Equity

Summer Session 2009/2010Alysia Debowskialysia@largestprime.net

In today’s class…

The nature of equitable interests Priorities Assignments The writing requirement Exam technique

Questions from last class

Assignment clarification

The nature of equitable interests

Proprietary – rights that can be exercised directly against property

Personal equity – right seek equitable remedies

Mere equity – right ancillary to recognition of an equitable interest

Priorities

1st 2nd Equitable Legal

Equitable 1st unless better equityOR 2nd with notice takes subject to 1st

Legal if for valuable consideration, in good faith and without notice

Legal Legal unless exception 1st in time

Priorities – Torrens Title

1st 2nd Unregistered Registered

Unregistered 1st in time unless postponing conduct

Registered has priority unless exception

Registered Registered has priority unless exception

1st to be registered

Assignments

Conveyancing Act 1919 (NSW) s 12

Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor: Provided always that if the debtor, trustee, or other person liable in respect of such debt or chose in action has had notice that such assignment is disputed by the assignor or anyone claiming under the assignor, or of any other opposing or conflicting claims to such debt or chose in action, the debtor, trustee or other person liable shall be entitled, if he or she thinks fit, to call upon the several persons making claim thereto to interplead concerning the same, or he or she may, if he or she thinks fit, pay the same into court under and in conformity with the provisions of the Acts for the relief of trustees.

The writing requirement Conveyancing Act 1919 (NSW) s 23C

(1) Subject to the provisions of this Act with respect to the creation of interests in land by parol:

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,

(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will,

(c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing.

(2) This section does not affect the creation or operation of resulting, implied, or constructive trusts.

Exam technique

Preparation Planning IRAC Time management Practice

Applying the theory…

Mary and John purchased a house under Torrens title together as joint tenants.

Not long after, Mary was diagnosed as having terminal cancer, and reevaluated her life priorities.

Mary told her former boyfriend Sven that she wanted him to have her share in the house, and handed him an executed memorandum of transfer and a letter to Mary’s solicitor directing her to release the certificate of title.

Mary’s solicitor refused to release the certificate of title to Sven without John’s permission.

Before the issue could be resolved, Mary was hit by a freak bolt of lightning and died.

Is Sven entitled to Mary’s interest in the house?

Next class

Fiduciary Obligations Estoppel in Equity Principles of Australian Equity and Trusts

Chapters 9 & 12