THE UNIVERSITY OF WESTERN AUSTRALIA
Faculty of Law
Personal Property
LAWS 3355 (Undergraduate)
LAWS 8591 (Postgraduate)
LAWS 9724 (Postgraduate)
2008
Unit Outline
CONTENTS
INTRODUCTION .................................................................................................................................. 2
STRUCTURE OF THE COURSE ........................................................................................................ 2
LEARNING OUTCOMES .................................................................................................................... 2
ASSESSMENT........................................................................................................................................ 2
EXPECTATION OF STUDENTS ........................................................................................................ 6
CHARTER OF STUDENT RIGHTS AND RESPONSIBILITIES ................................................... 6
GENERAL RULES, POLICIES AND PROCEDURES FOR ALL LAW UNITS ........................... 7
CONTACT DETAILS............................................................................................................................ 8
TEXTBOOKS ......................................................................................................................................... 8
READING LIST AND COURSE OUTLINE ..................................................................................... 11
Session 1: What is “property”? ....................................................................................................... 11
Session 2: Property rights created by consent: Part 1 ................................................................... 13
Session 3: Property rights created by consent: Part 2 ................................................................... 15
Session 4: Property rights created by consent: Part 3 .................................................................. 16
Session 5: Property rights created by wrongdoing ........................................................................ 18
Session 6: Library research session................................................................................................. 19
Session 7: Other ways creating personal property: Part 1 ........................................................... 20
Session 8: Recent cases ..................................................................................................................... 21
Session 9: Other ways creating personal property: Part 2 ........................................................... 22
Session 10: Wrongs of interference ................................................................................................. 23
Session 11: Vindicating property rights ......................................................................................... 24
Session 12: Recent journal articles .................................................................................................. 25
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INTRODUCTION
An understanding of the law relating to personal property is one of the most important
aspects of the law. “Property” is a compulsory course but at most law schools
(including UWA) the course focuses primarily on “real” property or land law.
Elsewhere aspects of personal property are dispersed throughout law degrees. Often
vital parts are omitted entirely. Examples of personal property law that are
encountered every day by practitioners but often not considered in any detail at law
school outside this course are rights to specific performance, bailment, rescission,
mixing, tracing, claiming, property torts (conversion, detinue, trespass to chattels) and
many security rights including pledges.
But there is far more to this course than filling a huge practical void in the law
curriculum. An understanding of the nature of property, and particularly personal
property, provides an understanding of the structure of private law. The teaching and
discussion of personal property in this course will be done through discussion and
interaction and the structure of personal property will be explained through the use of
example and illustration.
STRUCTURE OF THE COURSE
The course is divided into three parts.
PART I: The Nature of Property and Property Rights
PART II: Creation of Personal Property Rights
PART III: Protection of Personal Property Rights
Classes will be held in the Moot Court from 10 am to 3.45 pm on the following days:
Thursday 24 July 2008
Friday 25 July 2008
Saturday 9 August 2008
Saturday 23 August 2008
LEARNING OUTCOMES
At the conclusion of this unit students should be able to do the following:
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distinguish between the different types of personal property rights and how
they are created and protected;
integrate their knowledge of property, torts, trusts, contract and equity; and
demonstrate the ability to conduct independent research on personal property
issues.
ASSESSMENT
Assessment will be by means of three assignments. A brief summary of the
assignments is below followed by some detailed information to assist you in
completing your assignments. The detailed information also explains how the
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assignments are linked to the learning outcomes and the criteria used to assess the
assignments.
Assignments should be typed where possible and submitted with a cover sheet
downloaded from the unit webpage where there is a link with full instructions. Please
hand in the assignment to the appropriately labelled box located outside the Law
School office. The Out of Hours Assignment Box is in the Law Library. The
barcoded assignment cover sheet is scanned and your student ID number recorded in a
spreadsheet. You will receive an email receipt. Please alert the Law School office if
you have not received an email by the end of the following day the assignment is due.
All assignments are due at 12 noon on the nominated day.
Assignment 1: Case note (1,200 words)
Students are required to write a case note on any case related to a personal property
issue. The case chosen for the case note does not need to be a case on the reading list.
Assignment 2: Research essay (3,000 words for undergraduates and 5,000 words
for postgraduates)
Students are required to undertake independent research on some aspect of personal
property on a topic of their choice.
Assignment 3: Case note (1,200 words)
Students are required to write a case note on any case decided during 2007 or 2008
related to a personal property issue.
Component
Weight
Due date
Return date
1 Assignment
20%
Wednesday August 13,
12 noon
Saturday August
23
2nd Assignment
60%
Monday September 22,
12 noon
Tuesday October
14 (9:00am-2:00pm)
3rd Assignment
20%
Friday October 31,
Available after
results announced
in December Any
st
12 noon
Tuesday (9:00am2:00pm)
Supplementary Assessment
No supplementary assessment is available for postgraduate students in this unit. For
undergraduate students supplementary assessment is not available in this unit except
in the case of a bachelor's pass degree student who has obtained a mark of 45 to 49
and is currently enrolled in this unit, and it is the only remaining unit that the student
must pass in order to complete the course.
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INFORMATION ON ASSIGNMENTS
Case notes
There is no set format for a case note but students should read some published case
notes to obtain an idea of the style and content of typical case notes. As a suggestion
case notes could be structured as follows:
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Title: A clever title to a case note can give a case note a positive start.
A short introduction that outlines the key issue in the case and/or some short
statement about why the case is important.
A short summary of the facts. Only outline the facts that are relevant. The
summary should be brief. Do not waste your word limit outlining the facts in
great detail.
Explain the reasoning of the judge/s in the case and analyse that reasoning
providing your comments on the case. This is where you make your original
contribution to the case note. Say what you think about the case, why it is
important, the implications of the case and so on. This is the most significant
part of the case note.
A short conclusion.
Note: Use footnotes.
For footnotes you may use any style guide. You might like to use the UWA style
guide which can be found at:
http://www.lawreview.law.uwa.edu.au/law_review/style_guide
Choose your case carefully. You will need to choose a case that you have something
to say about. A case note is not a summary of the case. A case note must include
analysis and comment.
Learning outcomes and criteria for assessment of case notes
Students are expected to demonstrate one or both of the following learning outcomes
in their case notes.


how personal property rights are created or protected; and/or
integrate their knowledge of property, torts, trusts and equity to identify any
inconsistencies in the cases concerning proprietary remedies.
You do not need to analyse a case that covers all of these matters. You could choose a
case that just focuses on the protection of property rights or a case that shows the
interaction between contract and trusts or property and trusts.
The following criteria will be used in assessing case notes:
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clear legal writing;
original comment and analysis of the case;
focus on the learning outcomes;
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incorporation of comment and analysis on other cases that assist in making
original comment; and
presentation, structure and style.
Research paper
Your research paper should include all of the following:
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Title
A brief abstract of about 100 words
Introduction
Main part of the paper. Use appropriate headings to provide structure.
Conclusion
A research paper must have substantial original material. You will need to conduct
research of cases, books, journal articles and case notes. Do not include lengthy
extracts from these materials. You will no doubt include extracts from your research
material but this should not be overdone. Include key extracts where appropriate.
Your research paper must have a central thesis or argument. You must argue for a
particular point of view. For example you might disagree with an argument in a
published paper of the approach of a judge in a particular case. You should outline the
position taken by that author or judge and then explain your argument and support
your argument where appropriate by reference to cases and other journal articles.
Students from this course in previous years have published their research papers and
case notes. You may wish to look at these published papers as outstanding examples
of what can be achieved in this unit. The papers are:
 Jeremy Birch, ‘Breach of Confidence: Dividing the Cause of Action Along
Proprietary Lines’ (2007) 81 ALJ 338.
 Daniel Vujcich, ‘Money for Nothing and Stocks for Me: A Case of Property
Law in Dire Straits?’ (2007) 25 C&SLJ 268.
 Daniel Vujcich, ‘You Can’t Always Get What You Want (But if You Try,
Sometimes You Might Find You Get What You Deed’ (2007) 25 C&SLJ 209.
 Daniel Vujcich, I'll be back: Unresolved issues in assigning termination clauses
– Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2007) 35
ABLR 140.
Learning outcomes and criteria for assessment of research paper
Students are expected to demonstrate the following learning outcome in their research
paper.

demonstrate the ability to conduct independent research on personal property
issues.
When choosing your topic be aware of the word limit.
The following criteria will be used in assessing research papers:
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clear legal writing;
substantial original comment and analysis;
focus on the learning outcome;
ability to draw on different parts of the course
ability to find and use material not on the reading list; and
presentation, structure and style.
EXPECTATION OF STUDENTS
The reading list has been deliberately kept from being too heavy. The emphasis in
this course is upon analysis and thought. Students are expected to do the reading
before each class and to have considered and critiqued the area in which the seminar
will be given.
To provide some guidance on the reading list I have marked each item on the reading
list with one or more of the following codes.
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
To prepare for each seminar it is expected that you will read all items marked E. You
are strongly encouraged to read as much of the remaining material as possible. Some
of the material will be more useful if you propose to write on that topic for your
research paper.
Most of the material on the reading list is available on the university’s course
materials online (CMO). Some material cannot be included on CMO because of
copyright restrictions. For example, there are restrictions on the number of pages that
can be copied from a single book. If materials are not on CMO please refer to the
books that have been placed on the reserve collection in the library. Postgraduate
students should look for material on CMO under LAWS3355.
You log on to CMO through the library website using the details on your student card.
If you have any problems with CMO ask the library staff for assistance.
CHARTER OF STUDENT RIGHTS AND RESPONSIBILITIES
The Charter of Student Rights and Responsibilities sets out the fundamental rights and
responsibilities of students and their organisations at UWA. It recognises that
excellence in teaching and learning requires students to be active participants in their
educational experience. It upholds the ethos that in addition to the University's role of
awarding formal academic qualifications to students, the University must strive to
instil in all students independent scholarly learning, critical judgement, academic
integrity and ethical sensitivity. The Charter also recognises that students are central
to a dynamic University community. In doing so, the University recognises the
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importance of student rights, responsibilities and opinion and encourages diversity
within the student body.
For the full text of the charter, please refer to
http://www.secretariat.uwa.edu.au/home/policies/charter
Student Guild contact details
The University of Western Australia Student Guild
35 Stirling Highway
Crawley WA 6009
Phone: (+61 8) 6488 2295
Facsimile: (+61 8) 6488 1041
E-mail: enquiries@guild.uwa.edu.au
Website: http://www.guild.uwa.edu.au
GENERAL RULES, POLICIES AND PROCEDURES FOR ALL
LAW UNITS
The Law School has a range of rules, policies and procedures that apply to all units
unless expressly varied by the unit coordinator. They should be read in conjunction
with this unit outline. A summary of the general rules, policies and procedures can be
found at
http://www.lawstudents.law.uwa.edu.au/index/assessment_information
or in hard copy available from the Law School office, ground floor, Law Link
Building.
As the rules, policies and procedures are updated from time to time, students should
ensure that they consult the latest version. The version applicable to this unit is the
January 2008 edition.
The summary of the general rules covers the following:
 Ethical Scholarship, Academic Literacy and Academic Misconduct
 Academic Conduct Essentials (ACE)
 Equity and Diversity in the Law School
 Use of Inclusive Language
 Students with Special Needs
 Lectopia
 Where to Direct your Enquiries
 Contacting Staff in the Law School
 Assignments:
o How to submit your Assignment
o Obtaining an Assignment Cover Page – the Assignment Cover Page
Generator
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
o Extensions
o Late Submission of Assignments
o Exceeding Word or Page limit
o Handing back and collecting assignments
Assessment:
o Deferred Exams
o Requests for Special Consideration
o Supplementary Exams
o Appeals Against Academic Assessment
o Scaling
CONTACT DETAILS
Dr John Tarrant
Room 2.02
Telephone: 6488 2967
Email tarrant@law.uwa.edu.au
Consultation time:
By appointment
TEXTBOOKS
There are no set texts for this unit. The reading list comprises cases, journal articles
and extracts from a number of books. For ease of reference most items on the reading
list have been included in the online material for this unit. In addition the following
books have been placed on reserve in the law library:
Burrows, A (ed), English Private Law 2nd edn (Oxford University Press,
Oxford, 2007) (346.0942 2007 ENG).
Birks P (ed), Laundering and Tracing (Clarendon Press, Oxford, 1995)
(345.2680941 1995 LAU).
Birks P, Unjust Enrichment (2nd edn, Oxford University Press, Oxford, 2005)
(346.29 2005 UNJ).
Bridge M, Personal Property Law (3rd edn, Oxford University Press, Oxford,
2002) (346.470942 2002 PER).
Burke B, Personal Property in a Nutshell (2nd edn, West Group, St Paul,
2003) (346.470973 2003 PER)
Chambers R, An Introduction to Property Law in Australia 2nd edn (LBC,
Sydney, 2008) (346.40994 2008 INT).
Chambers R, Resulting Trusts (Clarendon Press, Oxford, 1997) (346.590941
1997 RES).
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Davies M & Naffine N, Are Persons Property? (Ashgate, Aldershot,
2001)(346.12 2001 ARE).
Duncan WD & Willmott L, Mortgages Law in Australia 2nd edn (Federation
Press, Sydney, 1996) (346.43640994 1996 MOR).
Edelman J & Degeling S, Equity in Commercial Law (Lawbook Co, Sydney,
2005) (346.04 2005 EQU).
Edelman J, Gain-Based Damages (Hart Publishing, Oxford, 2002) (347.42077
2002 GAI).
Gillooly M (ed), Securities over Personalty (Federation Press, Sydney, 1994)
(346.740994 1994 SEC).
Gordley J, Foundations of Private Law (OUP, Oxford, 2006) (346 2006
FOU).
Hohfeld WN, Fundamental Legal Conceptions (Yale University Press, New
Haven, 1923) (340.11 1923 FUN).
Hudson A (ed), New Perspectives on Property Law, Obligations and
Restitution (Cavendish, London, 2004) (346.40942 2004 NEW).
Maitland FW, Equity: A Course of Lectures (Cambridge University Press,
Cambridge, 1936) (346.04094201936 EQU).
Palmer N & McKendrick E, Interests in Goods 2nd edn (LLP, London, 1998)
(346.40942 1998 INT).
Penner JE, The Idea of Property in Law (Oxford University Press, Oxford,
2000) (346.4 1997 IDE).
Pollock F & Wright RS, An Essay on Possession in the Common Law
(Clarendon Press, Oxford, 1888) (346.40942 1888 ESS).
Pretto-Sakmann A, Boundaries of Personal Property (Hart Publishing,
Oxford, 2005) (346.470942 2005 BOU).
Robertson A, The Law of Obligations: Connections and Boundaries (UCL
Press, London, 2004) (346.2 2004 LAW).
Rotherham C, Proprietary Remedies in Context (Hart Publishing, Oxford,
2002) (346.40942 2002 PRO).
Smith LD, The Law of Tracing (Clarendon Press, Oxford, 1997) (346.40942
1997 LAW).
Smith RJ, Plural Ownership (OUP, Oxford, 2005).
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Swadling W (ed) The Quistclose Trust: Critical Essays (Hart Publishing,
Oxford, 2004) (346.590942 2004 QUI).
Traves SJ, Commercial Law (LexisNexis, Sydney, 2006) (346.70994 2006
COM).
Wappett CC & Allan DE, Securities over Personal Property (Butterworths,
Sydney, 1999) (346.746994 1999 SEC).
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READING LIST AND COURSE OUTLINE
SESSION 1 (Thurs 24 July)
Session 1: What is “property”?
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
PROPERTY THEORY
K Gray ‘Property in Thin Air’ [1991] CLJ 252 at 292-9, 301-3, 307 (B).
J Penner The Idea of Property in Law (1997 OUP Oxford). pp 23-31, 68-74, 105-127
(E).
CR Noyes, The Institution of Property (Longmans, New York, 1936) pp 18-25, 285311 (E).
National Provincial Bank Ltd v Ainsworth [1965] AC 1175 at 1247-1248. (E).
Smith v ANL (2000) 204 CLR 493 (esp at pp 521-524) (B)
Yanner v Eaton (1999) 201 CLR 351 at [17]-[31], [49], [85]-[86] (E).
OBJECTS OF PROPERTY RIGHTS
Are intangibles capable of being property rights or the object of property rights?
Do you agree with each of the cases below?
Are some contractual rights property rights?
If so, are all contractual rights property rights?
Corpses
Doodeward v Spence (1908) 6 CLR 406 (E).
Intangibles
*Monetary contractual rights (debts, bank accounts, term deposits).
Yanner v Eaton (1999) 201 CLR 351 at para [85]-[86] (Gummow J) (E).
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*Intellectual Property
Property right to information? Monopoly right? Is an idea a “thing”?
J Penner The Idea of Property in Law (1997 OUP Oxford) 115-119 (B).
Copyright Act 1968 (Cth) s 196 (B).
Trade Marks Act 1995 (Cth) s 21 (B).
*Shares
G Barton, ‘The Legal Nature of a Share’ in Palmer N & McKendrick E, Interests in
Goods 2nd edn (LLP, London, 1998) pp 111-115 (RM).
Gambotto v WCP Ltd (1995) 182 CLR 432 at 444-445 (E).
*Confidential Information
Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438 (E)
*A right to practise in a profession
Dorman v Rodgers (1982) 148 CLR 365 (E)
*Property in a Spectacle
Victoria Park Racing and Recreation Grounds Ltd v Taylor (1937) 58 CLR 479 at
496 (E).
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 321-322 (Callinan J)
(RM).
*Administrative rights
Right to a tax refund
Federal Commissioner of Taxation v Official Receiver (1956) 95 CLR 300 (RM).
*Unit Trusts
John Tarrant, ‘Units Trusts in the 21st Century’ (2006) 20 Commercial Law Quarterly
12 (RM).
Issues
What conceptually is a property right?
What things can be the object of property rights?
Can one property right attach to a separate thing?
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SESSION 2 (Thurs 24 July)
Session 2: Property rights created by consent: Part 1
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
PROPERTY RIGHTS AT COMMON LAW
*Ownership
*Possession
*Security Rights (pledge, lien, bill of sale, hire purchase)
*Rights to rescission
OWNERSHIP AND ESTATES IN PERSONAL PROPERTY AT COMMON
LAW
Re Hill [1897] 1 QB 483 at 493 (Chitty LJ) "As the common law does not recognise
such a thing as an estate in a chattel, a gift of a chattel for life accompanied by
delivery passes the property at law." Compare : Re Swan, Witham v Swan [1915] 1
Ch 829 (E). See W Swadling's discussion of this issue in his chapter "Property" in P
Birks (ed) English Private Law (2000 OUP) available on Open Reserve (B).
Contracts of hire/lease
De Mattos v Gibson (1859) 45 ER 108 (E).
Lord Strathcona Steamship Co v Dominion Coal Co [1926] AC 108 (E).
This approach has now been said to be bad law : see EPL (above) p274 (RM)
Bristol Airport v Powdrill [1990] Ch 744 (E).
On Demand Information v Michael Gerson Finance Plc [2002] 2 WLR 919 (OC).
1. POSSESSION
Armory v Delamirie (1722) 93 ER 664 (E).
Motor Dealers Credit Corp Limited v Overland (Sydney) Ltd (1931) 31 SR (NSW)
516 (E).
Young v Hitchens (1844) 6 QB 606 (E).
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2. GIFTS
Standing v Bowring (1886) 31 Ch D 282 (E)
Re Paradise Motor Company Ltd [1968] 2 All ER 625 (E)
3. BAILMENT
From bailler (French “to deliver”)
Westrac Equipment Pty Ltd v "Assets Venture" (2002) 192 ALR 277 (E)
Compare Henderson v. Merrett Syndicates [1995] 2 AC 145 at p.205 (OC)
The Pioneer Container [1994] 2 AC 324 (OC)
G McMeel ‘The Redundancy of Bailment’ [2003] LMCLQ 169 (RM).
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SESSION 3 (Thurs 24 July)
Session 3: Property rights created by consent: Part 2
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
PROPERTY RIGHTS IN EQUITY
Maitland FW, Equity: a Course of Lectures (Cambridge University Press, Cambridge,
1936) pp 111-116 (B).
P Parkinson “Reconceptualising the Express Trust” [2002] CLJ 657 (B).
J Tarrant “Equitable Ownership After the Judicature Act” (2007) 15 APLJ 26 (B).
Equitable rights – property or obligation? Or both?
"A person solely entitled to full beneficial ownership of money or property, both at
law and in equity does not enjoy an equitable interest in that property" (Westdeutsche
Bank v Islington LBC [1996] 2 All ER 961 at 989).
Equitable interests are created by various events.
Express Trusts
"My notion of an express trust is that it is a trust which has been expressed, either in
writing or by word of mouth, and that it does not include a trust which arises from the
acts of the parties." : Sands v Thompson (1883) 22 Ch D 614 at 617 (Fry J).
Resulting Trusts
Nelson v Nelson (1995) 184 CLR 538 (E).
Westdeutsche Bank v Islington LBC [1996] 2 All ER 961 at 990-992 (OC).
Evans v European Bank Limited (2004) 61 NSWLR 75 (OC/RM).
Constructive Trusts
Attorney General (Hong Kong) v Reid [1994] 1 AC 324 (PC) (E).
Giumelli v Giumelli (1999) 196 CLR 101 at 111-112 para [2]-[4] (E).
Lysaght v Edwards [1876] 2 Ch D 499 at 506 (E)
Tanwar Enterprises Pty Ltd v Cauchi (2004) 217 CLR 315 (OC).
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SESSION 4 (Friday 25 July)
Session 4: Property rights created by consent: Part 3
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
General Texts (all held on reserve).
Duncan WD & Willmott L, Mortgages Law in Australia, Federation Press 2nd edn
1996 (B).
Gillooly M (ed), Securities Over Personalty, The Federation Press 1994 (B).
Palmer N & McKendrick E, Interests in Goods 2nd edn (LLP, London, 1998) (B).
Wappett CC & Allen DE, Securities Over Personal Property, Butterworths 1999 (B).
FORMS OF SECURITY
Mortgages
Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 (E).
UTC (in liq) v NZI Securities Australia (1991) 4 WAR 349 (OC).
Charges
Re Cosslett (Contractors) [1998] Ch 495 (OC).
Wily v St George Partnership Banking Ltd (1999) 161 ALR 1 (E).
C Davis "Floating Rights" [2002] CLJ 423 at 454-461 (RM).
Pledges
ANZ Banking Group v Curlett, Cannon & Galbell [1991] 2 VR 647 (OC).
Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 (E).
Liens
Hewett v Court (1983) 149 CLR 639 (E).
A Hudson ‘Solicitor’s Liens’ in Palmer N & McKendrick E, Interests in Goods 2nd
edn (LLP, London, 1998) pp 649-660 (B/RM).
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J Phillips ‘Equitable Lien’s – A Search for a Unifying Principle’ in Palmer N &
McKendrick E, Interests in Goods 2nd edn (LLP, London, 1998) pp 975-993 (B/RM).
Retention of title ?
Aluminium Industrie Vaassen v Romalpa Aluminium [1976] 1 WLR 676 (B)
Associated Alloys v ACN 001 452 106 (in liq) (2000) 202 CLR 588 (E)
LAW REFORM PROPOSALS
Personal Property Securities Bill 2008 Consultation Draft (B).
Personal Property Securities Bill 2008 Commentary (B).
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SESSION 5 (Friday 25 July)
Session 5: Property rights created by wrongdoing
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
1. What is “Wrongdoing”?
Nb Competition with innocent victim.
2. Weak Proprietary rights (rescission)
Property passes unless act of rescission.
Section 23, Sale of Goods Act (WA) (Sale under voidable title).
The nature of rescission: S Worthington ‘The proprietary consequences of rescission’
[2002] RLR 28 (B).
Car and Universal Finance Co Ltd v Caldwell [1965] 1 QB 525 (CA) (E).
Re Eastgate [1905] 1 KB 465 (E).
W Swadling, ‘Rescission, Property, and the Common Law’ (2005) 121 LQR 123 (B).
Re Goldcorp Exchange Limited (In Receivership) [1995] 1 AC 74 (E).
3. Strong Proprietary Rights
Re Polly Peck International plc (In Administration) (No 5); Marangos Hotel Co Ltd v
Stone [1998] 3 All ER 812 (OC).
Black v S Freedman & Co (1910) 12 CLR 105 (E).
J Tarrant ‘Property Rights to Stolen Money’ (2005) 32 University of Western
Australia Law Review 234 (E).
Lister v Stubbs (1890) 45 Ch D 1 (B).
Attorney General (Hong Kong) v Reid [1994] 1 AC 324 (PC) (E).
Diprose v Louth (No 2) (1990) 54 SASR 450 at 475 (OC).
Louth v Diprose (1992) 175 CLR 621 at 633-639 (OC).
4. Elections between Equitable and Common Law Proprietary Rights
Creak v James Moore & Sons Pty Ltd (1912) 15 CLR 426 (E).
J Tarrant ‘Theft Principle in Private Law’ (2006) 80 Australian Law Journal 531 (E).
M Bryan ‘Rescission, Restitution and Contractual Ordering: The Role of Plaintiff
Election’ in A Robertson (ed) The Law of Obligations (RM).
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SESSION 6 (Friday 25 July)
Session 6: Library research session
Library staff will conduct a workshop on using the various online databases. This
workshop is designed to assist students in researching skills.
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SESSION 7 (Sat 9 August)
Session 7: Other ways creating personal property: Part 1
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
Unjust Enrichment
1. What is “unjust enrichment”?
2. Property must pass to a defendant before proprietary action in unjust enrichment
(Cundy v Lindsay (1878) 3 App Cas 459) (E)
Impaired consent:
(a) Strong proprietary rights and weak proprietary rights (rescission)
(b) Where property passes: Weak or strong proprietary right?
Chase Manhattan Bank NA v Israel –British Bank Ltd [1981] Ch 105 (E)
Westdeutsche Bank v Islington LBC [1996] 2 All ER 961 at 996-997 (OC)
Allcard v Skinner (1877) 36 Ch D145 at 184-193 (OC)
Absence of consent
Where property passes
Nelson v Nelson (1995) 184 CLR 538 (E)
Qualified consent
Baumgartner v Baumgartner (1987) 164 CLR 137 (E)
Muschinski v Dodds (1985) 160 CLR 583 (OC)
Compare Hodgson v Marks [1971] Ch 892, [1971] 2 All ER 684. (OC)
Chambers An Introduction to Property Law in Australia 2nd edn (LBC, Sydney, 2008)
pp 304-306 (E).
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SESSION 8 (Sat 9 August)
Session 8: Recent cases
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
PricewaterhouseCoopers Legal v Perpetual Trustees Victoria Ltd [2007] NSWCA
271(E)
Maguire v Lynch [2007] QCA 290 (E).
Orix Australia Corp Ltd v Peter Donnelly Automotive Pty Ltd [2007] NSWSC 977
(E).
Pangallo Estate Pty Ltd & ors v Killara 10 Pty Ltd [2007] NSWSC 1528 (E).
Donnolley v Clarke [2008] NSWSC 522 (E).
Lift Capital Partners Pty Ltd [2008] NSWSC 446 (E).
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SESSION 9 (Sat 9 August)
Session 9: Other ways creating personal property: Part 2
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
Finding
Armory v Delamirie (1722) 93 ER 664 (E).
Parker v British Airways Board [1982] 1 QB 1004 (E).
National Crime Authority v Flack (1998) 156 ALR 501 (E).
Popov v Hayashi (Supreme Court of California, Dec 18 2002) (E).
Accession, Specification and Mixing (Confusio and commixtio: fluids and solids)
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588 (loss of
property in the steel) (E).
Spence v Union Marine Insurance Co Ltd (1868) LR 3 CP 427 (E).
Indian Oil Corporation v Greenstone Shipping SA [1987] 3 All ER 893 (OC).
Ebner v Official Trustee in Bankruptcy (2003) 196 ALR 533 esp at 546 (OC).
Crouch v Abell; Application of Crouch [2005] NSWSC 1308 (E)
J Tarrant ‘Remedial Constructive Trust in Corporate Insolvency’ (2006) 14
Insolvency Law Journal 50 (RM).
R Hickey ‘Dazed and Confused: Accidental Mixtures of Goods and the Theory of
Acquisition of Title’ (2003) 66 Modern Law Review 368 (B/RM).
P Birks ‘Mixtures’ in Palmer N & McKendrick E, Interests in Goods 2nd edn (LLP,
London, 1998) pp 227- 249 (B/RM).
Who owns the new thing? (tenants in common? Owner of the original thing? Party
that has done the work creating the new thing?) What if there was wrongdoing
involved?
Substitution
NB Consider Following, Tracing and Claiming
L Smith The Law of Tracing (1997 OUP Oxford) 1-18, 356-361 (OC).
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SESSION 10 (Sat 23 August)
Session 10: Wrongs of interference
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
1. CONVERSION
*History (Trespass to goods, trover, conversion and detinue).
Salmon JW, ‘Observations on Trover and Conversion’ (1905) 21 LQR 43 (B).
(1) What amounts to conversion?
Marcq v Christies [2004] QB 286 (E)
A Tettenborn ‘Conversion, Tort and Restitution’ in Palmer N & McKendrick E,
Interests in Goods 2nd edn (LLP, London, 1998) pp 825-836 (B/RM).
(2) The damages approach
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 (E).
A Tettenborn “Damages in Conversion: The Exception or the Anomaly” [1993] CLJ
128 (B/RM).
CONVERSION OF EQUITABLE PROPERTY?
MCC Proceeds Inc v Lehman Brothers International (Europe) [1998] 4 All ER 675
(E).
CONVERSION OF INTANGIBLE PROPERTY
OBG Limited v Allan [2007] UKHL 21; [2007] 2 WLR 920: Paras [94] – [107]; [220]
– [241]; [271]; [309] – [317]; and [321] – [322]. (E).
IMPROVEMENTS
Greenwood v Bennett [1973] QB 195 (OC).
CONVERSION OF CHEQUES
NIML Ltd v Man Financial Australia Ltd [2006] VSCA 128 (E)
John Tarrant, ‘Liability for Conversion of Cheques’ (2006) 14 Tort Law Rev 125 (E).
2. TRESPASS TO GOODS
Penfolds Wines v Elliott (1946) 74 CLR 204 (E).
A Hudson ‘Trespass to Goods’ in Palmer N & McKendrick E, Interests in Goods 2nd
edn (LLP, London, 1998) pp 809 – 823 (B/RM).
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SESSION 11 (Sat 23 August)
Session 11: Vindicating property rights
B = Background reading (Optional general background reading on the topic)
E = Essential reading (This will form the focus of the seminar)
OC = Optional additional cases
RM = Research material (Useful reading for research paper)
Lipkin Gorman v Karpnale [1991] 2 AC 548 (E).
Agip (Africa) Ltd v Jackson [1989] 3 WLR 1367 (OC).
Foskett v McKeown [2001] 1 AC 102 (E).
Black v S Freedman (1910) 12 CLR 105 (E).
Creak v James Moore & Sons Pty Ltd (1912) 15 CLR 426 (E).
Trustee of the Property of Jones v Jones [1997] Ch 127 (OC).
Peter Millett, ‘Jones v Jones: Property or Unjust Enrichment?’ in Burrows (Ed)
Mapping the Law at p 264 (RM)
Spangaro v Corporate Investment Australia Funds Management Ltd (2003) 47 ACSR
285; (2003) 21 ACLC 1948 at para [48]-[51] (E).
FOR DISCUSSION
Read Foskett v McKeown. What did the House mean by saying that the cause of
action was one in "property"? Was the property right "created"?
Page 24
SESSION 12 (Sat 23 August)
Session 12: Recent journal articles
Details to be advised.
Page 25