s 11(1)(a) s (11)(1)(b) s 11(1)(c)

Transcription

1 ASSIGNMENT REQUIREMENTS OF WRITING Creatin f express trusts: The trustee must have the title t the trust prperty Where the trustee acquires the prperty, the prper writing and frm requirements must be adhered t, in rder t perfect a valid transfer The trustee will gain the prperty thrugh assignment (transfer) f the prperty Assignment = the immediate transfer f an existing prprietary right, vested r cntingent, frm the assignr t the assignee: Nrman v Federal Cmmissiner f Taxatin (1963) 109 Matter s 11(1)(a) s (11)(1)(b) s 11(1)(c) Creatin r Declaratin f trust dispsitin f an interest in land Dispsitin f subsisting equitable interest r trust Object Land nly Land nly Land & Persnalty Type f writing Actual writing Evidentiary writing Evidentiary writing By whm Effect f lack f writing Settlr/lawfully authrised agent Dispsitin vid Settlr Dispsitin nt vid, merely unenfrceable Settlr/lawfully authrised agent Dispsitin nt vid, merely unenfrceable Sectin 11 PLA (1) Subject t this Act with respect t the creatin f interests in land by parl (a)n interest in land can be created r dispsed f except by writing signed by the persn creating r cnveying the same, r by the persn s agent lawfully authrised in writing, r by will, r by peratin f law; and (b)a declaratin f trust respecting any land must be manifested and prved by sme writing signed by sme persn wh is able t declare such trust r by the persn s will; (c) a dispsitin f an equitable interest r trust subsisting at the time f the dispsitin, must be manifested and prved by sme writing signed by the persn dispsing f the same, r by the persn s agent lawfully authrized in writing, r by will. (2) This sectin des nt affect the creatin r peratin f resulting, implied, r cnstructive trusts. Dispsitin includes cnveyance, vesting instrument, declaratin f trust, disclaimer, release and every ther assurance f prperty: s3 & Sch 6 PLA 1. except by will: Sch 6 PLA Sectin 59 PLA N actin may be brught upn any cntract fr the sale r ther dispsitin f land r any interest in land unless the cntract upn which such actin is brught, r sme memrandum r nte f the cntract, is in writing, and signed by the party t be charged, r by sme persn by the party lawfully authrised. 1

2 Rule in Millry v Lrd If a trust taking effect as a transfer des nt cmply with requirements f writing & frm, equity will nt save it by treating it as ne which takes effect as a declaratin Trust by transfer requirements f writing & frm Trust by declaratin requirements f writing nly Or n requirements at all, depending n the circumstances Actual writing v evidential writing Actual writing: an agreement/deed/dcument creating the trust 1. Cntempraneus (at time f transfer) Evidenced in writing: Sme dcumentatin t supprt the trust eg a letter saying trust created = sufficient evidentiary prf 1. Need nt be cntempraneus 2. N particular frm is required: Frster v Hale 3. The writing must cntain the terms f the trust the parties, particularly the beneficiaries, the trust prperty and the nature f the trust: Frster v Hale 4. The riginal beneficial wner (settlr) must sign the dcument, nt the trustee: Tierney v Wd 5. Evidentiary writing can be satisfied by multiple dcuments being read tgether: Secretary, Department f Scial Security v James (1990) 95 ALR 615 Types f equitable assignment: 1. Declaratin by full wner that hlding as trustee fr third party O [ B] (trust created by declaratin) 2. Direct assignment by full wner t trustee fr third party O T [ B] (trust created by transfer) 3. Directin t trustee by beneficiary t hld trust prperty fr the third party T [ B1] [ B2] (trust cntinues) 4. Cntract fr valuable cnsideratin fr beneficiary t assign trust prperty t a third party T [ B1] ($) [ ($)B2] (trust cntinues) 5. Directin t trustee t transfer the trust prperty t a third persn [B ] T O (trust ends) beneficiary must be f full age and capacity and abslutely entitled t the trust prperty: Saunders v Vautier 2

3 1. Declaratin by full wner that hlding as trustee fr third party O [ B] (trust created by declaratin) Land s11(1)(a) r (b) actual r evidentiary writing HCA Apprach s11(1)(a) Actual Writing: Adamsn v Hayes (1973) HCA All dispsitins f interests in land require actual writing: s11(1)(a) PLA Dispsitin includes a declaratin f a trust: s3 & Sch 6 Dictinary Therefre, declaratins f trust require actual writing s11(1)(a) applies 1. nly t land nt t persnalty 2. t the creatin f an interest as well as a dispsitin 3. t all interests (legal and equitable), including leasehld interest: Adamsn v Hayes (1973) 130 CLR 276 (Oral agreement fr mining rights equitable interest mining claim = land lack f writing is a defence) Accepted Alternative Apprach s11(1)(b) Evidentiary Writing : Department f Scial Security v James (1990) 95 ALR 615 (lwer curt) (ral declaratin f trust unit fr disabled daughter but n dcumentatin evidentiary writing thrugh jinder did suffice issue f wnership f prperty lwering pensin) Definitins and prvisins in the PLA perate unless a cntrary intentin appears The express prvisin in s11(1)(b) that declaratins f trust require nly evidentiary writing demnstrates such a cntrary intentin T adpt the high curt apprach wuld be t neglect s11(1)(b) f any independent peratin Therefre, declaratins f trust require nly evidentiary writing Als suggested that s11(1)(a) has effect nly t legal interests, which avids the prblem (NSW): Balglw v Knstantidis [2001] NSWCA 451 s11(1)(b) a declaratin f trust respecting any land must be manifested and prved by sme writing signed by sme persn wh is able t declare such trust r by the persn s will; Requirements f Writing Evidentiary writing an agreement/deed/dcument creating the trust eg a letter saying trust created = sufficient evidentiary prf 6. Need nt be cntempraneus 7. N particular frm is required: Frster v Hale 8. The writing must cntain the terms f the trust the parties, particularly the beneficiaries, the trust prperty and the nature f the trust: Frster v Hale 9. The riginal beneficial wner (settlr) must sign the dcument, nt the trustee: Tierney v Wd 10. Evidentiary writing can be satisfied by multiple dcuments being read tgether: Secretary, Department f Scial Security v James (1990) 95 ALR 615 Required by settlr Failure f writing Dispsitin nt vid, merely unenfrceable 3

4 Persnalty n sectin applies n requirements f writing s11(1)(a) applies nly t creatins r dispsitins f interests in land, nt persnalty s11(1)(b) applies nly t trusts created by declaratin, nt by transfer s11(1)(c) applies nly t dispsitins f subsisting interest, nt t the creatin f new interests 2. Direct assignment by full wner t trustee fr third party s11(1)(a) O T [ B] (trust created by transfer) Land s11(1)(a) actual writing Because it is the creatin by transfer f a legal r equitable interest in land, it is a dispsitin and must therefre be in actual writing: s11(1)(a) Sme cntrary NSW authrity that it wuld nly apply t legal interests: Balglw v Knstantidis [2001] NSWCA 451 s11(1)(a) applies nly t land nt t persnalty t the creatin f an interest as well as a dispsitin t all interests (legal and equitable), including leasehld interest: Adamsn v Hayes (1973) 130 CLR 276 (Oral agreement fr mining rights equitable interest mining claim = land lack f writing is a defence) Vid unless actual writing: s11(1)(a) Sme academic authrity that it wuld nly apply t the transfer f equitable interests which is nt a declaratin f trust: see Frd and Lee, at [6060] s11(1)(a) n interest in land can be created r dispsed f except by writing signed by the persn creating r cnveying the same, r by the persn s agent lawfully authrised in writing, r by will, r by peratin f law; Requirements f Writing Actual writing an agreement/deed/dcument creating the trust Cntempraneus (at time f transfer) Required by settlr / lawfully authrised agent Failure f writing Dispsitin is vid Persnalty n sectin applies n requirements f writing s11(1)(a) applies nly t creatins r dispsitins f interests in land, nt persnalty s11(1)(b) applies nly t trusts created by declaratin, nt by transfer s11(1)(c) applies nly t dispsitins f subsisting interest, nt t the creatin f new interests 4

5 3. Directin t trustee by beneficiary t hld trust prperty fr the third party T [ B1] [ B2] (trust cntinues) Land s11(1)(a) r (b) evidentiary r actual writing Directin t trustees is a dispsitin: Grey v IRC [1960] AC 1 (H creates trusts fr benefit f grandchildren (B) ral directin t T t hld n trust (n stamp duty payable n ral directin) n beneficiaries named: resulting trust t H, t B upn death T executed declaratins f trust ral declaratins ineffective, because dispsitin f trust & nt in writing trustee writing directin saved the trust, subject t stamp duty) s11(1)(a) applies nly t land nt t persnalty t the creatin f an interest as well as a dispsitin t all interests (legal and equitable), including leasehld interest: Adamsn v Hayes (1973) 130 CLR 276 (Oral agreement fr mining rights equitable interest mining claim = land lack f writing is a defence) Minrity alternative Declaratin f trust (s11(1)(b) includes directin determines cmpletely the equitable interest f the persn making the directin, as with a declaratin s11(1)(b) applies evidentiary writing will suffice: Grey v IRC [1960] AC 1 (minrity) s11(1)(a) n interest in land can be created r dispsed f except by writing signed by the persn creating r cnveying the same, r by the persn s agent lawfully authrised in writing, r by will, r by peratin f law; Requirements f Writing Actual writing an agreement/deed/dcument creating the trust Cntempraneus (at time f transfer) Required by settlr / lawfully authrised agent Failure f writing Dispsitin is vid Persnalty Passive Subtrust s11(1)(c) evidentiary writing If the hlder f the equitable interest purprts t assign his r her interest, they are creating a sub-trust Effect f this depends n whether the sub-trust is active r passive: Re Lashmar [1891] Active subtrust s11(1)(c) des nt apply n writing required B1 (settlr f subtrust) passes nly part f equitable interest t B2 5

6 B1 reserves sme active duties fr himself (= an interest: Onslw v Wallis) Passive subtrust s11(1)(c) applies evidentiary writing required B1 passes full interest t B2 B1 ttally substituted by B2 has n active rle: Re Lashmar Designed t prevent a hidden ral transactin in equitable interests: Vandervell v Internal Revenue Cmmissiners [1967] 2 AC 291 per Lrd Upjhn s11(1)(c) applies t bth land and persnalty, but is rendered practically ineffective with regard t land by s11(1)(a): Adamsn v Hayes (1973) 130 CLR 276 Des nt apply t a resulting trust where new trusts declared and the beneficiaries directs the trustees t declare new trusts f the prperty received upn the exercise f the ptin: Re Vanvervell s Trusts (N 2) [1974] Ch 269 s11(1)(c) a dispsitin f an equitable interest r trust subsisting at the time f the dispsitin, must be manifested and prved by sme writing signed by the persn dispsing f the same, r by the persn s agent lawfully authrized in writing, r by will. Requirements f Writing Evidentiary writing an agreement/deed/dcument creating the trust eg a letter saying trust created = sufficient evidentiary prf 1. Need nt be cntempraneus 2. N particular frm is required: Frster v Hale 3. The writing must cntain the terms f the trust the parties, particularly the beneficiaries, the trust prperty and the nature f the trust: Frster v Hale 4. The riginal beneficial wner (settlr) must sign the dcument, nt the trustee: Tierney v Wd 5. Evidentiary writing can be satisfied by multiple dcuments being read tgether: Secretary, Department f Scial Security v James (1990) 95 ALR 615 Required by settlr / lawfully authrised agent Failure f writing Dispsitin nt vid, merely unenfrceable 6

7 4. Cntract fr valuable cnsideratin fr beneficiary t assign trust prperty t a third party T [ B1] ($) [ ($)B2] (trust cntinues) Land s11(1)(a) r s59 actual r evidentiary writing HCA Apprach s11(1)(a) Actual Writing: Adamsn v Hayes (1973) HCA per Gibbs J All dispsitins f interests in land require actual writing: s11(1)(a) PLA Dispsitin has its rdinary, wide meaning (Chrichtn v Chrictn (1940)) which includes a dispsitin fr cnsideratin (a sale): s3 & Sch 6 Dictinary s59 & s11(1)(a) bth apply, s higher standard is impsed actual writing required s11(1)(a) applies 1. nly t land nt t persnalty 2. t the creatin f an interest as well as a dispsitin 3. t all interests (legal and equitable), including leasehld interest: Adamsn v Hayes (1973) 130 CLR 276 (Oral agreement fr mining rights equitable interest mining claim = land lack f writing is a defence) Accepted Alternative Apprach s59 Evidentiary Writing: Abjrnsn v Urban Newspapers [1989] WAR 191; Thedre s59 cvers the field fr cntracts fr sale f land with valuable cnsideratin Definitins and prvisins in the PLA perate unless a cntrary intentin appears s 59 prvides that cntrary intentin actual r evidentiary writing sufficient Even if High Curt reasning is accepted The passing f cnsideratin binds the receiver s cnscience and creates a cnstructive trust until the gds are passed s11(2) states that s11(1)(a) desn t apply t cnstructive trusts s59 applies and actual r evidentiary writing sufficient: Oughtred v Inland Revenue Cmmissiners [1960] AC 206 (Trustee hlding shares X fr B1 (life interest) & B2 (remainder) ral agreement that B1 transfer shares Y t B2 in return fr B2 s remainder interest in shares X cntract f sale f remainder interest is specifically enfrceable upn signing: B2 becmes cnstructive sub-trustee f remainder interest in shares X fr B1 when shares transferred, full cnstructive trust established s11(1)(a) desn t apply evidentiary writing will suffice agreement enfrceable) s59 N actin may be brught upn any cntract fr the sale r ther dispsitin f land r any interest in land unless the cntract upn which such actin is brught, r sme memrandum r nte f the cntract, is in writing, and signed by the party t be charged, r by sme persn by the party lawfully authrised. 7

8 Requirements f Writing Evidentiary writing an agreement/deed/dcument creating the trust eg a letter saying trust created = sufficient evidentiary prf 6. Need nt be cntempraneus 7. N particular frm is required: Frster v Hale 8. The writing must cntain the terms f the trust the parties, particularly the beneficiaries, the trust prperty and the nature f the trust: Frster v Hale 9. The riginal beneficial wner (settlr) must sign the dcument, nt the trustee: Tierney v Wd 10. Evidentiary writing can be satisfied by multiple dcuments being read tgether: Secretary, Department f Scial Security v James (1990) 95 ALR 615 Required by signed by the party t be charged Failure f writing Dispsitin nt vid, merely unenfrceable Persnalty Passive Subtrust s11(1)(c) evidentiary writing If the hlder f the equitable interest purprts t assign his r her interest, they are creating a sub-trust Effect f this depends n whether the sub-trust is active r passive: Re Lashmar [1891] Active subtrust s11(1)(c) des nt apply n writing required B1 (settlr f subtrust) passes nly part f equitable interest t B2 B1 reserves sme active duties fr himself (= an interest: Onslw v Wallis) Passive subtrust s11(1)(c) applies evidentiary writing required B1 passes full interest t B2 B1 ttally substituted by B2 has n active rle: Re Lashmar Designed t prevent a hidden ral transactin in equitable interests: Vandervell v Internal Revenue Cmmissiners [1967] 2 AC 291 per Lrd Upjhn s11(1)(c) applies t bth land and persnalty, but is rendered practically ineffective with regard t land by s11(1)(a): Adamsn v Hayes (1973) 130 CLR 276 Des nt apply t a resulting trust where new trusts declared and the beneficiaries directs the trustees t declare new trusts f the prperty received upn the exercise f the ptin: Re Vanvervell s Trusts (N 2) [1974] Ch 269 s11(1)(c) a dispsitin f an equitable interest r trust subsisting at the time f the dispsitin, must be manifested and prved by sme writing signed by the persn dispsing f the same, r by the persn s agent lawfully authrized in writing, r by will. Requirements f Writing Evidentiary writing an agreement/deed/dcument creating the trust eg a letter saying trust created = sufficient evidentiary prf 11. Need nt be cntempraneus 12. N particular frm is required: Frster v Hale 13. The writing must cntain the terms f the trust the parties, particularly the beneficiaries, the trust prperty and the nature f the trust: Frster v Hale 14. The riginal beneficial wner (settlr) must sign the dcument, nt the trustee: Tierney v Wd 8

9 15. Evidentiary writing can be satisfied by multiple dcuments being read tgether: Secretary, Department f Scial Security v James (1990) 95 ALR 615 Required by settlr / lawfully authrised agent Failure f writing Dispsitin nt vid, merely unenfrceable 5. Directin t trustee t transfer the trust prperty t a third persn [B ] T O (trust ends) Land s11(1)(a) actual writing It is a dispsitin in equity, and therefre will need t cmply with the writing requirements The greater includes the less as lng as the requirements are fllwed in regards t the legal interest (f the trustee), then that will be sufficient t pass the equitable interest als: Vandervell v Inland Revenue Cmmissiners [1967] 2 AC 291 (Bank hlds shares n trust fr V V directs B t transfer t Charity ptin t repurchase granted in favur f R after dividend paid, transferred beneficial interest t avid paying tax ral directin effective but shares held n resulting trust fr V transfer f legal title included transfer f lesser parts ptin nt enfrceable had t pay tax); applied int Australia: DKLR Hlding C (N 2) Pty Ltd v Cmmissiner f Stamp Duties (New Suth Wales) (1982) 149 CLR 431 reasning has been criticised as being uncnvincing and based n plicy cnsideratins s11(1)(a) applies nly t land nt t persnalty t the creatin f an interest as well as a dispsitin t all interests (legal and equitable), including leasehld interest: Adamsn v Hayes (1973) 130 CLR 276 (Oral agreement fr mining rights equitable interest mining claim = land lack f writing is a defence) s11(1)(a) n interest in land can be created r dispsed f except by writing signed by the persn creating r cnveying the same, r by the persn s agent lawfully authrised in writing, r by will, r by peratin f law; Requirements f Writing Actual writing an agreement/deed/dcument creating the trust Cntempraneus (at time f transfer) Required by settlr / lawfully authrised agent Failure f writing Dispsitin is vid Persnalty N requirements f Writing The greater includes the less therefre the legal title is being transferred rather than merely the subsisting equitable interest s11(1)(c) des nt apply: Vandervell v Inland Revenue Cmmissiners [1967] 2 AC 291 (Bank hlds shares n trust fr V V directs B t transfer t Charity ptin t repurchase 9

10 granted in favur f R after dividend paid, transferred beneficial interest t avid paying tax ral directin effective but shares held n resulting trust fr V transfer f legal title included transfer f lesser parts ptin nt enfrceable had t pay tax); applied in Australia: DKLR Hlding C (N 2) Pty Ltd v Cmmissiner f Stamp Duties (New Suth Wales) (1982) 149 CLR 431 Exceptins t writing requirements Des nt affect resulting, implied r cnstructive trusts: s11(2) PLA Equity will allw the admissin f ral evidence t prevent the cmmissin f fraud: Rchefucauld v Bustead [1897] (land is being cnveyed t a party as trustee, equity will nt tlerate a party then backing ut f their bligatins because they dn t cmply with the statute) Uncnscinability and part perfrmance: Equity may als intervene where they has been uncnscinability, and part perfrmance 10

11 PROPERTY IS ASSIGNABLE (Sme prperty nt assignable because f statute r public plicy) Public pay The assignment f pay f a hlder f a public ffice is invalid: Arbuthnt v Nrtn (1846) 13 ER 474 Certain cntractual rights Cntract nt breached Where the right is frm a subsisting cntract, the right f the benefit culd be assigned, and the assignment wuld take the benefit f a legal chse in actin Wuld have t cmply with PLA s199 Fine where it isn t fr persnal services: Bruce v Tyler (1916) nt certain; reasns are based heavily n the ratinale fr nt allwing bare rights t litigate t surface Cntract may stipulate that rights aren t assignable: Linden Gardens Trust Ltd v Lenesta Sludge Dispsal Ltd [1994] Cntracts fr persnal services the right t have a persn perfrm the persnal services ught nt t be prejudiced by the substitutin f an assignee Relating t prperty aren t assignable Rights t litigate Verdict is assignable: Gleg v Blmley per Vaughan Williams LJ and Campbells Cash and Carry Pty Ltd v Fstif Ltd [2006] HCA 41 because it is a judgment debt chse in actin If verdict is nt yet reached in actin fr defamatin actin dies with the plaintiff: s 66(1) Successin Act Bare right t litigate Generally cannt be assigned: Glegg v Brmley [1912] 3 KB 474 and Campbells Cash and Carry Pty Ltd v Fstif Ltd [2006] HCA 41 (litigatin funding a class actin) Old apprach where prperty cntains an incidental right t litigate ( bare right t litigate) can be assigned: Dicksn v Burnell (1866) 11 Prblematic flexible definitin & arbitrary distinctin Plicy grunds preventin f Maintenance (= funding f litigatin by a nn-party pecuniary mnetary assistance, withut lawful excuse) and Champerty (= funding litigatin with agreement that there wuld be a splitting f the prceeds f litigatin) cases shuld nly be cntinued by persns wh have an interest, rather than turning litigatin int a cmmdity t prmte equal access t justice Mdern apprach where assignee has a genuine and substantial cmmercial interest in the utcme f the actin assignment valid: Trendtex Trading Crpratin v Credit Suisse [1982] AC 679 (T in litigatin with N fr failure t pay fr gds T assigned t CS (=creditr)

12 assignment t creditr valid but invalid because did s with intentin t reassign fr a prfit) BUT nt if n intentin t prfit by passing n right t uninterested persn fr prfit: Trendtex Trading Crpratin v Credit Suisse [1982] AC 679 (T in litigatin with N fr failure t pay fr gds T assigned t CS (=creditr) fr $800k CS reassigned t B fr $1.1m assignment invalid because did s with intentin t immediately reassign fr a prfit) Prspect f a prfit nt fatal: Brwntwn v Edward Mre Inbucn Ltd [1985] 3 All ER 499 (P suing B (installer) & E (advisr) E settles with P P assigns t E E sues B t recver fr partial liability valid despite ptential fr B t prfit ut f transactin E limited itself t recvery f half f the damages s did nt arise) Prspect f excessive prfit may g twards an inference f an intentin t prfit: Brwntwn v Edward Mre Inbucn Ltd Parties with a sufficient cmmercial interest C-defendants and parties t cmmercial dealings: Brwntwn v Edward Mre Inbucn Ltd [1985] 3 All ER 499 (P suing B (installer) & E (advisr) E settles with P P assigns t E E sues B t recver fr partial liability valid E limited itself t recvery f half f the damages) Creditrs: Re Timthys Pty Ltd [1981] 2 NSWLR 706; Trendtex Trading Crpratin v Credit Suisse [1982] AC 679 (T in litigatin with N fr failure t pay fr gds T assigned t CS (=creditr) assignment t creditr valid but invalid because did s with intentin t reassign fr a prfit) Insurers: Cmpania Clmbiana De Segurs v Pacific Steam Navigatin C [1965] 1 QB 101 (fr mre detail see 3 Certainties) [Intentin t Assign] Settlr must exhibit an expressed r implied intentin t create a trust Intentin must be t create a trust relatinship (as ppsed t ther legal relatinship) Imprtant in bankruptcy cases revcable mandate trust Cmptrller f Stamps (Vic) v Hward- Smith (1936) (beneficiary f will sends letter t executrs allwing t pay mnies t creditrs listed in letter creditrs nt aware letter merely amunted t giving a pwer t pass prperty under pwer f attrney, nt cnferring interest n trust, merely revcable mandate) Indicative f revcable mandate Language f request ( I hereby request yu ) Recipients f mney nt aware Allcatr f mney a residuary beneficiary (= amunt uncertain) Debt trust [see als general ntes] 12

13 Equity lks t the substance, nt the frm Precatry wrds will nt suffice Where left t smene abslutely they are nt a trustee hlding it fr the benefit f thers: Re Williams [Certainty f Subject Matter] [Certainty f Object] 13

14 REQUIREMENTS OF FORM Only relevant if trust by transfer nt by declaratin If by declaratin, trust prperty already in the name f the trustee nly transfer f beneficial interest nt legal interest Frm Required Trrens title land Dependent n registratin: s181 LTA On registratin, the interest is said t be transferred in the lt: s182 LTA Chses in pssessin = Persnal prperty, with a tangible, physical existence Sale must cmply with Sale f Gds Act Gift (Cchrane v Mre) Deliver pssessin (actual r cnstructive) with intentin t give; r Deed f gift Chses in actin: = intangible prperty right, nly enfrceable nly by curt prceedings: Trkingtn v McGee (1920 KB) Legal chse in actin enfrced by cmmn law curts debts, cmpany shares Cmpliance with s199 (legal assignment) r equitable assignment (s200) Equitable chse in actin enfrced by curts f equity interest f a beneficiary under a trust; partner in a partnership Equitable assignment nly (althugh sme HCA authrity that s199 applies: Everett v FCT) Frm Requirements Legal Assignment: s199 Applicable t legal chses in actin where n specific rule = debt = shares specific rule that must be registered: Crpratins Act any debt r ther legal thing in actin Pssibly applicable t equitable chses in actin: Everett v FCT (partnership) = interest f beneficiary under a trust partner under a partnership legal thing in actin refers t any chse in actin which can be assigned includes legal & equitable Sectin refers t a trustee indicating an equitable chse in actin Better view is that it des nt apply t equitable chses in actin: William Barendt v Dunlp Rubber [1906] ( trustee means trustee in bankruptcy) 14

15 T assign in equity nly requirement is intentin t assign: Cmptrller f Stamps (Victria) v Hward-Smith (1936) Hwever, prudent t fllw s199 prcedure will give a purchaser wh gives ntice pririty under the rule in Dearle v Hall (1828) (1) Any abslute assignment by writing under the hand f the assignr (nt purprting t be by way f charge nly) f any debt r ther legal thing in actin, f which express ntice in writing has been given t the debtr, trustee r ther persn frm whm the assignr wuld have been entitled t claim such debt r thing in actin, is effectual in law (subject t equities having pririty ver the right f the assignee) t pass and transfer frm the date f such ntice (a) the legal right t such debt r thing in actin; and (b) all legal and ther remedies fr the same; and (c) the pwer t give a gd discharge fr the same withut the cncurrence f the assignr. Elements 1. Intentin t assign As ppsed t revcable mandate: Cmptrller f Stamps (Vic) v Hward-Smith (1936) 54 CLR 614 [see abve] 2. Prperty sufficiently described: Percival v Dunn (1885) 3. Assignment abslute nt in the way f a charge: Durham Brs v Rbertsn [1898] (eg similarly t ld system mrtgages transfers f bk debts fr security flating charge mre cmmn nw in any case) t ensure at all times that a debtr knws t whm they have t pay Nt a part assignment intentin is that the persn wh has the interest transferred t them can sue n their wn therwise must be jined in any prceedings against the debtr: Re Steel Wing Cmpany, Limited [1921] (if partial equity nly intentin required nt s200) 4. Assignment in writing signed by the assignr (evidentiary) Written ntice t the debtr, trustee etc express ntice must be given t the debtr: Nrman v Federal Cmmissiner f Taxatin r authrised agent: Saffrn Walden Secnd Building Sciety v Raynr (1880)

16 Giving ntice t ne debtr r trustee is sufficient: Ward v Duncmbe [1893] Desn t matter wh gives the ntice n frmal requirements: Llyd v Banks (1868) Change f trustee des nt negate ntice: Re Wasdale [1879] Ntice t prspective trustee nt sufficient Debtr can request t see the assignment t check the validity befre paying: Grey v Australian Mtrists & General insurance C Pty Ltd [1976] 1 NSWLR 669 Until ntice is received, the third party debtr may cntinue t pay the assignr, and nt the assignee (wh has gt the chse in actin): Magee v UDC Finance Ltd [1983] NZLR 438 Where ntice delivered by pst, and it is prperly addressed and psted, receipt f the ntice will be presumed in the absence f cntrary evidence: Watsn v Shepherd [1904] Pririties Generally the first assignment in time will prevail Hwever later assignee will have pririty where: Bna fide purchaser fr value withut ntice (nt a vlunteer) Gives ntice t debtr r trustee (fulfils requirements f s199) same day = same time Dearle v Hall (D assigns t A assigns t B assigns t H (fr cnsideratin withut ntice f A&B) H gives ntice t trustee H has pririty ver A&B) Because s199 prvides expressly that the assignment is effective subject t equities having pririty ver the right f the assignee s the pririties rule applies t chses in actin: Marchant v Mrtn Dwns & C [1901] 2 KB 829 Exceptin applies nly t persnalty, nt t realty: Gresham Life Assurance Cmpany v Crwther [1915] Assignr must wn the prperty he is assigning: BS Lyle Ltd v Rsher [1957] (trustee assigning prperty t mrtgagee mrtgagee cannt gain pririty by giving ntice t beneficiaries) Assignment by deed r gift pssible under s199: Re Westertn [1919] Future chses in actin cannt be assigned under s199 can nly be assigned in equity fr cnsideratin: Nrman v Federal Cmmissiner f Taxatin Assignment in Equity Fallback where Legal chse in actin which can t be assigned at law (eg part f a debt) Must have an intentin t have the interest pass at law: Shepherd v Federal Cmmissiner f Taxatin Cnsideratin is nt required: Nrman v Federal Cmmissiner f Taxatin 16

17 Failed attempt t assign the prperty at law may be saved by s200 (1) A vluntary assignment f prperty shall in equity be effective and cmplete when, and as sn as, the assignr has dne everything t be dne by the assignr that is necessary in rder t transfer the prperty t the assignee (a) even thugh anything remains t be dne in rder t transfer t the assignee cmplete and perfect title t the prperty; and (b) prvided that anything s remaining t be dne is such as may afterwards be dne withut interventin f r assistance frm the assignr. Assignment can be effective in equity where everything that must be dne by the assignr has been dne: s200; Crin v Pattn (cmmn law equivalent) Steps can be taken by thers t cmplete (ie registratin, giving ntice) Still in pssessin f share certificates prbably nt effective: Crin v Patten Assignr must deliver title deed execute transfer etc: Crin v Pattn (wife transferring jint tenancy interest t brther t avid falling back int estate did nt give authrity t bank t deliver up title deed did nt direct slicitr t hld dcuments fr brther rather than herself did nt d everything necessary fr assignment in equity) Assignr must execute transfer pwer f attrney nt sufficient: Milry v Lrd (M L [ P] transfer t L nt executed by M nly n pwer f attrney revked upn death n equitable assignment) Assignment in Equity fr Cnsideratin (Future Prperty) Future prperty can nly be assigned in equity fr cnsideratin: Nrman v FCT (interest) cnsideratin binds the cnscience f the assignee equity regards what shuld be dne as being dne: Talby v Official Receiver; Palette Shes Pty Ltd v Krhn Ability t gain specific perfrmance f the cntract nt required: Hlryd v Marshall (1862) Prperty must be sufficiently described t allw fr identificatin upn its cming int existence: Talby v Official Receiver Nature f rights fr future prperty Merely cntractual discharged by a bankruptcy: s153(1) Bankruptcy Act All debts and liabilities, present and future, prvable in bankruptcy: s82 Better view rights are prprietary as well as cntractual, security ver land, rather than a mere debt. Re Lind [1915] Will survive the bankruptcy: Re Lind [1915] (L assigns future expectancy under will t A then t B (fr cnsideratin) then bankrupt then t C assignments t A&B nt extinguished A&B had pririty) 17