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5. Unascertained/future by description: P on unconditionally appropriated (delivery) to k with assent NEMO DAT EXCEPTIONSS23: nemo dat (unless owner's conduct Brighton Panelbeaters Act is intentional, although wrongdoing itself estopps). S27(1) A ? B, keeps possession ? C (good faith no notice), B's accidental. 2. DIRECT, WRONGFUL INTERFERENCE No damage is authority deemed. Mitchell v Jones: P not from sep transaction. s3(1) required; If W found car simply moved, could still have sued. 3. Mercantile Law Act: MA in possession w owner's consent ((2)PLAINTIFF REQUIRES POSSESSION - Pensfold Wines v Elliot. 4. withdrawal requires notice (4) consent presumed) sells in ordinary REMEDIES AT LARGE - Thurston v Charles course of business of MA to BFPFVWN, deemed expressly authorised. Actual +consequential damage, injunction, but De Minimis Non Curat Ron McDonald Ltd: A&J acting as MA despite selling on own behalf, Lex consent to possess enough (presumed, need not be writing). RISK CONVERSION: 1. RIGHT TO IMMEDIATE POSSESSION, 2. DURING SALES s22:(1) passes pf with P unless otherwise agreed. DEALING/INTENTIONAL ACT Voluntarily performed act, of causing If party's fault causes delay in delivery + loss, liable. (2)Bailee duty conversion with oblique intent (smuggling using borrowed car remains. s8 Perish b4 k entered without S's knowledge, k void. s9 Moorgate Mercantile Co Ltd v Finch) 3. DEALING INCONSISTENT Perish after k but before risk passes, void. Perish: lose 'merchantable WITH RIGHT TO IMMEDIATE POSSESSION "so extensive an character': Asfar. Qualities material to k lost, repair impractical encroachment" on rights as to exclude use and possession, contrasted Oldfield Asphalts. w lesser acts of interference - Kuwait Airlines v Iraqi Airways Dealing bona fide w goods at request of possessor, excused for actions excusable if done by authority of possessor (e.g. returning possession). Express trusts require certainty of: intention, subject matter, objects, Changing nature of chattel, negotiating sale - Hollins v Fowler Whether on facts words, conduct (even over time) constitute express Auctioneer advertising, returning possession on failed sale ok - Marq declaration of trust (beneficial Oship: not intention to gift): Paul v
4. REMEDY: FICTIONAL SALE : Value at date of conversion - Kuwait Constance. Airlines Constructive trusts: can only arise if reasonable person in claimant's DETINUE 1. RIGHT TO IMMEDIATE POSSESSION, 2. DEMAND FOR position would have understood it to, otherwise equitable factors (unjust RETURN, 3. UNLAWFUL REFUSAL Refusal lawful if ascertaining ownership enrichment, unfairness, estoppels, unconscionability etc.) sacrifice,
- Hollins 4. DAMAGES Specific restitution is an equitable (discretionary) contribution to property, no expressly separate property arrangements: remedy, not given if unjust. Detinue is a continuing wrong, should be value at Gillies v Keogh + 'trustee' should reasonably expect to yield interest: time of judgment... Salmond J says take value at conversion if D has improved Lankow v Rose.
- Nash DAMAGE TO REVERSIONARY INTEREST 1. Damage Interests: vested: future, non-contingent interest, contingent,
2.Lasting until possession recovered 3.Damage actionable if had been in discretionary. Joint tenancy/tenants in common, life interests (in possession at time. HSBC Rail v Network Rail: if damage was fixed, no right. possession/remainder). RECAPTION Slater v Attorney General: reasonable force lawful if TRUSTEE'S DUTIES - Jointly and severably liable. used to regain possession (Blade v Higgs): doubtful at HC level ? iff Duties of obedience to trust: hold, distribute assets per instrument, possession taken unlawfully (Toyota)/no reasonable alternative (Lloyd evenhandedness b/w beneficiaries (e.g. life B's v remaindermen; Re v DPP). BAILMENT 1. Bor PROVES BAILMENT: Bailee voluntarily Mulligan). Duties of prudent ownership: invest prudently, diligently: taking possession of goods belonging to another - Morris v Martin If Trustee Act 1956: s13A can invest any funds in any property, s13B: by actions/permission, Bee reasonably expected to taken control, must exercise care, diligence and skill 'prudent person of business' enough, even if not strictly voluntary - Southland Hospital Board v would in managing another's affairs. S13C: if trustee in profession, Perkins Once proved, Bee's duty of reasonable care arises. 2. Bor diligence of prudent person in that profession. 13D: can vary. 13E: PROVES DAMAGE 3. DEFENCE: Bee's REASONABLE CARE factors. 13M: Court considers strategy. 13Q: set off gains from losses Consider risks of property, what can reasonably be done to protect - (overall growth). Re Mulligan: invstd in mortg only, neglected duty. Skyway If res ipsa loquitur applies (damage itself shows no duty), Bee Applying to Court for directions: s66. Duties of loyalty: must give adequate explanation - Perkins Care which a careful and Not to benefit from trust (Pett v Robinson), but s72 Court may diligent man would exercise in custody of his own chattel of like compensate with just and reasonable allowance. T can't sell TP to self character and in like circumstances: Conway v Cockram Motors unless sale is absolutely necessary, T offers more than anyone else, T Against all (reasonably foreseeable) forms of damage, not simply applies to Court, otherwise vulnerable(Campbell v Walker). T must meeting industry standard - Conway Cost is a consideration - Skyway show best offer, but need not market. T should step down, timing
4. DEFENCE: NO CAUSATION FROM LACK OF CARE Even if took relevant. (Patchett v Williams) T can't enter engagements in potential reasonable care, damage still would have occurred - Conway 5. conflict of interest: Aberdeen Ry. Co. Can't enter business that DEFENCE: Bee SHOWS LIABILITY WAS LIMITED If no express conflicts with beneficiaries (yacht agent) Thomson v Allen. T can't put clause, infer agreement from circumstances (aware of circumstances, self into potential conflict of interest and duty, even if T couldn't have regular customer - maybe infer) - Skyway. Limited liability clauses are bought property itself, can't use TP to personal advantage without read contra preferentem - Perkins SUB-BAILMENT S-Bee owes informed consent of B's: Phipps v Boardman. duty to h-Bor if aware a h-Bor exists - Morris v Martine Sub-Bee's PERSONAL REMEDIES AGAINST TRUSTEE Compensate liability to h-Bor limited if h-Bor expressly/implicitly consented to terms loss: Re: Mulligan. If 'fraud of power', 'deliberate, pre-conceived of sub-bailment (e.g. not if unusual). If head-Bor knew of terms of sub- scheme' for object outside of trust document (esp if know not lawful), bailment, or consented to sub-bailment on any terms - Pioneer should s66: Wong v Burt. Container Remedies against third parties Bee may sue in Account of profits: but allowance for skill Phipps. Onus on T to show trespass/conversion for full damage to chattel, but holds on trust for Bor allowance for skill, moral wrongdoing immaterial Chirnside v Fay. value above the value of Bee's interest - The Winkfield . Defence: if breach and failure to apply to court 'honest and reasonable' GIFTS 1. EXPRESSION OF INTENTION BY DONOR TO GIFT By Court may relieve of some/all liability s73. If at beneficiary's instigation, words or conduct, assessed objectively at time of delivery - Rowland v B's interest may be impounded as indemnity for T who is personally liable s74. Power to terminate: If B's are all age of majority, sound mind, Stevenson. 2. ACCEPTANCE BY DONEE 3. DELIVERY : At least symbolic act - Williams v Williams, giving keys sufficient - Rowland v can terminate by unanimous decision Saunders v Vautier. Stevenson PROPRIETARY REMEDIES AGAINST TRUSTEE - TRACING Unmixed Claims: re: Hallet: take property bought w TP, or enforce charge. P appreciated: claim to whole. P depreciated: charge WHEN PROPERTY PASSESSOGA s18: if unascertained, P
+ personal remedy. 3rd party volunteer holds on constructive trust, doesn't pass. s19(1) P transfers when intended ((2) k, circumstance, BFPFVWN: B loses equitable title. Simple mixed claims: First in, first conduct): Isaac: contract anachronistic ?conduct. S20 RULES: 1. out: Clayton's Case. T presumed to be honest, spend own money first: Unconditional, specific, deliverable:P on k. 2. Specific, make re Hallet. Lost expenditure ? T personally, expenditure in property ?B deliverable: P when deliverable, notice ?B 3. Specific, deliverable, test regardless of timing: In re Oatway. BUT funds cannot be traced above for price: P when tested, notice ?B. 4. Goods delivered on lowest value of account since T funds entered: Roscoe v Winder. approval/adoption: P on retention + approval or fixed/reasonable time. Funds ? Property, B's option: proportionate share (if appreciated) or
Rights as owner of goods
TRESPASS 1. INTENTIONAL, POSITIVE ACT - Wilson v New
Sale of Goods
enforce lien (if devalued): Foskett v McKeown. (Pettyjohn doesn't apply). Complex mixed claims: Funds ? property, B's share pari passu (proportionately): Sinclair v Brougham. Bank accounts: If later funds intact, remove first. FIFO (Clayton's) displaced easily by inference of intention. Search for "least unfair" solution, usually pari passu (unfair to early investors, but they had risk longer): Unit Trust case. North American Rolling Charge most principled, but too expensive, timeconsuming (but if funds treated arbitrarily, result is arbitrary). UK can't reject FIFO, just find exceptions. Even if intention?invest separately, if T actually pooled, presume intention?share common misfortune equally. PP unfair to late investors: Barclow Clowes. Roscoe still applies.
land unaffected (s6) Representative of deceased may request order if otherwise serious injustice (s88 Whyman) Option B: (s61) inherit as under will/intestacy rules. TESTAMENTARY PROMISES ACT 1. Services performed for deceased (broad, in/tangible, beyond what is expected of family Re Welch) 2. Promise of payment on death 3. Nexus b/w promise and service (Re Welch) 4. Promise not wholly fulfilled, not Maori land (TTWMA s106) Court's discretion to grant award 'reasonable in circumstances' (e.g. size, claims on estate). FAMILY PROTECTION ACT Court's discretion to make awards if adequate provision not made for proper 'maintenance and support' of applicants (s4). Applicants (s3): spouse (EM v SL), de facto partner (>3 years PERSONAL REMEDIES AGAINST THIRD PARTIES s4A), children, stepchildren if (right to be maintained [?] partly Re Knowing receipt: Westpac v Savin: receiving trust property with Hilton), parents if right to be maintained + no partner or children. actual/constructive knowledge. Baden types: (1) Actual (2) wilful Williams v Aucutt: 'Support' wider than maintenance, moral claim, blindness (3) reckless failure to make reasonable inquiry Accepted providing comfort/recognition; 10% rule for recognition even if applicant obiter: (4) knowing circumstances indicating fact to reasonable person in need (Henry v Henry) EM v SL: life interest only if disinherits other (5) knowledge obtainable from inquiries a reasonable person would feel claimants entirely. Re Hilton: Maintenance: regular provision to another obliged to make in circumstances. Remedial constructive trust imposed for necessaries/conveniences of life. Not temporary accommodation, Knowing assistance: Royal Brunei Airlines v Tan: 3rd party, not meals from time to time, wanting to make post-mortem gift. Moral trustee, must act dishonestly. Test objectively (not acting as honest obligations don't finish on legal obligations of property settlement, person would in circumstances) considering (separated) widows ok. knowledge/experience/intelligence. Eurotrust International: was knowledge of transaction such to render participation contrary to normally accepted standards of honest Plaintiff's standing (possession) Requires 1. intention to possess conduct? E.g. failure to seek explanation for suspicions. land and 2. exercise of control to the exclusion of others (AG v Hewitt). temporary absence ok: Matchitt. Intention to possess ? terms (right to underlying control, exclude even owner, absolute: Sealink. Licence?
INTESTACY s77 Administration Act. Spouse only: personal chattels, England, differentiate b/w licence for access/occupation (Tugwell), can from residue prescribed sum ($155000), residue ?spouse. claim if necessary to vindicate contractual right to occupation Spouse+issue: pc+ps?spouse, r:1/3 spouse 2/3 issue. Spouse+parents (Manchester Airport). DEPARTURE because in personam/in rem only: pc+ps?spouse, R: 2/3 spouse 1/3 parents. Issue, no spouse: rights (Hill v Tupper, Moore v MacMillan, Sealink). If it is a trend, estate ? issue. Personal chattels s2: articles of personal use owned by resist it. Interference: unjustified direct interference with the land in deceased or to which he was a debtor (PPSA) (taken subject to possession of another, actionable per se voluntary positive act: security), not primarily business articles or money. TTWMA s109: Maori Matchitt. Even if honest and reasonable belief of right to enter: land ? issue in equal portions, spouse has life interest until remarried. Shattock. Damage unnecessary: Ashby v White. By animals Bryant v WILLS Characteristics: ambulatory (revocable), confer no property Macklin Remedy: actual/consequential damages at large Thurston v interest until death, testator must have animus testandi, formalities: Charles, nominal/exemplary damages Cousins v Wilson. Injury to Wills Act s11: writing, signed by testator (acknowledging witnesses) reversion not if fixed: Sinton Damarell pty Action for the recovery of and signed and witnessed by [?]2. s14 if document looks like will, fails land If right to P denied by D. Jus tertii defence Bernard, show better s11, HC can validate will if satisfied shows testamentary intentions, title (not defects) A Jolly, stopped from disclaiming LL Harrison. considering document, evidence on signing/witnessing, intentions, statements of deceased, IF document executed before 1 Nov 2007. Right to exclusive possession of land for a fixed time (rent FAILURE OF GIFTS breach of TTWMA s108 (not issue/blood unnecessary) Fatac. Definitional (fork/spade -Street v Mountford). Valid if terminating on future event identifiable when it occurs (PLA related hapu/whangai (or trustees of) or life interest to spouse). Lack 212), or terminates after 10 years (unless alt date after 10 years of testamentary capacity if misunderstood making a will + effect, specified)?unregisterable. LEASE/LICENCE if: occupier's obligations extent of property in will, moral claims (Bishop). Undue influence. Lapse: B dies before testator ? residue, if residue gift ?intestacy. extensive, not suggested owner retains possession, k restricts rights (pf Abatement: if will does not provide for debts, gifts abate proportionately would have had them), can right to (be consulted) assign: NZF&G v (residue, general gifts, specific gifts). Ademption: subject matter not in AG. Licence could bind 3rd parties in exceptional circumstances (IDC), estate on death. In re Dorman: money represented fund, changed in with fullest knowledge, purchase for undervalue, transaction not at arms name/form only not substance (same bank unlike Ballantyne's length, inequitable to deny constructive trust arisen: Harvey v trustees), intention irrelevant, but testator's knowledge of facts treated Prangley. as important. COMMERCIAL LEASES An agreement to lease will in equity PROPERTY (RELATIONSHIPS) ACT applies to spouses/civil- create a lease itself Walsh v Lonsdale. When registering, must include unions/de facto partners (s2D): >18, live together as couple terms and conditions (s115 LTA). Implied covenants: 'quiet enjoyment' (Sch3Pt3, no 'substantial interference - Mills), keep property in (Horsefield v Giltrap: factors not definitive) >3 years, not married. condition, not bound to repair natural loss (Sch3Pt3) Short term lease: Short-term relationships (<3 years) not covered unless child or commences <20 days after k, < 1 year (s207 PLA), legal (s209) but substantial contribution and no order ? serious injustice (s85). Choice requires: written notice + certificate of lawyer's informed advice, with 6 unregisterable. SUCCESSION Lease document may ban assignment months after death (s62), B default (s68), irrevocable (s67), Court's subletting absolutely (225), but if not cannot unreasonably withhold discretion to set aside (s69) if choice not free/informed, change of consent, reasonable time (226). Unreasonable to withhold if conditional circumstances + unjust to enforce option, but can't regain distributed on extra payment/unreasonable condition, withheld due to bankruptcy, assets. Relationship propertys8: family home+chattels, property owned legal fees reasonable (227). Selling Registered lease binds (s62), 'no jointly/in common, owned pre-relatinship acquired in contemplation of registration' clauses valid (s54 PLA) Post 1st Jan 2008: T2,T3 (240), relationship and intended for common use, property acquired after L2, L3 (231-233) bound by all covenants of lease during tenure. T's marriage began. Family chattels: articles of household/family use assigning remain liable for breaches afterwards (241) (but statutory (includes cars), excludes business purposes, money, heirlooms (in implied covenant that T2 indemnifies T1 (242). Pre 2008 T1 bound family for generations) and taonga (special significance for Pakeha too: indefinitely, T2, T3 bound only by 'touch and concern the land', T2 has Perry v West) Option A: partner loses right to inheritance unless will no liability post tenure (not in personam) says contrary (s76) or court permits to avoid injustice (s77, e.g. if worse Sub-tenancy: no privity of estate or contract, no relation, not bound by career Re Hilton), relationship property, home and family chattels lease. divided evenly (s11) , before estate is subject to other claims (s78 not CANCELLATION 1.Power to cancel? Statutory implication debts), unless contracted out (s21F) or extraordinary circumstances (Sch3Pt2Cl12) 2.Power triggered? FACTS 3.Exercised correctly?
make equal division repugnant to justice (then Lankow) (s13), Maori Arrears >10 days: notice to cancel (give >10 days, inform rights), not
Trespass of land
Disposing of property on death
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