LLB270 Chapter Notes - Chapter 2; 5; 7: Settlor, Inter Vivos, Contract
WEEK 8 – GIFTS AND SALES:
Equity Textbook:
Paragraphs [5.1]-[5.49]:
Chapter 5 – The Law of Assignment:
5.1 – Introduction:
oInterest in property can be disposed of in numerous ways
‘disposition’ has been defined as ‘[t]he alienation of property… by one person for the
benefit of another person’ – Concise Australian Legal Dictionary
‘points to a wide concept, extending to any form of assurance, disclaimer or release of
property’ – Giles J, PT Ltd v Maradona Pty Ltd (No 2)
‘is the intention and the result, not the mechanism by which the intention is
fulfilled’
Conveyancing Act s 7 – ‘vesting instrument, declaration of trust, disclaimer, release and
every other assurance of property by any instrument…’
‘assurance’ includes conveyance
‘conveyance’ includes assignment, appointment, lease, settlement or other
assurance
oDisposition can be of the legal or equitable interest
oFuture property vs present property
Future property requires consideration to be validly assigned
Present property can be given as a gift
5.6 – The Meaning and Importance of Assignments of Property:
oTransfer occurs when the owner (assignor) parts with something in circumstances where
the recipient (assignee) receives the thing previously held by the assignor
Assignor no longer has any interest in the property
oIntention is a crucial aspect
Intention of the assignor must be that after assignment they no longer hold any
interest
EXCEPTION: express private trust
oRecognised at law or in equity
oNature of the assignment is important
Crucial in the context of competing priorities
Legal – assignee obtains a legal interest
Equitable – assignee obtains an equitable interest
Validity of assignments (legal & equitable) is important in the creation of express
private trusts
oSome limitations on assignments are the result of statutory provisions, or public policy
reasons
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5.11 – Assignments at Law:
Valid legal assignments depends on the type of property being assigned
o5.12 – Land:
5.13 – Old System Title Land:
Must occur by delivery of a deed of conveyance from the assignor to the assignee
– CA s 23B(1)
5.14 – Torrens Title Land:
Breskvar v Wall – Torrens title is ‘a system of title by registration’
Interests or assignment is not valid until the transfer is registered
o5.15 – Goods:
Uniform sales of goods legislation are in place in all jurisdictions
Assignment of goods at all:
Delivery of goods with an intention to give, OR
Deed of gift
o5.17 – Debts and Choses in Action:
Choses in action – ‘personal rights of property which can only be claimed or
enforced by action, and not by taking physical possession’ (Torkington v Magee)
May be legal or equitable
‘[A] chose in action is property, something capable of being turned into money…
[W]hat is assigned is the chose, the thing, the debt or damages to which the
assignor is entitled. The existence of a remedy or remedies is an essential
condition for the existence of the chose in action by that does not mean that the
remedies are property in themselves, capable of assignment separately from the
chose.’ – Lord Hoffman, Investors Compensation Scheme Ltd v West Bromwich
Building Society
Originally, choses in action were not assignable – Lampet’s Case
Consideration of mercantile convenience and necessity led equity to recognise the
assignment
oNo particular form of words was necessary
oRequires that the assignor do all that they can do to complete the transfer
Equity generally required the presence of both assignee and assignor during
litigation
oAssignor is bound by the result and precluded from suing
oProvides the assignor with the opportunity to dispute the assignment
oFailure to join proceedings does not mean they’re a nullity
Court will generally require the assignor to be joined before a matter
goes to hearing
‘[A]ny outstanding assignor must be joined before the final judgement
can be obtained by the assignee, but that has been held not to be
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necessary where the assignee is seeking interlocutory relief.’ –
Equuscorp Pty Ltd v Haxton
oAssignor as a company that is deregistered or where it is subject to a winding
up petition –joining the assignor to the proceedings is unnecessary (Re Steel
Wing Company Ltd)
Assignor seeks to enforce the original debt on behalf of the assignee
oAssignor can act as a trustee for the assignee, if they both agree, OR
oAssignee must be joined to the proceedings
o‘The assignor can sue as trustee for the assignee if the assignee agrees, and,
in that event the claim must disclose the assignor’s representative capacity.
In any other case, the assignor must join the assignee, not because of a mere
procedural role but as a matter of substantive law in view of the insufficiency
of the assignor’s title.’
Development:
oCommon law came to recognise that the assignee was able to sue in the
assignors name on debt or choses in action – Norman v Federal
Commissioner of Taxation (1963)
oConveyancing Act s 12 – governs the legal assignment of choses in action
‘a debt must be regarded as a piece of property capable of legal
assignment in the same sense as a bale of goods’ – Fitzroy v Cave
Assignment by s 12 allows for unilateral action from the assignor
This was the aim of the amendment
Assignment via s 12 – assignor cannot sue the debtor or other person – Read
v Brown
Does not prohibit assignments in equity
Not all choses in action are capable of assignment – Torkington v Magee
‘I think the words ‘debt or other legal chose in action’ mean ‘debt or right
which the common law looks on as not assignable by reason of its being a
chose in action, but which a Court of Equity deals with as being assignable.’’
5.32 – Requirements for Legal Assignments of Debts and Choses in Actions:
oFor assignment pursuant to s 12 of Conveyancing Act the following must be
present:
Intention to make an immediate and irrevocable transfer
Assignment must be absolute
Assignment must be in writing and signed by the assignor
Express notice must be given to the debtor or other person in writing
5.33 – Intention:
oMust be clear intention to make an ‘immediate and irrevocable transfer’ –
Norman v Federal Commissioner of Taxation
oNot sufficient to merely authorise payment to someone else
5.34 – The Assignment must be Absolute:
oEnsures the debtor is protected
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