Private Law Exam Notes

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Private Law Exam Notes

CONTRACTS ... 1 Agreement: Offer ... 6 Gibson v Manchester City Council (1979) – no offer, terms too loose. invitation to treat ... 6 Carlill v Cabolic Smoke Ball Company (1892): offer and acceptance through conduct .... 6 Goldsbrough Mort & Co v Quinn (1910) revocation of offer ... 6 MacRobertson Miller Airline v Commissioner of State Taxation (1975): Ticket issue ... Error! Bookmark not defined.

Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953): no an offer Error!

Bookmark not defined.

Mobil Oil Australia v Wellcome International (1998): Unilateral contract ... Error!

Acceptance ... Error! Bookmark not defined.

Crown v Clarke (1927): in unilateral contract, performance must be done in good faith ... Error! Bookmark not defined.

Felthouse v Bindley (1862): silence not acceptance ... Error! Bookmark not defined.

Empirnall Holdings v Machon Paul (1988): acceptance through act. No signature .. Error!

Brambles Holdings v Bathurst City Council [2001]. Whether Reasonable person

concludes acceptance ... Error! Bookmark not defined.

Postal Acceptance Rule → Cases ... Error! Bookmark not defined.

Brinkibon v Stahag (1983). Exceptions to Postal rule - jurisdiction .. Error! Bookmark not defined.

Butler Machine Tool Co v Ex-Cell-O Corp [1979] Battle of Forms... Error! Bookmark not defined.

A meeting of the minds [Dickinson v Dodds] ... Error! Bookmark not defined.

Electronic Transfer Act 2000 NSW ... Error! Bookmark not defined.

UNCITRAL Model Law ... Error! Bookmark not defined.

Consideration ... Error! Bookmark not defined.

Essential elements ... Error! Bookmark not defined.

Roscorla v Thomas (1842) past consideration is not sufficient consideration ... Error!

Difference between past consideration and executed consideration. .... Error! Bookmark not defined.

Australian Woollen Mills v Commonwealth (1954). No contract if policy statement. Lack of certainty – no bargaining process. Conditional Gift ... Error! Bookmark not defined.

Beaton v McDivitt (1987) Consideration must be valuable. Not reliance Error! Bookmark not defined.

Woolworths v Kelly (1991). Courts don’t rule on adequacy of consideration ... Error!

Foakes v Beer (1884) 6mth installments ... Error! Bookmark not defined.

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Wigan v Edwards (1973) The Existing Legal Duty Rule Defined: promise to perform an existing duty is no consideration ... Error! Bookmark not defined.

Pinnel’s Case: installments ... Error! Bookmark not defined.

TA Sundell & Sons v Emm Yannoulatos (1955). Application of Existing Legal Duty Rule – increase in price not consideration ... Error! Bookmark not defined.

Exceptions to the existing legal duty rule: ... Error! Bookmark not defined.

Williams v Roffey Bros (1991). Fresh consideration – exception to part-payment ... Error!

PROBLEMS WITH THE WILLIAMS PRINCIPLE: ... Error! Bookmark not defined.

Musumeci v Winadell Pty Ltd (1994) Williams v Roffey apply only if performance worth more to the modifying party ... Error! Bookmark not defined.

Pau On v Long (1980) Promises made to third party count as consideration ... Error!

Intent to Create Legal Relations ... Error! Bookmark not defined.

Ermogenous v Greek Orthodox Community (2002). Presumptions = intent... Error!

Banque Brussels Lamberet v Australiuan National Industries (1989). Letter of comfort as contractual promise ... Error! Bookmark not defined.

Todd v Nicol (1957) intention between family members .. Error! Bookmark not defined.

Shahid v Australian College of Dermatologist (2008) if a party pays, obvious they have intention ... Error! Bookmark not defined.

Administration of PNG v Leahy (1961) Contract vs policy – same as Aus Wool ... Error!

Masters v Cameron (1945): Preliminary Agreements! ... Error! Bookmark not defined.

CERTAINTY ... 7 Agreements to agree ... 7 Council of Upper Hunter v Aus Chilling and Freezing (1968) Certainty- If provision is capable of meaning it will not be void ... 7 Biotechnology Australia v Pace (1988) There is no reasonable benchmark ... 7 Whitlock v Brew (1968). No intent because no reasonable terms/standards. Also

severance ... 7 Hall v Busst (1960) standard of reasonableness can be applied if no completeness or certainty → NOT land ... Error! Bookmark not defined.

United Group Rail Services v Rail Corporation NSW (2009) ‘good faith’ negotiations are enforceable ... Error! Bookmark not defined.

Illusionary Promises (Certainty) ... Error! Bookmark not defined.

Meehan v Jones (1982) – illusionary if one party has discretion in relation to fulfilment ... Error! Bookmark not defined.

Godecke v Kirwan (1973) Additional terms are ok so long as they are consistent with original contract... Error! Bookmark not defined.

Placer Development v Commonwealth (1969) illusionary if one party has discretion ... Error! Bookmark not defined.

Privity ... Error! Bookmark not defined.

Coulls v Bagot’s Executor & Trustee (1967) – Privity rule established .... Error! Bookmark not defined.

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Trident General v Mcniece. Privity does not apply to insurance ... Error! Bookmark not defined.

Port Jackson Stevedoring v Salmond & Spraggon (1978) .. Error! Bookmark not defined.

PROPERTY... 8 Stow v Mineral Holdings (1977) the right to exclude others ... 8 Cowell v Rosehill Racecourse Co Ltd (1937) right to view spectacle not property issue . 8 Possession ... 8 Licenses and third parties ... 8

King v David Allen and Sons, Billposting (1916): only proprietary rights are enforceable against third parties ... Error! Bookmark not defined.

Georgeski v Owners Corporation (2004) A licensee does not have right of possession ... Error! Bookmark not defined.

The Numerous Clausus Principle ‘closed list’ ... Error! Bookmark not defined.

Possession hierarchy ... Error! Bookmark not defined.

People as property ... Error! Bookmark not defined.

Boundaries of Property Law ... Error! Bookmark not defined.

Victoria Park Racing v Taylor (1937) No property in a spectacle. Suffering a loss is not an action. No right to privacy ... Error! Bookmark not defined.

ABC v Lenah Game Meats (2002) Privacy = human dignity Error! Bookmark not defined.

Airspace Cases: ... Error! Bookmark not defined.

Fixtures ... Error! Bookmark not defined.

Belgrave v Barlin-Scott Air-con (1984) difference between fixture and a chattel –

removal damaging the land. Onus of proof on person who makes the claim... Error!

Leigh v Taylor. Case where it was a chattel ... Error! Bookmark not defined.

May v Ceedive (2006) AUTHORITY ON FIXTURE VS CHATTEL: house Error! Bookmark not defined.

Possession of Goods ... 9 TORTS ... 9 Penfolds Wine Case: Trespass and conversion ... Error! Bookmark not defined.

Fouldes v Willoughby. Trespass not conversion ... Error! Bookmark not defined.

Kuwait Airways Corp v Iraqi Airways Co (2002) conversionError! Bookmark not defined.

Grant v YYH Holdings. Limitation period ... Error! Bookmark not defined.

Bailment ... Error! Bookmark not defined.

Hire-purchase agreement: only time bailment transfers ownership Error! Bookmark not defined.

Just Tertii Defence (Third party rights) does NOT apply to chattels . Error! Bookmark not defined.

Jeffries v The Great Western Railway (1856) – can not rely on defence of just tertii ... Error! Bookmark not defined.

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The Winkfield (1902) Possession is good against a wrongdoer and latter cannot set up Jus Tertii unless he claims under it. ... Error! Bookmark not defined.

Biddle v Bond (1865) EXCEPTION ... Error! Bookmark not defined.

Anderson Group v Tynan Motors. Hire-purchase agreement.Breach needs to be serious for action... Error! Bookmark not defined.

City Motors v Southern Aerial (1933) breach of bail ... Error! Bookmark not defined.

Possession of Land ... Error! Bookmark not defined.

Asher v Whitlock (1865) Person who has possession of land has right except for owner ... Error! Bookmark not defined.

Perry v Clissold (1907) possession gives property rights unless superior title ... Error!

Oxford Meat v McDonald (1963) same as previous but adding relativity of possessory title ... Error! Bookmark not defined.

Mabo v Qld (1992) possession gives rise to rights, including right to defend or sell Error!

McPhail v Persons Unknown - use reasonable force to gain possession. Self-help .. Error!

Cases: Reasonable force to eject: ... Error! Bookmark not defined.

Adverse Possession ... Error! Bookmark not defined.

Whittlesea City Council... Error! Bookmark not defined.

Bridges v Bridges [2010] ... Error! Bookmark not defined.

Limitation Act 1969 ... Error! Bookmark not defined.

Limitations of Action ... Error! Bookmark not defined.

Stop the time running ... Error! Bookmark not defined.

Pt 6A of the Real Property Act 1900 ... Error! Bookmark not defined.

Exceptions: ... Error! Bookmark not defined.

Formal Requirements to Land Transfer ... Error! Bookmark not defined.

Acquisition and transfer ... Error! Bookmark not defined.

Consensual Transactions ... Error! Bookmark not defined.

Formal requirements for Contract of Sale of Goods ... Error! Bookmark not defined.

Formal Requirements for Land: legal and equitable interests ... Error! Bookmark not defined.

The Sale Transaction: Real Property – 3 Stages ... Error! Bookmark not defined.

Torrens System ... Error! Bookmark not defined.

Formal Requirements for Passing of Legal Interest ... Error! Bookmark not defined.

400 George St v BG International (2012) Deed case ... Error! Bookmark not defined.

Equitable INTERESTS ARISING OUT OF ENFORCEABLE CONTRACTS ... Error! Bookmark not defined.

Bunny Industries v FSW Enterprises (1982) AUTHORITY on equitable interest – created when there is a specific performance. Timing of SP when there is a breach ... Error!

Equitable Interest ... Error! Bookmark not defined.

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Tanwar Enterprises v Cauchi (2003). Time is ‘of the essence’ ... Error! Bookmark not defined.

Fuentes v Bondi Beachside 2016 uncompleted contract = equitable interest ... Error!

Lysaght v Edwards (1876) - liability between sale and conveyance at common law

PRIOR to legislation ... Error! Bookmark not defined.

Walsh v Lonsdale (1882) Agreement to lease is different to lease (confirms bunny) ... Error! Bookmark not defined.

Chan v Cresdon (1989) only when the lease is registered is there enforceable guarantee ... Error! Bookmark not defined.

Formal Requirements for Land Transfer ... Error! Bookmark not defined.

Old System ... Error! Bookmark not defined.

Torrens System ... Error! Bookmark not defined.

Part Performance ... Error! Bookmark not defined.

The equitable doctrine of part performance ... Error! Bookmark not defined.

Mason v Clarke (1955) no written contract = no specific performance. However, part performance. Profit a prendre ... Error! Bookmark not defined.

McBride v Sandland (1918) elements of part performance. Family not PP ... Error!

Steadman v Steadman (1976) Acts of part performance must on the balance of

probabilities, point to the existence of a contract ... Error! Bookmark not defined.

ANZ v Widen (1990) commercial context. Application of McBride. Conduct can’t be explained by other reasons ... Error! Bookmark not defined.

Theodore v Mistford (2005) Part performance as actions as guarantor would not be done without a contract ... Error! Bookmark not defined.

Maddison v Alderson (1883) PP essentials: a party to an oral agreement performs an act to their detriment. Family not PP ... Error! Bookmark not defined.

Regent v Miller (1976) Family is PP because payment of mortgage Error! Bookmark not defined.

Estoppel ... Error! Bookmark not defined.

Definition and Elements ... Error! Bookmark not defined.

Estoppel by conduct ... Error! Bookmark not defined.

Estoppel by Representor ... Error! Bookmark not defined.

Equitable Estoppel ... Error! Bookmark not defined.

Waltons v Maher (1988) HC accepted promissory (not land) and proprietary (land) are from the same principle. Promissory estoppel can apply to future conduct ... 10 Jorden v Money (1854) outlines proprietary and promissory ... 10

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Inward v Baker (1965) QB outlined the elements of estoppel ... 10 Crabb v Arun District Council (1976) Proprietary and promissory estoppel case ... 10 Je Maintiendrai v Quaglia (1980) promissory estoppel case. Up to the discretion of judges ... Error! Bookmark not defined.

Promissory Estoppel as a defence ... Error! Bookmark not defined.

Remedies ... Error! Bookmark not defined.

Silovi Pty Ltd v Barbaro (1988) (Priestley JA) ... Error! Bookmark not defined.

Austotel v Franklins Self-Serve (1989) corporate application. If two parties are still negotiating, there could not a reliance ... Error! Bookmark not defined.

Cobbe v Yeoman Row Mgt (2008) if still negotiating, then assumption they will enter into a contract has not been reached ... Error! Bookmark not defined.

Commonwealth of Aus v Verwayen (1990) Court (unfairly?) chose to make RECTIFY DETRIMENT, not to make good on the assumption... Error! Bookmark not defined.

Giumelli v Giumelli (1999) court did not follow previous case. To make good

assumption, but if there is mitigating factor, courts order monetary damages ... Error!

Delaforce v Simpson-Cook (2010) elaborating on Guimelli Only look at mitigating factor after established estoppel to decide remedy ... Error! Bookmark not defined.

W v G (1996) Detriment specifically to the plaintiff ... Error! Bookmark not defined.

Agency ... Error! Bookmark not defined.

Ostensible authority ... Error! Bookmark not defined.

Crabtree Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing (1975) ... Error! Bookmark not defined.

Weihuan notes on Crabtree ... Error! Bookmark not defined.

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CONTRACTS

Agreement: Offer

• A Manifestation of willingness to enter into a bargain

• A proposal by a party to enter a contract on certain defined terms

Gibson v Manchester City Council (1979) – no offer, terms too loose. invitation to treat

• Rule: Look to the ordinary meaning of the language in the alleged offer to determine whether the correspondence is part of the negotiations or a formal offer

• Council agreed to sell house to Gibson if he completed form. Gibson did but council switched to Labour who denied binding contract.

• Trial judge said contract

• Appeal Judge said terms too loose for an offer

Carlill v Cabolic Smoke Ball Company (1892): offer and acceptance through conduct

• Rule: Notice of acceptance may occur with notice of performance of the condition

• The defendants manufactured a device called a ‘Carbolic Smoke Ball’, which was claimed to prevent colds and influenza.

• The defendant claimed in an advertisement that a ‘₤100 reward will be paid…

to any person who contracts the increasing epidemic influenza, or any disease caused by taking cold, after having used the ball three times daily for two weeks.’

• The trial judge held that the plaintiff was entitled to recover the ₤100. The defendant appealed.

Goldsbrough Mort & Co v Quinn (1910) revocation of offer

• If there is valuable consideration in the offer then the offer is binding per the terms of the offer

- i.e. An option for given value is not revocable

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CERTAINTY

Agreement must be certain and complete

• Incomplete if parties fail to reach an agreement or decide matter should be reached in future agreement

• Uncertain if terms too vague or ambiguous

• Illusionary if contract gives promised unfettted discretion

Agreements to agree

• If the agreement is silent in relation to an essential term, or provides that the parties will reach agreement on that term in the future ➔ NO BINDING CONTRACT as they are incomplete.

Council of Upper Hunter v Aus Chilling and Freezing (1968) Certainty- If provision is capable of meaning it will not be void

• Council purchased electricity in bulk freom generating authority

• Agreement provided for automatic rates changes

• Agreement allowed for certainty as ‘suppliers cost’ is not ambiguous nor vauge

→ you can still interpret costs of supplier

Biotechnology Australia v Pace (1988) There is no reasonable benchmark

• Where relevant provisions are unacceptably vague and uncertain, or apparently illusory, such a standard must be of sufficiently and acceptably analogous, and must not contradict the intentions of the parties

• Dr Pace entered into employment contract but the terms were ambiguous

• Kirby: not really a standard that could be used, there are too many elements

• McHugh: no reasonable benchmark

• Hope: applied reasonable in different ways and said no uncertain

Whitlock v Brew (1968). No intent because no reasonable terms/standards.

Also severance

• Contract for sale of land, including Shell petrol station

• Sold on condition that purchaser would grant lease to Shell

• Contract void for uncertainty. Parties had no intention on agreement upon sale which entitled purchaser to have land without lease from Shell

- Too important to be severed

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PROPERTY

• The right to have or exclude others

• Right to sell or dispose

• Owner has title document

Stow v Mineral Holdings (1977) the right to exclude others

• Whether someone in a park has a property right

Cowell v Rosehill Racecourse Co Ltd (1937) right to view spectacle not property issue

• Cowell went to see races but was ejected. Tried to sue them for assault

• The ticket issued is not a right to an equitable claim

• Right to see spectacle not a property issue

Possession

• Doesn’t have to be owned or physical

• Right to exclude

• Determines who has property rights

• Essential

• Difference between occupancy and possession

Licenses and third parties

• If it is accepted that a contractual license may be irrevocable by the licensor, at least in certain circumstances, it follows that the licensee has some limited property right in the land

• But the measure of a full proprietary interest is generally considered to go beyond this: it is established not just by whether it is specifically enforceable against the grantor, but can also be enforceable independently against third parties

- (i.e. a licence doesn’t confer full proprietary interest – correct measure is whether the proprietary interest is independently enforceable against 3^rd parties)

- If the licence is so enforceable, it has assumed a more enduring proprietary character

▪ Transformed from a right against an identifiable person into a right over the thing i.e. the land itself

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Possession of Goods

Steps to figure out:

1. Who has a claim over the chattels?

2. What kind of claim

3. What kind of defence can counter-party raise?

Right to claim does not come from ownership

Person who has possession has claim against the whole world except whoever has a better title

Types of possession:

• Actual possession

• Hire-purchase

• Contracts for sale of land

• Where something is lost TORTS

(Protect possession rather than title or ownership of goods) TRESPASS • Interference with plaintiff’s actual possessions

• Actionable without proof of damage

• Non owner who was in actual possession at the time of the taking can sue in trespass, while an owner who was not in actual possession either personally or through the custody of a servant, agent or bailee at will cannot (Penfolds Wines Pty Ltd v Elliot (1946).

CONVERSION • In actual possession of the goods at the time of the wrong or had an immediate right to possession. Title to sue depends on right to possession, not proof of absolute ownership

• Intentional denial of plaintiff’s dominion over the goods.

‘Conversion consists of a positive wrongful act of dealing with goods in a manner inconsistent with the rights of the owner’

(Maynegrain Pty Ltd v Compafina Bank (1984)).

• ‘The delivery of goods to a third party with the intent to pass ownership, or even possession, constitutes conversion’. (Cook v Saroukos (1989)).

• Necessary to show a degree of use amounting to employing goods as if they were one’s own (Kuwait Airways Corp v Iraqi Airways Co (2002)).

DETINUE • Plaintiff was in actual possession or had an immediate right to possession at the time of the wrong

• Defendant wrongfully retains the P’s goods following P’s lawful demand for their return.

• P need not prove title or ownership but the right to possession must derive from some propriety or possessory interest in the chattel (Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995)).

• Elements for detinue will usually ground an action in conversion.

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Waltons v Maher (1988) HC accepted promissory (not land) and proprietary (land) are from the same principle. Promissory estoppel can apply to future conduct

• Demolished building, started construction, decided not to continue. 40%

complete

- Found out in Dec they didn’t want to complete, only informed Waltons in Feb

• Walton’s knew construction was happening but had not signed, can it extend to future contracts? YES

• Promissory estoppel can apply to future conduct or representations (promises) – Mason Cj, Wilson J and Brennan J

• on the basis of basic assumption in the way that the other party has relied on the assumption, it would be unjust if promissory party could retreat

• Walton should not be allowed to retreat from representation. This would be unconscionable

- Knowing that there was demolition and building but still silence - However, not signing the contract was not unconscionable

• HC also consolidated promissory and proprietary

Difference between common law and estoppel is looking at future agreements

Jorden v Money (1854) outlines proprietary and promissory

• A promise or representation as to future conduct could only be be binding by way of contract

• 2 exceptions:

- proprietary - promissory

Inward v Baker (1965) QB outlined the elements of estoppel

• proprietary claim

• Mr Baker allowed son to build house on land, dies, wife nominates her kids as trustees, they ask Jack to leave

• Jack wins cause he built the house

Crabb v Arun District Council (1976) Proprietary and promissory estoppel case

• Proprietary and promissory estoppel

• Crabb wanted to divide property and sell portion of it. Built gate to give him access. Then council close gate (there was an easement at pt B but pt B was part of land. Represented that Crabb could use ptB but then changed it)

• Court decided unconscionable to put up gate blocking pt B