LLB204 COMMERCIAL AND PERSONAL PROPERTY LAW ANSWER TEMPLATES

LLB204 COMMERCIAL AND PERSONAL PROPERTY LAW ANSWER TEMPLATES

TABLE OF CONTENTS FIXTURES AND CHATTELS... 3 OWNERSHIP... 4 POSSESSION... 6 BAILMENT... 8 AGENCY... 11 MISLEADING CONDUCT... 14 SALE OF GOODS... 18 CONSUMER GUARENTEES (GOODS)... 24 CONSUMER GUARENTEES (SERVICES)... 25 Page 2 of 26

FIXTURES AND CHATTELS WHERE GOODS ARE ATTACHED TO LAND ONLY 1.Identify the parties (X v Y) 2.Identify the issue o Does an item form part of the land? o Whether the circumstances, viewed objectively, evidence an intention on the part of the owner (the affixer), that the item should remain permanently on the land? General Maxim: What is annexed to the land becomes part of the land Blackburn J in Holland v Hodgson When Does a Chattel Become a Fixture? In the absence of a contractual provision to the contrary, two rebuttable presumptions for determining intention of the owner of the chattel/item being affixed: 1. If the item is attached by more than its own weight à fixture 2. It the item is merely fixed by its weight à chattel ONUS is on the person asserting to the contrary The degree of annexation as well as the intention of the parties needs to be considered Even if fixed by only its own weight à can be fixture due to intention: Reid v Smith Annexation and Intention Objective test considering the circumstances of each case 1. Degree of annexation: To what extent has the chattel been affixed Even slight annexation à sufficient to raise the presumption that it is a fixture Can it be detached without substantial injury to the thing itself or to that to which it is attached? (Coroneo) 2. Object of annexation: Was the chattel affixed for better use of the land, or for better use of the chattel? Purpose of Annexation o Be an improvement to the premises = fixture o To enable its better enjoyment as a chattel = chattel (Leigh v Taylor) Test: Whether it has been fixed with the intention that it remain in the position permanently or temporarily: Australian Provincial Assurance Co v Coroneo o Remain in position permanently or for an indefinite period of time = fixture (Commissioner of State Revenue v Snowy Hydro) o Remain in position for some temporary purpose = chattel (Jordan CJ in Coroneo) Other Considerations Whether items are transportable and whether it is in the commercial interest to remove them: Ipp J in Eon Metals v Commissioner or Taxation Nature of the chattel - whether it is an essential part of the land/building: Belgrave Nominees Period of time it was affixed to the land Degree or Mode of Annexation - Can it be detached without substantial injury to the thing itself/ to which it is attached: Coroneo Essential to the theme = fixtures: Re Whaley Page 3 of 26

OWNERSHIP 1.Identify the parties (X v Y) 2.Identify the issue o Who owns the goods/property? Original Acquisition: Acquisition of Ownerless Things 1. Creation à Original Acquisition derived through the creation of something new E.g. Copyright, Offspring of Domestic Animals: CL Case 2. Abandonment à Acquisition of ownerless things. Elements o Physical abandonment; and o Intention to abandon Result: Owners title divested and the property becomes capable of acquisition Contractual provisions may negative intention to abandon: Moorhouse v Angus and Robertson (No 1) Inactivity does not mean abandonment: Moorhouse Derivative Acquisition: Transfer from a Previous Owner 1. Accession à The attachment of a minor chattel to a dominant chattel where the identity of the principal chattel has not changed (GOODS ARE ATTACHED TO EACHOTHER, NOT LAND) (eg truck and engine) Default CL rule: the owner of the principal chattel owns the accessory, obtains title to the necessary chattel: McKeowen v Cavalier Yachts If can remove goods à property rights will not be affected by their combination If cannot remove goods à accessory becomes part of dominant à property rights to accessory are destroyed à owner of minor chattel can get damages Injurious Removal Test: Where the accessory cannot be removed from the principal without the destruction of, or serious injury to, the chattel as a whole Result: Generally, ownership in a chattel can only pass if the owner intends, however the effect of the doctrine of accession à ownership of the accessory is transferred to the owner of the dominant chattel where the necessity of the case requires it 2 issues: o The necessity of the case Matter of practicability If the accessory cannot be identified or if it has been incorporated to the extent that it cannot be detached: Rendell o Which is the principal and which is the accessory chattel? Usually straight forward, easy to determine which is the principal item which continues to exist and which is the accessory which does not: McKeowen v Cavalier Yachts Page 4 of 26

2. Commingling à Mixing of homogenous goods with no change in the physical or chemical state (eg oil) If commingling agreed o As is Agreed; or o As tenants in common proportionate to their contributions Commingling NOT Agreed o Accidental Mixing Can you determine the contribution? - YES à Each party takes as tenants in common in proportion to their contribution: Coleman v Harvey - NO à Each party takes an tenants in common in equal shares: Buckley v Gross o Deliberate Mixing Resultant mixture is owner as tenants in common Uncertainty resolved in favour of the innocent wrongdoers interest is subordinated Innocent party only gets back THEIR CONTRIBUTION If innocent party suffers loss from mixing (ie quantity lost) à Claim damages 3. Specification à Mixing of goods where product is transformed into a different state by application of some physical, mechanical or chemical process (eg production of car, egg being laid) Specification was Lawfully Done (eg steel into pressure vessels) o Derived product belongs to the maker (defendant): Associated Alloys v Metro Engineering and Fabrications Specification was Unlawfully Done (eg corn into whiskey, iron into a tool) o Derived product belongs to the owner of the original material (plaintiff) who is entitled to the new derived product or its improved value in an action for damages: Silsbury v McCoon 4. Sale à Contract of sale transferring ownership of the goods form seller to buyer 5. Assignment à Immediate transfer of existing proprietary right (eg chose in action - intangible) from the assignor to assignee Must be in accordance with s199 PLA 6. Gift à Transfer with the full intention that it should not be returned to the donor Elements: o Delivery of possession Can be actual or constructive Involve surrender of possession and control of it o Intention of the donor to transfer the property right to the donee Donor must communicate the intention to the donee o Intention of the donee to accept the transfer o No valuable consideration Page 5 of 26