PROPERTY II
(LAWS2205)
2007
Second Semester
UNIT OUTLINE
2
CONTENTS
Property II 2007
__________________________________________________________________________
Part One
About this unit, including materials to be acquired
and reference material
Part Two
Property Outline
Part Three
A calendar of lectures indicating the material to be covered
Part Four
General Information
Part Five
Sample discussion problems
All material reproduced herein has been copied in accordance with and pursuant to a statutory licence
administered by Copyright Agency Limited (CAL), granted to the University of Western Australia pursuant to Part
VB of the Copyright Act 1968 (Cth).
Copying of this material by students, except for fair dealing purposes under the Copyright Act, is prohibited. For
the purposes of this fair dealing exception, students should be aware that the rule allowing copying, for fair
dealing purposes, of 10% of the work, or one chapter/article, applies to the original work from which the excerpt
in this course material was taken, and not to the course material itself.
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PART ONE
About This Unit
Welcome to Second Semester Property Law
The Property law team for second semester Property Law is Penny Carruthers and
Natalie Skead. We hope that you find Property law in second semester to be an
interesting and enjoyable subject. If you have any queries please do not hesitate to
contact Penny or Natalie.
The second semester Property unit deals with the Torrens system of title to real
property in Australia in general and in Western Australia in particular. The first 6
weeks of classes will cover: the nature of the Torrens System; the notion of
indefeasibility of title; the exceptions to indefeasibility of title and the nature and role
of caveats in the Torrens System.
The next 5 weeks of classes will cover leases and mortgages. The last 2 weeks of
classes will deal with easements.
Method of assessment
1. An assignment of 2000 words and worth 30% will be available at 2pm on Friday
24 August 2007 and will be due in by noon Friday 7 September 2007 at the Law
School General Office. The assignment will assess the law contained in Leases
topics 5(a) – (e) (inclusive), 7 and 8 and also the Commercial Tenancies (Retail
Shops) Agreements Act 1985.This material will not be covered in class and
students are required to cover this material on their own.
2. An end of year 2 hour exam worth 70% covering the remaining semester material
(ie, not the material covered in the assignment). This is an open book exam.
Students may take into the exam any books, lecture notes and materials.
Course materials
1.
Reading Materials:
An edited collection of Reading Materials for second semester have been
prepared. These materials contain the important cases and some articles and
constitute the essential reading (together with the statutory material) for the
unit. These materials may be purchased at the start of 2 nd semester. Copies
of the materials are available on Reserve.
2.
Recommended Text:
Australian Real Property.
Bradbrook McCallum & Moore, 4th edition Lawbook Co 2007. (“ARP”)
An Introduction to Property Law in Australia
R Chambers, LBC Information Services 2001. (Abbreviated as “Chambers”)
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3.
Essential Statutory Material: (All West Australian)
The Transfer of Land Act (“TLA”)
The Property Law Act (“PLA”)
4.
Additional Sources and References:
Sackville and Neave’s Property Law – Cases and Materials 7th ed, by Neave,
Rossiter and Stove. LexisNexis Butterworths 2006.
The Torrens System in Australia by Whalan. The Law Book Co Ltd 1982.
The Law of Securities 5th ed by Sykes and Walker.
1993.
The Law Book Co Ltd
Land Law 5th ed by Butt, Lawbook Co. 2005
Land Law Butterworths Tutorial Series 2002
Contact details
Unit web site URL
Unit coordinator/lecturer
Name and room number:
Penny Carruthers, room 2.05
e-mail:
pcarruth@law.uwa.edu.au
phone:
6488 3436
fax :
6488 1045
Consultation hours :
11.00 – 1.00am Wednesday or by appointment.
Lecture groups :
Groups 1, 2 and 6. See http://www.timetable.uwa.edu.au/
Lecturer
Name and room number:
Natalie Skead, room 2.01
e-mail:
nskead@law.uwa.edu.au
phone:
6488 2962
fax :
6488 1045
Lecture groups :
Groups 3, 4 and 5. See http://www.timetable.uwa.edu.au/
Consultation hours
12.00 – 1.00 Wednesday or Thursday or by appointment
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Learning Outcomes
On completion of this unit you should be able to:
1. Identify and explain the fundamental principles of Property Law in relation to:
(a) The Torrens System of land registration;
(b) The concept of indefeasibility of title and exceptions to indefeasibility;
(c) The nature and role of caveats and unregistered interests in the Torrens
System;
(d) Mortgages;
(e) Leases; and
(f) Easements
2. Demonstrate a critical and analytical approach to examining Property Law
principles and reading cases;
3. Apply fundamental Property Law principles, covered in 1 above, to solve
hypothetical legal problems;
4. Write clear, concise and persuasive legal arguments in answering hypothetical
legal problems;
5. Demonstrate statutory interpretation skills;
6. Continue to develop effective oral communication and time management skills;
7. Recognise that ethical issues arise in various areas of Property Law.
Prerequisites
This unit assumes that students have already developed certain basic skills. It is
expected that students have an adequate command of:
1.
English and related communication skills – students are expected to have very
high English language skills and to be able to understand and follow the
principles of accepted expression and style;
2.
Library research skills – research is an important aspect of studying law and
students will be expected to utilise the facilities of the Law Library on a regular
basis.
If you are not well prepared in any of the above areas you should make every effort
to remedy the situation through undertaking additional reading and/or practice. Do
not hesitate to ask for advice from your tutor.
The University’s Student Learning, Research and Language Skills Service offers
assistance in a variety of areas, including writing skills, study skills, examination
preparation skills and stress management. The service is located on the second
floor of the Guild Village, south entrance/ exit and can be contacted by telephoning
6488 2423 or 6488 2258.
Unit Specific Prerequisites
The specific units that must have been completed prior to enrolling in Property II
LAWS2205 are: Property I LAWS2204; Legal Process LAWS1130 and Contract I
LAWS1101. Contract II LAWS2102 is a co-requisite.
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PART TWO
Property Outline
Cases marked with an asterisk (*) are not contained in the Materials and are
optional reading.
THE TORRENS SYSTEM - THE
STATUTORY SCHEME OF TITLE TO
LAND BY REGISTRATION
ARP: Chapter 4.
Chambers : Chapters 30, 31 and 32
Statutory Material: The Transfer of Land Act (WA)
1.
2.
THE UNREGULATED OLD SYSTEM OF CONVEYANCING
(a)
The chain of title
(b)
The defects in the system:
(i)
The difficulty of understanding the complex language of the old
conveyancing documents
(ii)
The need for people searching the chain to have special skills
(iii)
The need to investigate the chain of title and the complexity and
expense involved
(iv)
The ever-increasing number of documents contained in the
chain of title
(v)
The sheer volume of records that had to be stored
(vi)
The insecurity of title flowing from fraud, forgery or accidental
removal of documents from the chain
(vii)
The impossibility of discovering those interests in land that are
created without a written document
THE REGISTRATION OF DEEDS SYSTEM
(a)
The effect of registration
(b)
Registrable and unregistrable interests
(c)
Defects in the Deeds Registration System
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3.
4.
THE INTRODUCTION OF THE TORRENS SYSTEM
(a)
Historical origins
(b)
The Torrens System and Deeds Registration System Compared
(i)
Security and certainty of title
(ii)
Diminution of delay and expense
(iii)
Simplification of titles and dealings
(iv)
Accuracy
THE ESSENTIAL FEATURES OF THE TORRENS SYSTEM
(a) The base is a unit of land and not people
(b) The register
(c) Security of registered proprietor
(d) Guarantee by the State of compensation for loss
5.
BRINGING LAND UNDER THE TORRENS SYSTEM
Land alienated after the TLA came into operation comes automatically under
the Act. Land alienated before the Act came into operation may be brought
under the Act: see generally ss20-47 (inclusive) of the TLA.
6.
THE REGISTER AND ITS CONTENTS – AN OVERVIEW
Part III TLA Sections 48-81 inclusive
(a)
The Register
Sections 48 and 48A TLA
(b)
Duplicate Certificates of Title
Sections 48B, 57, 74A, 74B, 75 and 76 TLA
(c)
Purpose and Effect of Registration
Sections 52, 53, 58, 63 and 68 TLA
*Crowley v Templeton (1914) 17 CLR 457
(d)
Unregistrable Interests
E.g. ss 55 and 91 TLA
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7.
INDEFEASIBILITY OF TITLE
(a)
The nature of indefeasibility
(i)
The core indefeasibility provisions
s68 (paramountcy), s134 (notice), s199 (ejectment), s202
(protection of purchasers)
(ii)
Ancillary indefeasibility provisions
ss58, 63, and 67
(b)
Deferred or immediate indefeasibility?
Gibbs v Messer [1891] AC 248
“Although a forged transfer or mortgage, which is void at common law, will, when duly
entered on the register, become the root of a valid title, in a bona fide purchaser by
force of the statute, there is no enactment which makes indefeasible the registered
right of the transferee or mortgagee under a null deed.”
* Clements v Ellis (1934) 51 CLR 217
Frazer v Walker [1967] AC 569
Breskvar v Wall (1971) 126 CLR 376
For a discussion of the recent cases regarding the deferred versus
immediate indefeasibility debate see:
Note, (1993) 67 ALJ 535
Note, (1993) 67 ALJ 691
Note, (1994) 68 ALJ 753
(c)
The Torrens System in action
Breskvar v Wall (1971) 126 CLR 376
(d)
Guarantee by the State of Compensation for Loss of Title
Sections 196, 201, 205, 206, 207, 196, 211 TLA
(e)
The extent to which indefeasibility cures “defective” registered
documents
Mercantile Credits Ltd v Shell Co of Australia (1976) 136 CLR 326
“The right of renewal is so intimately connected with the term granted to the lessee,
which it qualifies and defines, that it should be regarded as part of the estate or
interest which the lessee obtains under the lease, and on registration is entitled to the
same priority as the term itself” per Gibbs J.
*Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1.
PT Ltd v Maradonna Pty Ltd (1992) 25 NSWLR 643
Registration validates those terms which “delimit or qualify the estate or interest or
are otherwise necessary to assure that estate or interest to the registered proprietors”
per Giles J, 679.
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8.
EXPRESS EXCEPTIONS TO INDEFEASIBILITY, SECTION 68 – OTHER THAN
FRAUD
(a) Encumbrances notified on the Register
(b) Prior Certificates of Title
Registrar of Titles v Esperance Land Co [1899] WAR 118
(c) Wrong Description
Medical Benefits Fund of Australia v Fisher [1984] 1 Qd R 606
(d) Reservation in the grant
(e) Adverse Possession
TLA s222-223A
(f) Easements
(g) Unpaid rates
(h) Mining lease or license
(i) Unregistered lease or agreement for lease for less than five years
Leros Pty Ltd v Terrara Estates et al (1992) 106 ALR 595
“Options to renew unregistered Torrens title leases” 1992 66 ALJ 831
9.
EXPRESS EXCEPTIONS TO INDEFEASIBILITY – SECTION 68 – FRAUD
(a) What is fraud under s68?
Assets Co Ltd v Mere Roihi [1905] AC 176.
“… by fraud … is meant actual fraud, i.e., dishonesty of some sort, not what is called
constructive or equitable fraud… Further, … the fraud which must be proved in order to
invalidate the title of a registered purchaser for value,… must be brought home to the
person whose registered title is impeached or to his agents. Fraud by persons from
whom he claims does not affect him unless knowledge of it is brought home to him or his
agents. The mere fact that he might have found out fraud if he had been more vigilant,
and had made further enquiries which he omitted to make, does not of itself prove fraud
on his part. But if it be shown that his suspicions were aroused, and that he abstained
from making enquiries for fear of learning the truth, the case is very different, and fraud
may be properly ascribed to him … A person who presents for registration a document
which is forged or has been fraudulently or improperly obtained is not guilty of fraud if he
honestly believes it to be a genuine document which can be properly acted upon.” per the
Privy Council in Assets Case.
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Waimiha Sawmilling Co Ltd v Waione Timber Co Ltd [1926] AC 101
“If the designed object of a transfer be to cheat a man of a known existing right, that is
fraudulent, and so also fraud may be established by a deliberate and dishonest trick
causing an interest not to be registered and thus fraudulently keeping the register clear…
The act must be dishonest, and dishonesty must not be assumed solely by reason of
knowledge of an unregistered interest.” at 106-107.
Mills v Stockman (1967) 116 CLR 61
Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd (1998) 1 VR
188.
(b) Fraud and s134 – Notice of unregistered interest is not fraud
Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491
(c) The time of the fraud
Bahr v Nicolay (No 2) (1988) 62 ALJR 268
(d) Fraud by the agent
Schultz v Corwill Properties Pty Ltd (1969) 90 WN (Pt 1) (NSW) 529
(i) Where R.P. has become registered through the fraud of the agent.
Respondeat Superior Applies
Where the agent acted within the scope of his or her actual or apparent authority then
the fraud of the agent becomes the principal’s fraud.
(ii) Where the agent has knowledge of a fraud.
Can the agent’s knowledge be imputed to the principal?
There is an irrebuttable presumption that the agent communicates to the principal all
information of which the agent has knowledge in the course of the transaction.
Exception: If the information sought to be imputed is knowledge of the agents own
fraud or information acquired by the agent whilst a party to a fraud then the principal
may rebut the presumption.
(e) Fraud against the Registrar
Beatty v Australian and New Zealand Banking Group [1995] 2 VR 301
Note, (1996) 70 ALJ 524
Russo v Bendigo Bank Ltd and Reichman [1999] 3VR 376
For a discussion of this case see,
*S Rodrick, “Forgeries, False Attestations and Impostors: Torrens System
Mortgages and the Fraud Exception to Indefeasibility”,(2002) 7 Deakin
Law Review 97.
Note, (2005) 79 ALJ 77
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10.
OTHER EXCEPTIONS TO INDEFEASIBILITY
(a)
Rights in personam
(i) Rights in Personam defined
“The Torrens statutes do not interfere with the personal obligation of a registered
proprietor, and thus contracts or agreements can still be enforced against [the
registered proprietor], as can trusts, whether express, implied or constructive.”
Whalan, p 333.
The principle of indefeasibility “in no way denies the right of a plaintiff to bring
against a registered proprietor a claim in personam, founded in law or in equity,
for such relief as a court acting in personam may grant.” The Privy Council,
Frazer v Walker, supra.
Essentially the rights in personam exception will apply when the registered
proprietor’s conscience is affected as a result of a legal or equitable cause of
action enforceable against him or her. Butt 753.
(ii) Examples of Rights in Personam
In the following situations the R.P. cannot rely on an indefeasible
title because of the rights in personam “exception”:

Where a purchaser has entered a specifically enforceable
contract for the sale of R.P.’s land;

Where a beneficiary has rights under a trust of land of which
R.P. is trustee, including express and constructive trusts: Bahr
v Nicolay (Supra);

Where R.P.’s title is liable to be set aside for mistake or where
R.P. should have realised the dealing by which he was
registered was subject to a non est factum defence, consider
PT Ltd v Maradonna Pty Ltd (Supra); and

Where R.P. has breached a trust or fiduciary duty.
Compare these with an example of a right in personam which is not
an exception to indefeasibility:
Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd (1998) 1
VR 188
Note the difficulties that can arise in making this distinction:
Mercantile Mutual Life Ins Co Ltd v Gosper (1991) 25 NSWLR 32
Note, (1992) 66 ALJ 596
(iii) The relative importance of notice to the inpersonam exception
Tara Shire Council v Garner [2002] QCA BC200203548
For a discussion of this case see,
Note, (2002) 76 ALJ 606
L Griggs, “The Tectonic Plate of Equity…” (2003) 10 APLJ 78
Note, 2003 77 ALJ 280
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA
BC200703851
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(b)
Correcting the Register
s76 and s188(ii)
(c)
Overriding statutes
“Overriding statutes pose perhaps the greatest single threat to public confidence in
the Torrens system. So substantial are their inroads into indefeasibility of title that it
is imprudent, when acquiring interests in Torrens title land, to rely on the Register as
an accurate mirror of the registered proprietors title”. Butt, 759.
See for example s76 Taxation Administration Act 2003 (WA)
(d)
Volunteers
King v Smail [1958] VR 273
Bogdanovic v Koteff (1988) 12 NSWLR 472
Note, (1996) 70 ALJ 258
11.
REVISION CASE FOR EXCEPTIONS TO INDEFEASIBILITY
Conlan v Registrar of Titles (2001) 24 WAR 299
12.
EQUITABLE OR UNREGISTERED INTERESTS
(a)
Their place in the system
TLA s58
Barry v Heider (1914) 19 CLR 197
“The Torrens statutes do not touch the form of contracts. A proprietor may contract
as he pleases, and his obligation to fulfil the contract will depend on ordinary
principles and rules of law and equity. [Section 58] in denying effect to an instrument
until registration, does not touch whatever rights are behind it. Parties may have a
right to have such an instrument executed and registered; and that right, according to
accepted rules of equity, is an estate or interest in land.” Isaacs J in Barry v Heider.
(b)
Protection of unregistered interests – the caveat system
(i)
The Nature of a caveatable interest
TLA s137
Kuper & Kuper v Keywest Construction (1990) WAR 419
(ii)
(iii)
The 3 Types of s 137 Caveats

absolute

“notice”

“subject to claim”
The Operation of the Caveat System
Sections 137, 138, 139 and 141 TLA
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(iv)
Removal of Caveat

Withdrawal
-

s 137 and s 141A TLA
Application for removal of caveat
-
Section 138 TLA
Kerabee Park Pty Ltd v Daley [1978] 2 NSWLR 222

Lapse of Caveat.

-
Sections 137 and 138 TLA
-
Section 138B TLA
Endorsement of lapse of caveat on certificate of Title by
Registrar
-
(v)
s 141 TLA
Liability for wrongful lodgement of caveat
TLA s140
Kuper & Kuper v Keywest Construction (Supra)
Note, (2005) 79 ALJ 20
(c)
Priority Disputes Between Unregistered Interests
(i)
Introduction
Barry v Heider (supra)
(ii)
Relevant Factors in Resolving Priority Disputes:
(1)
The nature of the competing unregistered interests;
(2)
The lodgement of a caveat
Is failure to lodge a caveat postponing conduct?
Butler v Fairclough (1917) 23 CLR 78
Abigail v Lapin [1934] AC 491
T Castle, “Caveats and Priorities: the “mere failure to caveat”
(1994) 68 ALJ 143
Factors relevant in determining if failure to caveat is postponing
conduct:
 Is it reasonable to lodge a caveat in the circumstances;
 Is it common practice to lodge a caveat in the circumstances
J & H Just (Holdings) Pty Ltd v Bank of NSW (1971) 125 CLR
546
*IAC (Finance) Pty Ltd v Courtenay (1963) 110 CLR 550.
Note, (1999) 73 ALJ 538
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LEASES
ARP: Chapter 14.
Chambers, 92-96, 452-455, 457-458
1.
TERMINOLOGY
2.
SOURCES OF THE LAW GOVERNING LEASES IN WESTERN AUSTRALIA
Common Law
Property Law Act
Transfer of Land Act
Residential Tenancies Act 1987 (WA)
The Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA)
Town Planning and Developments Act 1928 (WA) (See ss20 and 20B)
Retirement Villages Act 1992 (WA)
3.
THE ESSENTIAL CHARACTERISTICS OF A LEASE
(a)
The demise
(b)
Exclusive possession
Radaich v Smith (1959) 101 CLR 209
(c)
Certainty of the term
*Lace v Chantler [1944] KB 386
(i) Commencement of the term
(ii)
Duration - four types of lease:

Fixed term.
*Lace v Chantler (Supra)
(d)

Periodic - PLA ss71 and 72

At will

At sufferance
Rent (usual but not essential)
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4.
THE FORMALITIES
COMPLY
(a)
OF
LEASES
AND THE
EFFECT
OF
FAILURE
TO
General Law
(i)
Fixed Term Lease
ss33(1), 33(2)(d) and 35(2) PLA
(ii)
Implied Periodic Lease
ss71 and 72 PLA
(b)
Torrens System
(ii)
Lease exceeding 3 years in approved form
S91 TLA
(ii)
Unregistered or unregistrable leases exceeding 3 years
(iii)
Leases less than 3 years
ss33(1), 33(2)(d) and 35(2) PLA
(c)
Equitable leases
*Walsh v Lonsdale
Abjornson v Urban Newspapers Pty Ltd (1989) WAR 19.
*Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. (An
example of an equitable lease created by estoppel)
5.
THE OBLIGATIONS AND RIGHTS OF LANDLORDS AND TENANTS
Note: -The law covered under heading 5(a) – (e) (inclusive) forms part of the subject
matter of the Property 2 assignment. This material will not be covered in class and
students are required to cover this material on their own.
(a)
Covenants Implied at Common Law Against the Landlord:
(i)
Quiet enjoyment.
Malzy v Eichholz [1916] 2 KB 308
Lavender v Betts [1942] 2 All ER 72
JC Berndt Pty Ltd v Walsh [1969] SASR 34
(ii)
Not to derogate from the grant.
Aldin v Latimer Clarke Muirhead & Co [1894] 2 Ch 437
*Lendlease Development Pty Ltd v Zemlicka (1985) 3 NSWLR
207
Spathis v Hanave Investment Co Pty Ltd BC 200202287
(iii)
Fitness for human habitation.
Cruse v Mount [1933] Ch D 278
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(b)
Covenants Implied Against the Tenant
(i)
At common law - Warren v Keen [1954] 1 QB 15 “to use in a
tenant-like manner”; Henderson v Squire (1969) LR 4 EX 170 to deliver up possession; Powley v Walker [1793] 101 ER 208 to cultivate a farm.
(ii)
By statute - Transfer of Land Act ss92 to 95, 131
Payment of rent TLA s92(i)
To keep premises in repair TLA s92(ii)
(c)
Express Covenants
(i)
TLA s94 and the 12th schedule
(ii)
Express covenants are also subject to statutory provisions which
affect them
(iii)
The Usual Terms
*Hampshire v Wickens (1978) 7 CLD 555
(d)
Landlord’s Powers
(i)
To enter and inspect
TLA s93(i)
(ii)
To re-enter for non payment of rent
TLA s93(ii)
(iii)
To re-enter for breach of other covenants
TLA s93(ii) and s103; and the Property Law Act
(e)
Covenants against Assignments and Subleases
(i)
General right at law to assign or sublet
(ii)
Absolute (contractual) prohibition
(iii)
Qualified (contractual) prohibition
(1)
Construction of qualified covenants
(1)
Strict construction
(2)
“part with possession of the premises”
*Richardson v Somas [1967] WAR 109
*Lam Kee Ying v Lam Shes Tong [1975] AC 247
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(2)
“Unreasonably withholding consent”
(1)
PLA ss73, 79, 80 and 82
(2)
Relevant test
International Drilling Ltd v Louisville Investments
(Uxbridge) Ltd (1986) 1 All ER 321
M Mathieson, “’Reasonableness’ of a Landlord’s
Refusal to Consent…” (2003) 77 ALJ 155
6.
(3)
Is landlord liable in damages?
Yared v Spier [1979] 2 NSWLR 291
(d)
Effectiveness of s80(1) PLA
Creer v P&O Lines of Australia Pty Ltd (1971) 125
CLR 84
TERMINATION OF TENANCIES
(a)
At Common Law by:
(i) Effluxion of time
(ii) By notice - fixed and periodic tenancies
(b)
Statutory Termination PLA, s72
(c)
By Surrender and Merger
(d)
By Repudiation
*Shevill v The Builder’s Lic Board (1982) 56 ALJR 793
(e)
By Forfeiture
(i)
(ii)
(iii)
At common law
(1)
Breach of express/implied condition
(2)
Breach of other covenant
In equity
(1)
Breach of express/implied condition
(2)
Breach of other covenant
Formal requirements – demand and notice
(1)
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Breach of covenant to pay rent
ss92, 93(ii) TLA
18
s131 TLA
s81(9) PLA
(2)
(iv)
Breach of other covenant
s93(ii) TLA
s81 PLA
Rugby School (Governors) v Tannahill [1935] 1 KB 695
Right of re-entry
(1)
Right of peaceful re-entry
Hemmings v Stoke Poges Golf Club [1920] 1 KB 720
(2)
Action for possession
(v)
Waiver
*Fremantle Trades hall Industrial Association v Victor
Motor Co Ltd [1963] WAR 201
(vi)
Relief Against Forfeiture
(1)
For failure to pay rent
(2)
For breach of other covenants
PLA ss81(2)(4), (6) and (10)
*Shiloh Spinners Ltd v Harding [1973] AC 691
*Esther Investments Pty Ltd v Cherrywood Park Pty Ltd
(Supra)
7.
LANDLORDS’ OTHER REMEDIES
Note: The material covered in topic 7 forms part of the subject matter of the
assignment and students are to cover this material on their own.
(a)
Self Help (See Distress for Rent Abolition Act 1936 WA s2)
(b)
Physical Retaking of Possession
Hemming v Stoke Poges Golf Club [1920] 1 KB 720
(c)
Damages and Injunctions
*Wright v Trude [1922] 25 WALR 121
(d)
Action for Arrears of Rent
Limitation Act 1935 (WA) s4
(e)
Repudiation and Damages for Prospective Loss
*Shevill v The Builders’ Licensing Board (1982) 149 CLR 620
*Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR
17
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(f)
Actions for Use and Occupation
*Sanders v Cooper [1974] WAR 129
(g)
8.
Actions for Double Rent and Double Value Against Over Holding
Tenants
TENANT’S REMEDIES
Note: The material covered in topic 8 forms part of the subject matter of the
assignment and students are to cover this material on their own.
(a)
Right of Set Off
*Autostop Centres Pty Ltd v Ampac Holdings Pty Ltd (unreported FC
WA 237SCL8861)
(b)
Statutory Repair Orders
Health Act 1911 (WA)
(c)
Statutory Remedies
Trade Practices Act 1974 (Cth)
TPA ss52, 53, 53A and ss80, 82 and 87
Residential Tenancies Act 1987 (WA)
Fair Trading Act 1987 (WA)
*Mr Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23
*Brown v The Jam Factory Pty Ltd (1981) 53 FLR 340
(d)
Application of Contractual Doctrines
*Minister of State for the Army v Dalzeil (1944) 68 CLR 261
*National Camers Ltd v Panalpina (Northern) Limited (1981) AC 674
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9.
THE COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985
Note: The provisions of the Commercial Tenancy (Retail Shops) Agreements Act form part
of the subject matter of the assignment and students are to cover this material on their own.
Part I — Preliminary
1.
2.
3.
4.
5.
Short title
Commencement
Terms used in this Act
Application
Crown bound
Part II — Retail shop leases
6.
6A.
7.
8.
9.
10.
11.
12.
12A.
12B.
12C.
12D.
13.
13A.
13B.
14.
15.
Disclosure
Tenant guide
Rent based on turnover
Turnover figures not generally required
Key-money and goodwill
Assignment and sub-leasing
Rent review
Contribution to landlord’s expenses
Sinking funds
Contribution to other funds and reserves by tenants
Hours of operation
Tenants’ associations etc.
Right to at least 5 years’ tenancy
Avoidance prevented
Notices as to renewal of leases
Compensation by landlord
Act prevails
Part IIA — Unconscionable conduct
15A.
15B.
15C.
15D.
15E.
15F.
Terms used in this Part
Application of Part
Unconscionable conduct of landlords
Unconscionable conduct of tenants
Certain conduct not unconscionable
Powers of Tribunal relating to unconscionable conduct
Part III — Determination of questions
16.
26.
27.
Reference of questions to State Administrative Tribunal
Orders of Tribunal
Other jurisdictions
Part IV — Miscellaneous
28.
30.
31.
Protection
Regulations
Review of Act
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MORTGAGES
ARP: Chapter 9.
Chambers, ch14 and pp 451-452
1.
INTRODUCTION: THE GENERAL LAW MORTGAGE
(a)
Purpose of securities in general
(b)
3 main forms of security interest
(c)
Form of the general law mortgage
(d)
Concepts of redemption and foreclosure
(e)
Formality requirements
PLA ss33(1), 34-36
2.
THE TORRENS SYSTEM MORTGAGE
(a)
Essential difference to general law mortgages
s106TLA
(b)
Formalities for legal mortgage under TLA
s58TLA
s33(1)PLA and s85 TLA
s105TLA
(c)
Equitable mortgages under TLA
s34(1)PLA
s4 Statute of Frauds
s36(d) PLA - Part Performance
s137TLA
Barry v Heider (1914) 19 CLR 197
3.
DOCTRINES PROTECTING THE MORTGAGOR
(a)
The concept of “clogging” the equity
(i)
Total extinguishment of the right to redeem
Samuel v Jarrah Timber Co [1904] AC 323
Reeve v Lisle (1902) AC 461
See Note, (2004) 78 ALJ 366
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(ii)
Postponing the right to redeem
Fairclough v Swan Brewery [1912] AC 565
Morgan v Jeffreys [1910] 1 Ch 620
Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441
(iii)
Collateral covenants affecting the property
Noakes v Rice [1902] AC 24
Biggs v Hoddinott (1898) 2 Ch 307
Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1914]
AC 25
Santley v Wilde [1899] 2 Ch 474
Toohey v Gunther [1928] 41 CLR 181
Wiley (as Administrator of Macquarie Medical Holdings Pty ltd) v
Endeavour Health Care Services Pty Ltd BC 200306705
*L Wilmott and B Duncan, “Clogging the Equity of Redemption:
An Outmoded Concept?” (2002) vol 2 no 1 QUTLJJ 35
(iv)
Miscellaneous clogs
(1)
Covenants in the nature of penalties
(a)
Covenant to repay on default a greater
amount that that advanced
(b)
Covenants to pay higher interest on default
*J Belmore Pty Ltd v AGC (General Finance) Ltd
[1976] 1 NSWLR 507
(c)
Covenant to pay whole of principal and
interest on default
*O’Dea v All States Leasing System (WA) [1983]
152 CLR 359
(2)
(b)
Undue Influence and Unconscionable Dealing
Statutory protection for the mortgagor
Trade Practices Act 1974 (Cth) Section 52
Fair Trading Act (WA) 1987
Consumer Credit (Western Australia) Act 1996
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4.
PRIORITIES
(a)
General law land
(b)
Torrens System land
TLA s53
(c)
The concept of “tacking”
(i)
tabula in naufragio
(1)
Under general law
(2)
Under Torrens System
s53 TLA
Matzner v Clyde [1975] 1 NSWLR 293
(ii)
tacking of further advances
(1)
Under general law
Hopkinson v Rolt (1861) 9 HLC 514
West v Williams (1899) 1 Ch 132 (CA)
(2)
Under Torrens System
Matzner v Clyde [1975] 1 NSWLR 293
Central Mortgage Registry of Australia Ltd v Donemore
Pty Ltd [1984] 2 NSWLR 128
5.
THE RIGHTS AND REMEDIES OF THE MORTGAGEE
(g)
The right to make demand for repayment, including the giving of
notices under the security document
(h)
The right to sue on the personal covenants:
*Simpson v Forrester (1973) 132 CLR 499
(i)
The right to take possession and to make improvements and to
expend money
TLA ss111 and 116
(j)
The right to appoint a receiver - the nature of a receiver
Ss57, 58, 65 and 66 PLA
(k)
The right to foreclose - PLA ss53 and 55(2)
TLA s121 and 122
(l)
The right to exercise a power of sale
(i)
Registered Torrens Mortgages
ss106, 108 and 109 TLA
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(ii)
Unregistered mortgage made under deed
s57(1)(a) PLA
(iii)
Equitable Mortgages
ss106, 108 TLA
*Walsh v Lonsdale
S57(1)(a) PLA
(iv)
Rules in relation to the exercise of the power of sale
(1)
Notice
s106 and 108 TLA
s59PLA (non TLA mortgages)
(2)
Nature of sale
(3)
Persons who may be purchasers
Farrar v Farrar Ltd (1888) 40 Ch D 395
S108 TLA and s57 PLA
(4)
Mortgagee’s standard of care in exercising power of sale
Cuckmere Brick Co Ltd v Mutual Finance Ltd [1971] 2 All
ER 633
Tse Kwong Lam v Wong Chit Sen (1983) 1 WLR 1462
Pendlebury v Colonial Mutual Life Assurance Society Ltd
(1912) 13 CLR 676
Forsyth v Blundell (1973) 129 CLR 477
The Australian and New Zealand and Bank Group Ltd v
Bangadilly Pastoral Co Pty Ltd (1978) 139 CLR 195
Cachalot Nominees Pty Ltd v Nominees Pty Ltd (1984)
WAR 380
Note, (2003) 77 ALJ 12
*W.D. Duncan and L Wilmott, “The Mortgagee's Scylla
and Charybidis that Narrow Path between the Mortgagor
and Purchaser”. (2001) 9 APLJ 129
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EASEMENTS
ARP CH 18.
Chambers, 145-164, 468-469
STATUTES
Transfer of Land Act
Property Law Act
Public Works Act 1902 (WA)
Strata Titles Act 1985 (WA)
1.
DEFINITION AND PURPOSE OF EASEMENTS
2.
EASEMENTS DISTINGUISHED FROM OTHER REAL PROPERTY INTERESTS
3.
(a)
Leases
(b)
Licences
(c)
Restrictive Covenants
(d)
Natural Rights
(e)
Profit a Prendre
THE ESSENTIAL CHARACTERISTICS OF EASEMENTS
(a)
There must exist a dominant and servient tenement
(b)
The easement must accommodate the dominant tenement
Re Ellenborough Park [1955] 2 All ER 667, (1956) 1 Ch 131
(c)
The dominant and servient tenements must not be owned or
occupied by the same person
Note s136H TLA
(d)
The right must be capable of forming the subject matter of a grant
Reilly v Penttila [1974] VR 547
*Maurice Toltz Pty Ltd v Macy’s Emporium Pty Ltd (1969) 91 WN NSW
598
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4.
TYPES OF EASEMENTS
- Rights of Way
- Light
- Support
- Water
5.
CREATION OF EASEMENTS
Creation of easements at law and in equity:
(a)
By Express Grant
PLA ss57, 41
TLA ss63A, 64, 65, 65A, 66A and 68; Part IVA, sections 136A-136J
and s167A
(b)
Express Reservation
(c)
Statutory Easements
(d)
Implied Reservation
(e)
(i)
Easements of Necessity
(ii)
Intended Easements
Implied Grant
(i)
Easements of Necessity
(ii)
Intended Easements
(iii)
Non Derogation from Grant
(iv)
The Rule in Wheeldon v Burrows [1874-80] All ER 669
Ward v Kirkland [1966] 1 All ER 609
Stevens and Evans v Allan & Armanasco (1955) 58 WALR 1
(v)
General Words Imported by s41 PLA
Ward v Kirkland [1966] 1 All ER 609
(vi)
By Implication from the Description of Land
(vii)
Simultaneous Conveyances of Land by One Owner
(viii)
Plan of Subdivision
TLA ss167A and Part IVA
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(f)
Estoppel
Crabb v Arun District Council [1976] Ch 179.
(g)
Prescription - Long User
Prescription Act 1832 (6 Will iv 4) (WA)
Limitation Act 1935 (WA)
TLA s68
Dimasi v Piromalli [1980] WAR 57
Antonio Gangemi and Gangemi v Marilyn Watson (1994) 11 WAR 505
6.
EASEMENTS IN THE TORRENS SYSTEM IN WESTERN AUSTRALIA
(a)
Noting easements on the Certificate of Title
ss63A, 64, 65 and 66A TLA
(b)
Position of easements under the Torrens System
S68 TLA
7.
EXTINGUISHING EASEMENTS
(a)
By Agreement
TLA s129C(1)(b)
(b)
By Abandonment
TLA ss129C, 229A, 229B and 230
(c)
By Merger - Does it apply under TLA?
(d)
By Resumption for Public Purposes under the Public Works Act
(e)
By Order of the Court
TLA s129C
Perth Construction Pty Ltd v Mount Lawley Pty Ltd [1955] 57 WALR 4
8.
REMEDIES
(a)
Damages
(b)
Abatement (self help)
(c)
Injunction
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PART THREE
Calendar of Lectures
Week
Date
Part of Course
30 (1)
23-27 July 2007
31 (2)
30 July-3 August 2007
32 (3)
6-10 August 2007
33 (4)
13-17 August 2007
9(e) and 10(a) (cont’d).
34 (5)
20-24 August 2007
10 (cont’d) and 11
35 (6)
27-31 August 2007
12(a), (b) and (c)
36 (7)
3-7 Sept 2007
Torrens:
1, 2, 3, 4, 5, 6, 7(a) & 7(b)
7(b)(cont’d), 7(c), 7(d), 7(e)
& 8(a) and (b)
8(c) - (i) (cont’d) 9(a)-(d)
12(cont’d)andLeases1,23, 4
(Leases 5, 7 and 8, and CT(Retail Shops)
AA covered by students by way of
assignment)
STUDY BREAK
10 September – 14 September 2007 (Week 37)
38 (8)
17-21 Sept 2007
39 (9)
24-28 Sept 2007
40 (10)
1-5 October 2007
41 (11)
42 (12)
8-12 October 2007
15-19 October 2007
6
Mortgages
1, 2, and 3
3 (cont’d) and 4
5
5(cont’d)
Easements: 1, 2, 3 and 4
43 (13)
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29
PART FOUR
General information
POLICIES
The information in this unit outline has been prepared to answer the questions most
commonly asked by students enrolled in this unit. In addition to matters relating specifically
to this unit (eg class attendance), it summarises some of the information contained in the
Faculty of Law Handbook (and the abbreviated First Year Handbook) and other Faculty of
Law Policies.
This unit does not provide a comprehensive statement of Faculty of Law policy. You
should refer to those documents for any further information you require.
The Law School Policies you are most likely to want to refer to are:

Faculty of Law Examination Rules and Guidelines

Faculty of Law Credit Policy

Faculty of Law Cross-Institutional Enrolment Policy
Copies are available on the Law School website – Student Information Link - or by emailing
lawgen@law.uwa.edu.au.
The Hitch Hiker’s Guide to the Law School provides the Law School's policies in relation to a
number of matters
You will find an electronic copy of this guide and other useful administrative information in
the ‘Handbook’ section of the Law School home page: http://www.law.uwa.edu.au/. Copies
are also available in the Law Library for reference.
CLASS ATTENDANCE
Property II is taught in small groups. Accordingly, attendance at and participation in all
Property II classes is of the utmost importance. Property II classes will not be recorded.
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SUBMISSION OF ASSIGNMENTS
The following guidelines on submission of assignments have been extracted from the ‘Hitch
Hiker’s Guide to the Law School’.
Assignments should be submitted with a cover sheet which is available from the General
Office and contains the following information:
(a) Unit title.
(b) Student number - not student name.
(c) Lecturer's name.
(d) Lecture time and day.
(e) A declaration of the number of words.
Assignments should be typed where possible. Students are also required to retain a copy of
their assignment to safeguard against the possibility of loss or theft.
ASSIGNMENT EXTENSIONS
If a student is unable, for valid reasons, to comply with the deadlines for submission of an
assignment he or she may seek an extension of time from the unit co-ordinator prior to the
submission day. Students should contact the unit co-ordinator to discuss their difficulties as
soon as possible.
Applications for an extension of time should be in writing and should be supported by
medical certificates where appropriate.
Work conflicts and other educational
commitments will not ordinarily be considered sufficient to warrant an extension.
LATE SUBMISSION OF ASSIGNMENTS
Assignments must be handed in on time. The time for handing in assignments will be 12
noon on the due day at the Law School General Office unless otherwise advised. If a student
submits an assignment after the normal or extended date without approval, he or she will be
penalised by a loss of marks. The reason for this is simply to ensure fairness to other
students who hand in their assignments on time.
The penalty that will be incurred for all first year units is a proportional deduction of 5% of the
marks per day.
EXCEEDING WORD LIMITS ON ASSIGNMENTS
Assignments must be within the stated word limit. The main reason for this is to encourage
students to write in a clear, concise and efficient manner. If a student submits an assignment
that exceeds the word limit, he or she may be penalised by a loss of marks. Once again, as
with late submission of assignments, the reason for imposing a penalty for excessive words
is to ensure fairness to other students who have complied with the word limit.
The number of words in an assignment includes all the words in the text including definite
and indefinite articles, real nouns, headings and quotations. Footnotes are not included in
the word count provided they are used only to give citations or other brief information. If
PC/CM2/2002 prop Course Outline
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footnotes are used more extensively to provide commentary then these additional words
may be counted.
The marks will be reduced by the percentage by which the word limit was exceeded.
Students are required to make a declaration of the number of words used in their
assignment. A misstatement of the number of words may be considered by the University as
academic dishonesty amounting to student misconduct.
USE OF NON-DISCRIMINATORY LANGUAGE
The University of Western Australia Senate has affirmed support for the principle of nondiscriminatory language. Teachers in this unit are committed to the use of non-discriminatory
language in all forms of communication. Both students and staff should avoid the use of
discriminatory language in this unit. This applies to both oral and written communication.
Discriminatory language is that which excludes or refers in abusive terms to those of a
particular gender, race, age, sexual orientation, citizenship or nationality, ethnic or language
background, physical or mental ability, or political or religious views, or which stereotypes
groups of people. This is not meant to preclude or inhibit legitimate academic debate on any
issue; rather it is a means of opening debate to all without the pressures of the risk of
ridicule.
Guidelines on avoiding discriminatory language can be found in Non-Discriminatory
Language: A guide for staff and students prepared by the Equal Opportunity Advisory
Committee. This pamphlet is available from the Equity Office, or on the WWW at:
http://www.acs.uwa.edu.au/hrs/policy/part04/6.htm.
For further guidelines on ways to avoid written discriminatory language, please see Style
Manual for Authors Editors and Printers (Canberra: AGPS) 6th ed
ACADEMIC MISCONDUCT
Academic Misconduct is any activity or practice engaged in by a student that breaches
explicit guidelines relating to the production of work for assessment, in a manner that
compromises or defeats the purpose of the assessment. Students must not engage in
academic misconduct. Any such activity undermines the University’s ethos of ethical
scholarship
Academic misconduct includes cheating, or attempting to cheat, through plagiarism,
collusion or breaching the rules for the conduct of examinations.
Plagiarism is the unattributed use of someone else’s words, creations, ideas and arguments
as one’s own. It includes the use of ‘too close’ or extensive paraphrase.
Collusion is where two or more students work together and submit the same or similar work
for assessment as if it were the independent work of the student submitting it.
Plagiarism, collusion and all other forms of academic misconduct are subject to
penalties according to University Guidelines. The Law School policy seeks to explain
and implement the University Guidelines, and is to be read in conjunction with those
Guidelines.
Full details of the University Guidelines relating to Academic Misconduct, Academic
Literacy and Ethical Scholarship can be found at:
http://www.teachingandlearning.uwa.edu.au/tl/academic_conduct
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STUDENT RESPONSIBILITIES REGARDING ACADEMIC MISCONDUCT

Students are expected to know and comply with the University and Law School policies
on Academic Misconduct.

Students must inform themselves about any more specific requirements or guidelines
issued in relation to particular items of assessable work.

In the event of uncertainty as to matters of academic literacy or academic misconduct,
students should consult the University Guidelines or seek advice from the relevant unit
co-ordinator.

Students are required to include with every item of written work submitted for
assessment a declaration that the work is the original work of the individual or group
submitting the work.
ADVICE TO STUDENTS ON AVOIDING PLAGIARISM

You must not copy, in whole or in part, the words of another person and present them as
your own.
If you borrow paragraphs, sentences, or sometimes even distinctive words directly from
another source, put the borrowed words in quotation marks. Acknowledge your source in the
text itself, in footnotes or in endnotes. The description of the source should follow any
relevant conventions for citation or at least be sufficient to enable another person to identify
the source. This applies whether the source is a published book or journal, a web site, an
audio or video recording or the unpublished work of another person, including that of another
student.

You must not present the ideas of another person as your own.
If you paraphrase the words or ideas of another, cite the original source in the text itself, in a
footnote or in an endnote. Again, this applies whether the source is a published book or
journal, a web site, an audio or video recording or the unpublished work of another person.

You do not need to cite a source for matters of common knowledge.
You do not need to cite a reference for widely accepted facts, such as major historical
events (eg that Australian Federation occurred in 1901) even if you consult a reference work
to find them.

The usual expectations for citing the work of others may be relaxed in certain contexts.
Examinations:
It is acceptable, when writing under exam conditions, to refer to the ideas of an author
without providing a full reference to the source. Even then, you are still expected to attribute
the idea to the relevant author. Further, if you use the words of another, you should still use
quotation marks and indicate the source of the quote.
Assignments:
The instructions for completing a particular assignment may exclude or modify the usual
expectations regarding citation of sources. In the absence of such instructions, you
should follow the usual standard for citing sources.
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ADVICE TO STUDENTS REGARDING COLLUSION

Collusion is where two or more students work together and submit the same or
similar work for assessment as if it were the independent work of the student
submitting it. This is not acceptable. The usual expectation in the Law School is that
any work you submit for assessment consists of your own arrangement and
expression of (i) your own ideas; (ii) matters of common knowledge; and (iii) the
properly attributed words and ideas of others.
While you are free to discuss with others the issues covered in a unit or raised in an
assignment (unless instructed otherwise), you are expected to form and express your own
opinions in any work submitted for assessment.

This expectation regarding individual work does not apply where an assignment
explicitly permits or requires the work to be done in collaboration with others and to
be presented as the joint work of the group. But in such cases the work presented
must be the joint work of the members of the group alone.
PROCEDURE IN CASES OF SUSPECTED ACADEMIC MISCONDUCT
University Guideline 10 sets out in detail the procedural responsibilities for handling alleged
cases of academic misconduct.
The procedure may be summarised as follows:

A first instance of ‘minor academic misconduct’ by a student in the first 48 points of
undergraduate study in a course at UWA may be dealt with by the relevant unit
coordinator. In such cases, the unit coordinator provides appropriate counselling to
the student. No grading penalty is applied, but a record is kept of the misconduct.

In all other cases of suspected academic misconduct, the matter must be referred by
the unit coordinator to the Academic Conduct Advisor (‘the ACA’, a senior member of
staff appointed by the Dean of Law). The ACA investigates the matter, and, with the
unit coordinator, interviews the student. The student may be accompanied at the
interview by another person.
The ACA will determine the level of academic misconduct and the appropriate
penalty, having regard to the University Guidelines.

In cases that may attract penalties exceeding the failure of an individual unit, the
ACA must refer the matter to the Dean. The Dean will examine the matter and
determine the level of academic misconduct and appropriate penalty, having regard
to the University Guidelines.

In the most serious cases, the Dean will refer the matter to the Deputy ViceChancellor, who may bring the matter before the University Board of Discipline.
PENALTIES FOR ACADEMIC MISCONDUCT
University Guideline 4 provides detailed information as to the penalties that might be
expected in cases of academic misconduct, depending on the level of misconduct, the level
of study and the previous record of the student.
Students should be aware that the possible penalties include the following:
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
the student may be required to resubmit the assignment or undertake another
assignment in lieu;

the mark awarded for the assignment may be reduced to 0, without an opportunity to
resubmit the required work;

the mark awarded for the unit may be reduced to 0;

a student may be awarded a mark of N-Fail for all units in which the student is
currently enrolled in the Faculty, leading to penalties for unsatisfactory progress;

(in the most serious cases) suspension, exclusion from the Faculty, expulsion from
the University, and non-conferral of a degree.
Students intending to practise law should also be aware that they may be required to
disclose to the admitting authority any finding of misconduct against them. The authority may
consider the misconduct in determining whether the student should be allowed to practice
law.
CLASSIFICATION OF PLAGIARISM
University Guideline 5 makes a preliminary classification of the level of plagiarism according
to the percentage of the submitted work that has been plagiarised: less than 10% is
regarded as minor; 10-25% as moderate; and more than 25% as major. However, in
determining the level of misconduct, particular significance will be attached to contextual
factors such as intent, previous misconduct, level of study, and any mitigating
circumstances.
RECORD OF ACADEMIC MISCONDUCT
In all cases where academic misconduct is established, the relevant information is kept on a
confidential student record. This information does not appear on the student’s academic
transcript, but may be disclosed by persons responsible for external reporting where
required by bodies such as admitting authorities.
APPEALS
Students may appeal against findings of academic misconduct and/or consequent penalties
according to the ‘Regulations for Student Conduct and Discipline – Section 19’. Advice on
appeals is available from the Guild Education Office.
SUPPLEMENTARY AND DEFERRED EXAMINATIONS
Supplementary Examinations
Students who fail a unit will only be permitted to sit a supplementary examination if they fall
into one of the following categories:
(i)
A student who receives a final mark of between 45 and 49 per cent in Legal Process,
Contract 1, Criminal Law 1, Torts 1, Property 1 or Administrative Law 1 will be
awarded automatic supplementary assessment in the unit.
(ii)
A student who receives a final mark of between 45 and 49 per cent in Contract 2,
Criminal Law 2, Torts 2, or Property 2 will be awarded automatic supplementary
assessment in the unit provided that the student is in the second semester of their
Law studies.
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(iii)
A student who is in the final semester of their LLB degree and who receives a final
mark of between 45 and 49 percent in a unit will be awarded automatic
supplementary assessment provided that the unit in question is the one remaining
unit required to complete the LLB degree.
(iv)
A student who receives a final mark of between 45 and 49 per cent in a unit where
the only form of assessment available is an examination (other than a “take-home”
examination) will be awarded automatic supplementary assessment in the unit.
Students re-examined by supplementary examination are classified pass or fail.
Enquiries concerning entitlement to, and scheduling of, supplementary examinations should
be directed to the Associate Dean.
The supplementary examination will be on all material covered in the unit (ie material
covered in Semesters 1 and 2 in the case of a year long unit).
Deferred examinations
A student may be permitted to take a deferred examination in one or more units if the Dean
of the Faculty is satisfied that for medical or other exceptional reasons the candidate was
either (a) substantially hindered in preparation for an examination; or
(b) absent from or unable to complete an examination.
Students wishing to apply for a deferred examination must complete the necessary
application form and hand the application form and any attachments to the Associate Dean.
The latest date such an application can be submitted is three University working days
after the date of the relevant scheduled examination.
Requests for special consideration
The Board of Examiners may give special consideration to medical or other exceptional and
unavoidable factors which may have substantially hindered the student's preparation for or
performance in an examination in cases where the student was still actually able to sit the
scheduled examination and could not be available for or benefit from taking a deferred
examination.
There is no discretion to award further supplementary assessment outside of those
conditions listed above. Students in the Faculty of Law who apply for special consideration
will, in appropriate cases, be awarded deferred examinations. Applications should be made
to the Associate Dean before the examination period, or where that was not possible within 3
working days of the examination.
APPEALS AGAINST ACADEMIC ASSESSMENT
If students are unhappy with their mark for assessable work in a Law School unit, they
should, in the first instance, speak to the Unit Coordinator.
If students feel they have been unfairly assessed, they have the right to appeal their mark by
submitting an Appeal Against Academic Assessment form to the Head of School and Faculty
Office. The form must be submitted within twelve working days of the formal despatch of
your unit assessment.
It is recommended that students contact the Guild Education Officers to aid them in the
appeals process. They can be contacted on +61 8 6488 2295 or
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education@guild.uwa.edu.au. Full regulations governing appeals procedures are available in
the University Handbook, available online at
http://www.publishing.uwa.edu.au/handbooks/interfaculty/PFAAAA.html .
Information and advice on the appeal procedure and a booklet entitled Appeals Against
Academic Assessment is available from the Associate Dean, Faculty Administrative Officer
and the Student Guild.
Students who have been awarded a fail grade and who are contemplating an appeal should
be aware that in the Law School, as a matter of course, all fail scripts are required to be
second-marked before the publication of results.
CHARTER OF STUDENT RIGHTS
This Charter of Student Rights upholds the fundamental rights of students who undertake
their education at the University of Western Australia.
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.
Please refer to the guild website the full charter of student rights, located at
http://www.guild.uwa.edu.au/info/student_help/student_rights/charter.shtml.
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
ENQUIRIES
General enquiries of a non-academic nature
General enquiries of a non-academic nature, such as enrolment questions and
admission requirements should be directed in the first instance to the Faculty
Administrative Officer (6488-2961) in the Student Centre, Law Link Building.
Enquiries of an academic nature
Questions of an academic nature, such as selection of electives and overloads should be
directed to the Associate Dean of the Faculty. Appointments to see the Associate Dean can
be made with Law School Reception.
Enquiries that relate to the administration or assessment of a particular unit should be
directed to the unit co-ordinator.
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