Equity
Winter Session 2009
Alysia Debowski
Questions from last class
Textbooks
 Good faith v good conscience
 Missing class
 Contact details
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 alysia@largestprime.net
 0412879243
Revision
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Alvin contracted with Barry. Barry breached the contract.
Although Alvin suffered no loss as a result of the breach,
Barry made a profit as a direct result of the breach. Alvin
sued Barry for breach of contract. Because damages at
common law would have been nominal, and because the
facts and circumstances of the case were such that the
court thought it inappropriate for Barry to retain his illgotten profits, the court ordered Barry to account in
equity to Alvin for the profits Barry had made.
Is the court’s decision an example of the fusion fallacy or
an illustration of the maxim ‘equity will not suffer a wrong
to be without a remedy’?
Introduction
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Who is the assignor?
Who is the assignee?
What exactly is being assigned?
What is the nature of the property or interest being assigned?
What is the intended form of the assignment?
What is the test for assignments in that form?
Is writing required?
Is the assignment intended to take effect immediately?
Is it voluntary or for consideration?
If the assignment is voluntary, can the assign or (the “donor”) recall the gift?
Smith v Perpetual Trustee Co Ltd (1910) 11 CLR 148
Comptroller of Stamps (Vic) v Howard Smith (1936) 54 CLR 614
Voluntary Assignment of Legal
Property
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Assignment of Property Assignable at Law
Conveyancing Act 1919 (NSW), s 12 (Choses in Action)
William Brandt’s & Sons v Dunlop Rubber Co. [1905] AC
454
Milroy v Lord (1862) 4 De GF & J 264; 45 ER 1185
The First “Leg” of Milroy v Lord
Anning v Anning (1907) 4 CLR 1049
Corin v Patton (1990) 169 CLR 540; 92 ALR 1
Noonan v Martin (1987) 10 NSWLR 402
Conveyancing Act 1919 (NSW),
s 12
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Any absolute assignment by writing under the hand of the assignor (not purporting to
be by way of charge only) of any debt or other legal chose in action, of which express
notice in writing has been given to the debtor, trustee, or other person from whom the
assignor would have been entitled to receive or claim such debt or chose in action,
shall be, and be deemed to have been effectual in law (subject to all equities which
would have been entitled to priority over the right of the assignee if this Act had not
passed) to pass and transfer the legal right to such debt or chose in action from the
date of such notice, and all legal and other remedies for the same, and the power to
give a good discharge for the same without the concurrence of the assignor: Provided
always that if the debtor, trustee, or other person liable in respect of such debt or
chose in action has had notice that such assignment is disputed by the assignor or
anyone claiming under the assignor, or of any other opposing or conflicting claims to
such debt or chose in action, the debtor, trustee or other person liable shall be
entitled, if he or she thinks fit, to call upon the several persons making claim thereto to
interplead concerning the same, or he or she may, if he or she thinks fit, pay the same
into court under and in conformity with the provisions of the Acts for the relief of
trustees
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Voluntary assignments (cont.)
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Voluntary Assignments of Torrens Title Land
Brunker v Perpetual Trustee Co Ltd (1937) 57 CLR 555
Norman’s Case per Windeyer J at 28-9
Cope v Keene (1968) 118 CLR 1
Taylor v FCT (1969) 123 CLR 206
Olsson v Dyson (1969) 120 CLR 365
Grey v Australian Motorists & General Ins. Co. P/L [1976] 1 NSWLR
669
Bogdanovic v Koteff (1988) 12 NSWLR 472
Corin v Patton (1990) 169 CLR 540; 92 ALR 1
Costin v Costin (1997) 7 BPR 15,167
Voluntary assignments (cont.)
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The Second “Leg” of Milroy v Lord
Re Rose; Rose v IRC [1952] Ch 499
Re Rose [1949] Ch 78
Assignments of Property Not Assignable at Law
Fortescue v Barnett (1834) 3 My & K 36; 40 ER 14
Re Patrick; Bills v Tatham [1891] 1 Ch 82
Norman’s Case per Windeyer J, at 31-34
Shepherd v FCT (1965) 113 CLR 385, per Kitto J, at 397
Voluntary assignments of equitable
property
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Smith v Perpetual Trustee Co. Ltd (1910) 11 CLR 148 at
163
Comptroller of Stamps (Vic) v Howard-Smith (1936) 54
CLR 614
Timpson’s Executors v Yerbury [1936] 1 KB 645 at 664
Voluntary assignments of equitable
property (cont.)
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Dealings in the Form of Direct Assignments
Norman’s Case per Windeyer J, at 30
FCT v Everett (1979) 143 CLR 440 at 446-7
Comptroller of Stamps v Howard-Smith per Dixon J at
622
Ward v Duncombe [1893] AC 369, per Lord McNaghten
at 392
Timpson’s Executors v Yerbury [1936] 1 KB 645 at 658
PT Ltd v Maradona Pty Ltd (No 2) (1992) 27 NSWLR
241
Hagan v Waterhouse (1992) 34 NSWLR 308 at 382G to
387A
Voluntary assignments of equitable
property (cont.)
Dealings in the Form of Declarations of Trust
 Grey v IRC [1958] Ch 690 at 715
 Comptroller of Stamps v Howard-Smith, per Dixon J at
621-2
 Paul v Constance [1977] 1 All ER 195
Voluntary assignments of equitable
property (cont.)
Dealings in the Form of Directions to the Trustee
(a) to deal with the equitable estate
 Howard-Smith per Dixon J, at 622
 Grey v IRC [1960] AC 1
 Parker & Parker v Ledsham [1988] WAR 32
(b) to deal with the legal estate
 Vandervell v IRC [1967] 2 AC 291
 DKLR Holding Co (No. 2) P/L v Commissioner of
Stamp Duties (NSW) (1982) 56 ALJR 287
Voluntary assignments of equitable
property (cont.)
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Dealings in the Form of a Release
Crichton v Crichton (1930) 43 CLR 536
The Requirement of Writing
Conveyancing Act 1919 (NSW), s 23C
Secretary Department of Social Security v James (1990)
95 ALR 615
Hagan v Waterhouse (1991) 34 NSWLR 308 at 385–6
Hunter v Moss [1994] 3 All ER 215
Conveyancing Act 1919 (NSW),
s 23C
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(1) Subject to the provisions of this Act with respect to the creation of
interests in land by parol:
(a) no interest in land can be created or disposed of except by writing
signed by the person creating or conveying the same, or by the
person’s agent thereunto lawfully authorised in writing, or by will, or by
operation of law,
(b) a declaration of trust respecting any land or any interest therein
must be manifested and proved by some writing signed by some
person who is able to declare such trust or by the person’s will,
(c) a disposition of an equitable interest or trust subsisting at the time of
the disposition, must be in writing signed by the person disposing of the
same or by the person’s will, or by the person’s agent thereunto lawfully
authorised in writing.
(2) This section does not affect the creation or operation of resulting,
implied, or constructive trusts.
The Rule in Strong v Bird
Strong v Bird (1874) LR 18 Eq 315
 Re Mulholland (1916) 33 WN (NSW) 89
 Benjamin v Leicher (1998) 45 NSWLR 389
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Donationes Mortis Causa
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Smith v Casen (1718) 1 P Wms 406
Duffield v Elwes (1827) 1 Bligh (NS) 497 at 534; 4 ER
959 at 972
Bayliss v Public Trustee (1988) 12 NSWLR 540
Sen v Headley [1991] 2 All ER 636
Assignments for Value
Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999
Tailby v Official Receiver (1888) 13 App Cas 523
Chang v Registrar of Titles (1976) 137 CLR 177, per
Mason J at 184.
Assignment of Legal Property for
Valuable Consideration
Last v Rosenfeld [1972] 2 NSWLR 923
 Rochefoucauld v Boustead [1897] 1 Ch
196
 Bannister v Bannister [1948] 2 All ER 133
 Allen v Snyder [1977] 2 NSWLR 685
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Assignment of Equitable Property
for Value
Comptroller of Stamps (Victoria) v
Howard-Smith (1936) 54 CLR 614
 Conveyancing Act 1919 (NSW) s 23C
 Adamson v Hayes (1973) 130 CLR 276
 Oughtred v IRC [1960] AC 206
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Assignments of Future Property
The Definition of Future Property
 Re Lind [1915] 2 Ch 345
 Tailby v Official Receiver (1888) 13 App
Cas 523
 Norman v FCT (1963) 109 CLR 9
 Shepherd v FCT (1965) 113 CLR 385
 Williams v IRC [1965] NZLR 395
 McLeay v IRC (1963) 9 AITR 265
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Assignments of Future Property
(cont.)
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The Basis for the Enforcement of Assignments
of Future Property
Holroyd v Marshall (1862) 10 HLC 191; 11 ER
999
Tailby v Official Receiver (1888) 13 App Cas 523
Palette Shoes Pty Limited v Krohn (1937) 58
CLR 1, at 27, by Dixon J
McIntyre v Gye (1994) 122 ALR 289
Property which cannot be Assigned
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Personal Contracts
Nokes v Doncaster Amalgamated Collieries Ltd [1940]
AC 1014
Peters v General Accident and Life Assurance Co [1937]
4 All ER 628
Bare rights to Sue
Glegg v Bromley [1912] 3 KB 474
Trendtex Trading v Credit Suisse [1980] 3 All ER 721;
[1981] 3 WLR 766
Monk v ANZ Banking Group Ltd (1994) 34 NSWLR 148
Applying the theory…
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Mary and John purchased a house under Torrens title
together as joint tenants.
Not long after, Mary was diagnosed as having terminal
cancer, and reevaluated her life priorities.
Mary told her former boyfriend Sven that she wanted him to
have her share in the house, and handed him an executed
memorandum of transfer and a letter to Mary’s solicitor
directing her to release the certificate of title.
Mary’s solicitor refused to release the certificate of title to
Sven without John’s permission.
Before the issue could be resolved, Mary was hit by a freak
bolt of lightning and died.
Is Sven entitled to Mary’s interest in the house?
In summary
What information do you need to know to
determine if an assignment is effective?
 What are the three key points you would
include in your exam notes to summarise
this class?
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Next class
Fiduciary Obligations
 Equity & Trusts, Chapter 4
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