSLEY V. PHILLIPS FINE ART AUCTIONEERS PTY LTD SCNSW 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 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 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 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 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

50 ©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 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.

51 ©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 )

52 ©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.

53 ©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.

54 ©MNoonan2009 GENEROSITY AT THE HIGHEST LEVELS ONE TEL One Tel founder Jodee Rich transferred assets to his wife, Maxine, within days of the Company’s collapse. Under pressure from ASIC, the Riches undertook to reverse the transfers. PAN PHARMACEUTICALS Jim Selim, the founder of Pan pharmaceuticals made a substantial gift to his wife June 10 days after Pan went into administration. December 10, 2003”My wife made a great contribution to the family and she never asked for anything, and over the years, I made gifts when its appropriate” Mr. Selim said. The money was intended to buy a childcare centre, “a second career for her” but negotiations fell through, he told the court.

55 ©MNoonan2009 BARTER/COUNTERTRADE Trade in which payment is made in goods/services instead of money. Around forever. Common after WWII in the trading practices of the Soviet Bloc who sometimes had insufficient hard currency to conduct monetary trade. Also used to gain access to markets otherwise unable to afford to pay. BARTER-Exchange of goods/services….cash does not enter into the transaction. COUNTERPURCHASE. Importer pays for imported goods through supplying other goods, of the total or part of the value of the import. Can also be services. BUY-BACK occurs when an importing country pays for plant and equipment, often in the form of a turnkey factory, with products produced from the plant. The supplier of the plant usually disposes of the countertrade goods with those produced in its own plant. OFFSETS-suppliers of capital equipment such as aircraft and telecommunications, computers,defence material are obliged to offer offsets in the form of licensing, co- production, joint ventures, technology transfer, training, research and development as part of the sales package. For more information contact:Australian Countertrade Association Ltd or UNCITRAL - United Nations Commission on International Trade Law, Vienna.

56 ©MNoonan2009 $ 150M GOLD FOR WHEAT DEAL The first Iraq war following the invasion of Kuwait had put a stop to Australia’s lucrative wheat trade with Iraq. However, within 48 hours of hostilities ceasing, Charles Stott, (in 1991 head of international sales and marketing for the Australian Wheat Board) was on the doorstep of longtime friend and trading colleague Zuhair Daoud, director general of the Iraqi Grains Board to “try to resume our wheat trade with them”. Iraq’s global assets were frozen by BIS at the time so how could they pay? In the past, Stott had dealt with suitcases of US dollars, counted over the border in Jordan. This time, the Iraqis suggested gold. The RBA officials found a technical way around trade bans and UN sanctions and there was the humanitarian aspect. Stott had with him the RBA assistant governor, who could distinguish the real thing on sight. Because of anxiety over security, the Iraqis wanted to keep the transportation of the gold as low-key as possible. For the first leg from Baghdad to Amman, (1,000km) 200 wooden crates, each with 4*12.5kg gold bars, were loaded into a single Mercedes wheat truck with just one driver. A 35km airport/city trip took 10 hours in the Mother of all Storms. The gold truck had slid off the road in a snow drift and had been there for two days. A replacement Bedford fruit truck arrived and the bullion was transferred. As it proceeded toward the meeting with Stott, the driver’s cabin was lifted clean off the road on to the back axle with the weight. The approval of Jordanian officials was needed because the gold was being moved through Jordan. Then, the Iraqis questioned the authority of the Assistant Governor to accept delivery on behalf of the Reserve Bank. An urgent call went to Bernie Fraser at the Reserve Bank. Roused from his bed, he duly faxed confirmation of his authority. But, how did the Iraqis know the fax was genuine? An Australian $20 banknote was produced with a flourish and the signature on the fax matched the one on the banknote. The relieved Australians left it behind as a souvenir! The gold bars were stamped with a hammer and sickle signifying Russian origin, proving they had come from Iraq’s vaults and not Kuwait. They found their way slowly and unobtrusively to the Perth Mint, were quickly reprocessed and sold off as bars and coins.

57 ©MNoonan Global Reciprocal Trade WTO estimates that 15% or $8.43b of the $5.62t in international trade is conducted on a non cash basis. However, less than 1% of businesses use non cash trade. Some very large ones do and lots of very small ones. Commercial exchanges, government deals, individual BtoB deals. Note 2009 dissatisfaction with USD and discussions re alternative reserve currency (basket of several, SDR), role of barter, gold, real items rather than paper money.

58 ©MNoonan2009 Examples of reciprocal arrangements A lot of oil swaps both by international oil companies and by others swapping other commodities (e.g. food) for oil. Venezuela barters oil with 13 countries e.g. accepts sugar from Barbados and bananas from St. Lucian Bulgaria receives gas from Gazprom Russia in return for allowing pipelines through its territory to other countries…Turkey, Greece. Similar deal..cheap price…with Ukraine. Sales of arms, defence materials. Note that extensive offsets can be involved. Planes for oil or shrimp. East Malaysia plans a huge barter terminal that will exchange grains, timber, food, livestock, palm oil, electrical products, tobacco and chemicals. Large companies sometimes exchange (agree to share) sophisticated technology for access to markets. E.g. power.

59 ©MNoonan2009 Barter example-resources Hancock agreed with Romanian company to provide iron ore in exchange for rolling stock and other things as part of a countertrade deal. Unfortunately, Hancock needed the cooperation of BHP (both to use their Mt Newman railway and with the mining) for it to work. Just about everything that could go wrong did go wrong, the agreements were not interdependent. Hancock Mining sought to assign its rights in various agreements so someone else could bring the legal action. See Westraint Resources P/L v. BHP Iron Ore P/L (2001) for details.

60 ©MNoonan2009 ACCESSIO The joining of one (usually smaller) thing(s) to another (usually larger or more valuable) one. Can be Accession by attachment and accession by natural increase.Injurious removal, separate existence and destruction of utility tests commonly used. CONFUSIO The mixing of fluids so that they cannot be separated e.g. wine with wine or oil with oil. COMMIXTIO The mixing of identical or similar dry goods so they cannot be separated e.g. corn with corn. SPECIFICATO The altering of a raw material to produce something of a different identity e.g. grapes fermented into wine or skins fashioned into a coat Note that courts do not always use the same classifications! The objective is a just result; whatever the test used

61 ©MNoonan2009 Accession The owner of the principal chattel may become owner of both it and the attachments. The owner of the attachments, although they lose ownership, may be entitled to compensation. See McKeown v. Cavalier Yachts Pty Ltd

62 ©MNoonan2009 McKeown v. Cavalier Yachts (1988) 13 NSWLR 303 Mr. McK owned yacht hull worth $1,777. It was situated on the premises of Cavalier, the manufacturer. An engine was installed and deck filled. Improvements worth $24,409. Who owned the yacht as improved. Mr. Mck claimed he did. Can the improvements be conveniently detached? No Would it cause injury to remove? Yes. Accession applies. Yacht returned to Mr. Mck. Damages inappropriate because yacht sufficiently individual. Fair and just compensation must be paid for improvements.

63 ©MNoonan2009 Accession In Jones v. De Marchant (1916) 28 DLR 561 Husband used 18 of his wife’s beaver skins along with 4 of his own to make a coat for his mistress. Who owned the coat? On application of doctrine of accession, the wife.

64 ©MNoonan2009 Accession If a chattel that has been attached to another can be removed without damage to either, there is no need to apply doctrine of accession. e.g. Sims v. SPM Business Consultants Pty Ltd (2002) 43 ACSR 633, held that doctrine did not apply to documents later added to client files because they could be removed without harm to either documents or files.

65 ©MNoonan2009 THE GODDESS Ivan is a sculptor. Suppose that he is walking in the countryside around Mudgee after a wine tasting weekend and comes across a large stone. He imagines it is a goddess trapped and fighting to be released. Try as he might, he cannot leave her behind to her fate. Later, he manages to take the stone home with a little help from his friends and works on it. Week after week, night after night he chips and polishes. Finally after 6 months, the goddess is released. His friends are most impressed and take it to one of the galleries in Paddington. A major patron loves it and offers $150,000 for it. Ivan is interviewed in Art Magazine and feted by the Art crowd. He is considering the offer. Word gets back to Mudgee of their famous stone. The owner of the land on which it was found claims the goddess. Applying the principles of Accession, who do you think will end up with her?

66 ©MNoonan2009 WHAT HAPPENS WHEN STOLEN CARS OR BOATS ARE IMPROVED BY INNOCENT PURCHASERS? See article in Law Society Journal May 2003 Criminal Procedure Act No matter. All goes to owner of car of boat when claimed. Private action It all depends on accessio….. Only accedes if it cannot be removed without destruction or serious injury. E.g. tyres can be removed easily and therefore would usually not accede to the truck.Note discussion of McKeown’s Supreme Court case. If a person sues in damages in respect of a chattel and the defendant has improved it, the defendant is entitled to compensation for the extent to which at the time at which the goods are to be valued, the value of the goods attributable to the improvement. If a plaintiff does not claim damages and where the added value of a chattel has not been realised by it being sold, why should the plaintiff give compensation to the defendant for the enhanced value?If the plaintiff has given full and free acceptance to the work done by the defendant then it is appropriate that the defendant be compensated for its work. The test for this class would be whether the work done for the plaintiff conferred on him an incontrovertible benefit. If that is the case, the plaintiff should pay compensation as a prerequisite for an order returning the chattel to him. (The McKeown situation).

67 ©MNoonan2009 CONFUSION Indian Oil Corporation v. Greenstone Shipping SA (Panama) (1988) 1 QB 345 Greenstone Shipping owned cargo ship and 15,633 barrels of oil in tanks.Greenstone loaded 507,977 barrels belonging to Indian Oil onto the ship in Russia.Oil became mixed with their own.Ship sailed to India.After Indian Oil received entitlement, claimed remainder.Arbitration against them. They appealed to High Court of Justice  If Greenstone wrongly mixed, cannot be separated, does whole become property of Indian?  Mixture brought about by trick to deceive?  Impossible to distinguish property of each? DECISION No authorities binding. Some persuasive Apply rule which justice requires. Where B wrongfully mixes goods of A with goods of his own, which are substantially of the same nature and quality, and they cannot in practice be separated, the mixture is held in common and A is entitled to receive out of it a quantity equal to that of his goods which went into the mixture, any doubt as to that quantity being resolved in favour of A. A also entitled to claim damages in respect of any loss, by quality or otherwise.

68 ©MNoonan2009 Student questions Please explain the different findings in In re Cole and the Sally Anne Horsley case with respect to Delivery. Note whether control relinquished Public policy issue re a Bankrupt’s generosity

69 ©MNoonan2009 Exam September 2008 QA1 In the 1950s, a series of 22 very large canvas paintings by aboriginal artists came into existence. They had been the result of a government sponsored community project in Western New South Wales. At that time, indigenous art was not very popular. The paintings were purchased from the NSW Government for a token $50 by the Art Gallery of NSW (‘the Art Gallery’) at the insistence of the Minister, but never recorded as an item in it's collection. As the Curator of the Art Gallery did not want them, was very keen to be rid of them, believed they did not match the projected image and collection envisioned, and determined there was not very much storage space at the Gallery, he asked the NSW Museum whether it would take them; which it did. The paintings were placed in the basement of the Museum, added to its inventory, and forgotten. Everyone associated with this situation died before In 2006, the Museum Manager was surprised to find the stored paintings. A major exhibition was mounted in It drew hundreds of thousands of visitors and generated revenue of $7,000,000. There were requests for foreign exhibition tours. Merchandising offers poured through the door. This was very welcome, as it would enable the Museum to greatly enhance its offerings and research in various areas. Tristan, the curator of the Art Gallery, jealous of the rival Museum up the road, wondered where these magical paintings had come from. "Why, from your Gallery, of course", said William, the Museum Manager. "The Art Gallery gave them to us in 1957". Lawyers for the Gallery have sent a letter to William, demanding the paintings be returned to the Gallery at the end of the current exhibition. Advise William on the legal position of the Museum with respect to the canvasses.

70 ©MNoonan2009 Past /sample exam questions September 2008 SECTION A QUESTION 1 Understood Q Gifts, title, bailment 2 Answered the Q 2 Gift including Nolan 8 Ownership/Copyright/Abandonment 4 Bailment 5 Reasoning 2 Other e.g. authority of curator, storage charges, 1 TOTAL 25 Students were expected to work through the required criteria for a valid gift…intention, delivery and acceptance and conclude whether the arrangement was a gift or bailment for storage and the consequences


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