module 1 personal property summer 2006-07

5/25/2018 Module 1 Personal Property Summer 2006-07

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Commercial Transactions

Module 1Personal Property

Summer Session 2006-07

MNoonan2006


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This presentation and Copyright therein is theproperty 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 availablefor their individual study. Any other use or

reproduction, including reproduction by those

students for sale without consent is prohibited.


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Personal Property

In this module, we introduce the concept of

personal property and 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 inpersonal property other than by

purchase/sale and the applicable law.


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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

Rights under a Will

Intellectual Property


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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 eails containing several confidential project documents to his wifes e-mail

adress. Woolworths discovered the emails, obtained an Anton Piller order and

removed Olsons wifes computer before the emails were opened.

The court found

Sending the documents to his wifes account (a third party) was a breach of his

agreement.

By sending the emails a reproduction of the documents had been made on Olsons

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.


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COPYRIGHT

Defined in Copyright Act to be personal property

Distinguish a work that is subject to copyr ight

and

the copyr ight 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 familys use

and unpublished at his death) to his sister-in-lawand 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.


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Copyr ight 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 thefinished article.


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Copyright can be transferred by

assignment, by wil l 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 ofcopyright.


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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 theinterest in the copyright of the grantor of the licence to

the same extent as the licence was binding on the grantor.


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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 aproposed enterprise agreement. The directory was marked by MEAA forindividuals potentially affected by the proposed agreement and given to a callcentre, ACTU Member Connect (Connect), for it to make a database ofindividuals to poll.

Gyles J held that Seven owned copyright in the compilation of the directory andMEAA's annotation of the directory was a reproduction of the directory in materialform. Seven was granted an injunction to restrain further use and additionaldamages of $10,000 pursuant to s115(4) of the Copyright Act were also awardedagainst MEAA -the infringement was done in secret, and enabled Connect toconduct polling quicker and more efficiently than otherwise possible.

In respect of Connect, Gyles J held that the creation of a database usingthe annotated directory to obtain names, telephone numbers, position andlocation of persons, which could be reproduced in hard copy, was also aninfringement of copyright. Seven was granted an injunction to restrain further useby 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.


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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 beexclusive, 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 intellectualproperty 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.


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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?


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The story of Wormi tage 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 schools

worm factory. 200,000 worms work their way through lunch scraps. Carnivorousplants 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 arecord $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?


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PERSONAL PROPERTY

DISTINGUISHPOSSESSION

CONTROL

WHY NOT FINAL?

ENCOURAGE FORCEFUL ACQUISITION

AND

OWNERSHIP

ENTITLEMENT

RIGHT TO CLAIM IT FROM SOMEONE ELSE

USUALLY SUPERIOR TO POSSESSION


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Possession

Elements

1. Control over the chattel.

Plus

2. Intention to exclude others from exerciseof control.


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Importance of possession

In absence of evidence to contrary, conclusiveevidence of ownership

Central to determining entitlement to lost property

Interference with possession (and not ownership)gives rise to remedies in detinue, trespass andconversion.

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.


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Ownership

Ownership of personal property involvesmore than possession-

the right to possession,to use, to use up,

to alter,

to hire out,

to grant a security,

to gift, or sell.


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Acquiring Ownership

Possession

FindersKeepers

Production Purchase

Seemodules

2-5

Gift

Intervivos, or inContemplation

of death

Will orInheritance

Barter Accession Confusion


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FINDERS KEEPERS

ENTITLED AGAINST ALL EXCEPTSOMEONE 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?


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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 betterTitle than finder

Onland True owner has best titleFinder has better titleThan owner of land Landowner exercised Parker

Such manifest control Mundayover the land as to Flackindicate an intention Tamworthto control the landand anything foundon it


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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


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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.


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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.


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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.


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Abandoned and found? A gift? Nemo dat?

See example Pearson 2nded p 94

George was hiking across Broadacres; an outback rural Queenslandproperty, when he saw an old tractor lying in a disused shed. George

was an agricultural machinery collector and immediately recognisedthe 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 formerglory. He contacted the lessee of Broadacres, Russell, who said hecould take the tractor as he did not want it. George said he wouldhave it towed off the land in a week. Before that, an arsonist torchedthe shed in which it was housed and the tractor was destroyed.Russell wanted to lodge an insurance claim with his equipmentinsurer covering the loss of the tractor. George had taken out anendorsement 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.


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anifest intention to exercise controlTAMWORTH 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 meansof 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 knowledgeof 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 intentionto 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.

THE CASE OF THE GREY METAL FILING CABINET


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THE CASE OF THE GREY METAL FILING CABINET

Back in the 1970s, we had double digit inflation. Eva, was concerned how she would continue tofund her long life. With her husband dead and children gone, she passed the time watchingtelevision, feeding her cats and filling her house with more and more junk from the auction sales ofdeceased estates in her town. She bought everything; whether it be genuine antique cedar furniture orold 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 lineand started to trade. She dealt with bearer stocks and bonds and had an account set up via a letterbox 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 bondcertificates. 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 inwhich 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 oldsmelly 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 andpushed over one of the filing cabinets. It burst open and exposed-$7, 549,000 worth of bearer stockand 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?


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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 Girrawheenbackyard, he uncovered what one family claims as their dead mothers 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 Russianmigrant mother Anna hid the money as a nest egg against hard times. When Mrs Koniordied 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 andproceeds shared among the 3 children.

But now Adela 56, Lee 51 and Trudi 50 are considering civil action to recover what they sayis family property.

Criminal proceedings for theft were dropped.


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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 barsfor 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?

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, butappropriate 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.

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 doesnt 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. Note the difference if the money had been abandoned by true owner.


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FREE COINS IN THE FOUNTAIN

As reported in the Law Society Journal December 2003 p 96

It will no longer be a crime to scrabble for coins from Romes Trevi

Fountain, after an appeals court ruling that, once they have beenthrown away for luck, the coins are deemed not to belong to anyone,reported the London Telegraph.

The landmark case overturns previous lower court rulings that themoney was public property. It meant acquittal for a homeless

woman, Nadia Agrisani, convicted of theft of city property after

taking $30 worth from the famous fountain. Agrisani had received a$3,000 fine from a lower court, but being broke and homeless hadnot been able to pay it. Agrisani said she took the fountain money tobuy school materials for her children.


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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 validgift or not.


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DEED OF GIFT

This DEED OF GIFT is made the 22ndday of May 2001.

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 propertyin or about the residence of the Donor at 44 Queen Street, Woollahra NSW to hold thesame for her benefit absolutely

IN WITNESS WHEREOFthe Donor has duly executed this deed on the above date.

SIGNED SEALED AND DELIVERED

by the said Donorin the presence of ..

.


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(1) GIFT INTER VIVOS

A gift made during ones lifetime.

CONDITIONS FOR EFFECTIVE GIFT inter vivos

Donative intent Delivery. Acceptance

(2) DONATIO MORTIS CAUSA

A gif t 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


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GIFT INTER VIVOS

In re Cole, a Bankrupt (1964) 1 Ch 175

Mr. Cole took his wife to his house. Showed her the furnitureIts all yours Mr. Cole was made bankrupt.Trustee sued

Suff icient Delivery? Enough to br ing donee to gif t? Change of

possession? Actual v. constructive delivery?Di fference between gif tand trust. Law wil l not invoke to cure a defect.

Note policy considerations re bankrupt

FINDING OF THE COURT OF APPEAL

Gift never perfected by delivery

TAWIL V. PUBLIC TRUSTEE OF NSW4696/9 (199 ) S SC 0 (1 l 199 )


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Matter No 4696/97 (1998)NSWSC 520 (1July1998)

On the way to hospital on 20.04.96 (where he died on 21.04), MichaelBiriukoff gave plaintiff a bag.

"Yousef, you know I loved you always as my son, and you know that I haveno relatives, so if anything happens to me I want you to have all that is inthis bag. You will find details of my bank accounts, the car keys and all myother papers. Everything I own is yours if anything happens to me..Iwant you to have everything if I die and the papers are all in the bag.hegave plaintiff the bagI packed it specially so that I could give it to you."

Donatio mortus causa? Handing over of bank statements demonstration ofintention 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 titlenotrequired to be produced to bank when obtaining payment from account.

Keys for car would have been enough for it to be within principles asenunciated in Bussel.

Application for declaration failed for other reasons.


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RIGNEY V. GORDON & GORDON (1996) SADC 3531 and the dangers of vaguearrangements with charitable gift giving.

In anticipation of retirement, the Gordons went to live in Renmark in 1989. Theybought houseboats named Buralga and Dupree hoping that they would

provide security retirement. However, hire of houseboats for vacations on theMurray declined after 1992.Mrs Rigney was of aboriginal descent. She had for some years been employed asco-ordinator of the Gerry Mason Senior Memorial Centre; which sought toimprove the lot of aboriginal people in the Riverland.

The parties became friendly. The Gordons were interested in making somecontribution to the advancement of the local aboriginal community, but did notknow how to go about that. As their friendship increased with Mrs Rigney, sheclaims 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 SurveyDepartment 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, weve just given our boat away.


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RIGNEY v. GORDON & GORDON(2)

The Gordons argued that they had not given their boat away. They had merelymeant Mrs Rigney to be a manager pending their finding a suitable way to give it toan aboriginal organisation having aims that would achieve the ends that they had inmind but had been frustrated in their objective because Mrs. Rigney had notintroduced them to persons who could receive their gift on behalf of the aboriginalpeople in Riverland.

In the light of this and other evidence, the court had no trouble deciding that therehad been a gift to Mrs. Rigney personally. It found intention proven. It was satisfiedthe Gordons had become progressively more impressed by Mrs Rigney and herability to turn her hopes into reality as a business; thereby leading to increasedemployment 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 theywould best achieve their aims by giving it to Mrs. Rigney personally.


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FRANK LINKE V. MELVA LINKE & ORS (1995) SASC 5201

Frank was former husband of Melva and father of Dennis and Kevin. He married Melva in1945 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 sonswent to work for their father when they left school.

By 1976, grapes were crushed and juice transported to winery in tankers and so one waspurchased. Dennis and Kevin formed a business called Linke Transport. In 1980 Kevin andMelva 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 tolive in a house he had purchased during the marriage, but which he had not told his wifeabout. 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 transportbusiness, 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 thatthe vehicles had either been sold with the business or given to them around 1980 with theplant and equipment.

i k ( )


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Linke(2)Evidence confusing and Frank not a good witness (obdurate and often evasive particularlywhen cross examined as to documentary material which tended to refute his claims). Healleged that he demanded the vehicles in 1984 but defendants failed to deliver. He claimedthat from the time the orchard properties were transferred to Dennis and Kevin he wasgradually excluded from the family businesses. This was denied.There was evidence that atthe time of the sale of the orchards both Frank and Melva had acknowledged to the solicitorthat the vehicles were discussed and they said thats all given in the price. There was also

evidence that Frank had said dont 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 saidWhen 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 vehiclespassing 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 wordsof 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 heleft. The father acquiesced in the use. In the nature of the items and of the business he coulddeliver them no more effectively, no more unequivocally, than by walking away and leavingthem 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.

SALLY ANNE HORSLEY V PHILLIPS FINE ART AUCTIONEERS PTY LTD


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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 mortgageover"all furnitureand 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 giftdeliver 53-83 84 85 86 87


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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 topossession of 3 Sidney Nolan paintings. She was the daughter of Nolans second

wife(marriage 1948 to 1976) She also sought orders for delivery up and damages pursuant tos. 82 of the Trade Practices Act claiming that Sothebys had, contrary to s. 52 of TPArepresented to the public that the sale of the paintings was being undertaken on behalf ofthe true owner with the capacity to pass good title and Lady Nolan by being involvedcontravened 75B. The defendants were her fathers third wife, Lady Nolan and Sothebys

(who Lady Nolan had commissioned to auction various paintings including the 3 in dispute).

Jinx claimed that the paintings were assets of her mothers estate because they were given to

Cynthia by Sidney Nolan at a date prior to her death. It was undisputed that the paintings hadremained 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 didnot dispute either during his life or after her death. Judge found this consistent with theconclusion that he did not make gifts to her of those paintings he retained after her death.


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Intention to make the gift NOLAN Slide 2

Jinx was unable to produce any witnesses to the gifts. The documents relied on couldconstitute 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 toretract would be capable of manifesting donative intention. Not so here as the catalogueswere of loans made by Cynthia and in one case Sidney Nolan did not know of the exhibitionuntil after it was arranged. Catalogues are in no sense equivalent to a register of title andmust be approached with considerable caution because of what goes on in putting themtogether. 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 fordelivery rather than a relaxation of that requirement. Other than for a period duringexhibitions, there is no evidence of Cynthias 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 )


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Rowland v. Stevenson (2005)NSWSC 325

Birthday present of a yacht? Valid gift?

On the night of 40thbirthday of R, a yacht belongingto Mr. S (husband of Rs mother) was mooredoutside restaurant where party took place.

When making his speech Mr. S gave a gift to R andsaid 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.


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Rowland v. Stevenson cont (2)

Valid gift?

Did it matter that words not contemporaneous

with delivery? NoDid it matter that there was a liability (1/3 of

value owed and charged to third party)transferred with gift? No

Handing keys over. Its all yours son.Enough for delivery? Yes, constructive.


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GENEROSITY AT THE HIGHEST LEVELS

ONE TEL

One Tel founder Jodee Rich transferred assets to his wife, Maxine, withindays of the Companys collapse. Under pressure from ASIC, the Richesundertook to reverse the transfers.

PAN PHARMACEUTICALS

Jim Selim, the founder of Pan pharmaceuticals made a substantial gift tohis wife June 10 days after Pan went into administration.

December 10, 2003Mywife made a great contribution to the family andshe never asked for anything, and over the years, I made gifts when itsappropriateMr. Selim said. The money was intended to buy a childcarecentre, asecond career for herbut negotiations fell through, he told thecourt.

BARTER/COUNTERTRADE


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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 hadinsufficient hard currency to conduct monetary trade

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 theform of a turnkey factory, with products produced from the plant. The supplier of the plantusually disposes of the countertrade goods with those produced in its own plant.

OFFSETS-suppliers of capital equipment such as aircraft and telecommunications,

computersdefence material are obliged to offer offsets in the form of licensing, co-production, jointventures, technology transfer, training, research and development as part of the salespackage.

For more information contact:Australian Countertrade Association Ltd or UNCITRAL -

United Nations Commission on International Trade Law, Vienna.

$


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$150M GOLD FOR WHEAT DEAL

The first Iraq war following the invasion of Kuwait had put a stop to Australias 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 wheattrade with them. Iraqs 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 drivers

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 urgentcall 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 Iraqs 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.


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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 withcorn.

SPECIFICATO

The altering of a raw material to produce something of a different identity e.g. grapesfermented 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


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2004 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% ofbusinesses use non cash trade. Some very

large ones do and lots of very small ones.

Commercial exchanges, government deals,individual BtoB deals.


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Examples of reciprocal arrangements

A lot of oil swaps both by international oil companies andby others swapping other commodities (e.g. food) for oil.Venezuela barters oil with 13 countries e.g. accepts sugarfrom Barbados and bananas from St. Lucian

Bulgaria receives gas from Gazprom Russia in return for

allowing pipelines through its territory to othercountriesTurkey, Greece. Similar deal..cheappricewith Ukraine.

Sales of arms, defence materials. Note that extensiveoffsets can be involved.

East Malaysia plans a huge barter terminal that willexchange 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.


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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.SeeMcKeown v. Cavalier Yachts Pty Ltd


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McKeown v. Cavalier Yachts

(1988) 13 NSWLR 303Mr. 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 hedid.

Can the improvements be conveniently detached? No

Would it cause injury to remove? Yes.

Accession applies. Yacht returned to Mr. Mck. Damagesinappropriate because yacht sufficiently individual. Fair

and just compensation must be paid for improvements.


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Accession

InJones v. De Marchant(1916) 28 DLR 561

Husband used 18 of his wifes beaver skins

along with 4 of his own to make a coat forhis mistress.

Who owned the coat?

On application of doctrine of accession, thewife.


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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 filesbecause they could be removed without harm to

either documents or files.


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THE GODDESS

Ivan is a sculptor.

Suppose that he is walking in the countryside around Mudgee after a wine tastingweekend 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 itwas found claims the goddess.

Applying the principles of Accession, who do you think will end up with her?

WHAT HAPPENS WHEN STOLEN CARS OR BOATS ARE IMPROVED BY


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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 canbe removed easily and therefore would usually not accede to the truck.Note discussion ofMcKeowns Supreme Court case.

If a person sues in damages in respect of a chattel and the defendant has improved it, thedefendant is entitled to compensation for the extent to which at the time at which thegoods 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 forthe enhanced value?If the plaintiff has given full and free acceptance to the work done bythe defendant then it is appropriate that the defendant be compensated for its work. Thetest for this class would be whether the work done for the plaintiff conferred on him anincontrovertible benefit. If that is the case, the plaintiff should pay compensation as aprerequisite for an order returning the chattel to him. (The McKeown situation).


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CONFUSIONIndian 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 loaded507,977 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.

module 1 personal property summer 2006-07

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