Commercial Law Course Notes

Commercial Law Course Notes

Personal Property ... 4

Defining personal property ... 4

Real and personal property ... 4

Possession ... 5

Custody ... 5

De facto and actual possession... 5

Legal possession... 5

Constructive possession ... 5

Interference with possession ... 5

Remedies... 6

Loss of personal property rights ... 6

Intermixture ... 6

Accession... 7

Fixtures... 7

Challenging notions of personal property ... 8

Property rights in software ... 8

Virtual Property ... 8

Commercial exploration of medical research ... 9

Property right in spectacle ... 9

Retention of title ... 9

Retention of title clauses and the common law ... 9

Difficulties ... 9

Fixtures ... 10

Fixtures test – degree of Annexation... 10

Fixtures test – object of Annexation ... 10

Cases for fixtures ... 10

Accessions ... 10

Examples of Accessions ... 11

Commingled goods (intermixture) ... 11

Ownership and possession ... 11

Rights of possessor ... 11

Types of possession ... 12

Who has possession? ... 12

Finders keepers? ... 12

‘Finders’ cases ... 12

Formalities and personal property ... 13

Personal Property Securities Act ... 14

What does the PPSA apply to? ... 14

Deemed security interests ... 15

Not covered by the PPSA ... 15

The creation of a security interest ... 15

Attachment ... 15

Attachment and perfection ... 16

Perfection by registration ... 17

Perfection by possession ... 17

Perfection by control ... 17

Vesting in the grantor ... 18

Specific rules that apply to the proceeds from collateral ... 18

Third party can take personal property free of security interest ... 18

Extinguishment rules under the PPSA ... 18

Unperfected security interest ... 18

Defeats in serial numbers ... 18

Motor vehicles ... 19

Collateral sold in the ordinary course of business ... 19

Determining priority where composite collateral security interests exist ... 19

Purchase money security interest (PMSI) ... 19

When PMSI take priority over other security interests ... 19

Re Maiden Civil (P&E) Pty Ltd; Albarran v Queensland Excavation Services Pty Ltd ... 20

The Australian Consumer Law ... 21

Rationale and purpose for the ACL ... 21

Key provisions ... 21

Unfair Contract Terms ... 22

12.0: Introduction ... 22

12.1: Rationale for consumer protection ... 22

12.2: Overview ... 22

12.3: Operative Conditions ... 22

12.3.1 Consumer Contract ... 22

12.3.2: Standard Form Contract ... 23

12.4: Excluded Terms ... 23

12.4.1 Terms defining the subject matter (s 26(1)(a)) ... 23

12.4.3 Terms setting the upfront price (s 26(1)(b)) ... 23

12.4.3 Terms expressly permitted by law (s 26(1)(c)) ... 23

Consumer Guarantees ... 25

Acquiring goods as a consumer ... 25

Nine consumer guarantees ... 25

Ordinarily acquired for personal, domestic or household use or consumption... 25

Consumer guarantees for goods ... 26

Guarantees as to title ... 27

Fitness for purpose – s55 ... 27

Correspondence with description – s56 ... 28

Correspondence with sample – s 57 ... 28

Misleading and deceptive conduct ... 29

Introduction ... 29

Objective of s 18 ... 29

Conduct in trade or commerce ... 29

Intermediary liability ... 30

Examples of misleading and deceptive cases ... 31

Comparative advertising ... 31

Unconscionable Conduct ... 32

Unconscionable conduct ... 32

Elements of unconscionability ... 32

Example case: Commercial Bank of Australia v Amadio (1983) 151 CLR 447 ... 33

Sections 21 and 22 of the ACL ... 33

Section 22 factors ... 33

Drawing the line on unconscionable conduct ... 34

Electronic Commerce ... 35

What is e-commerce? ... 35

Regulation... 35

Major Statutory Provisions ... 35

Validity of electronic transactions ... 35

Writing requirements ... 35

Signature requirements ... 35

Production of documents ... 36

Timing of dispatch – amendments made after textbook ... 36

Timing of receipt – amendment made after textbook ... 36

Do the rules about timing / receipt apply to contracts? – amendments ... 36

Invitation to treat or offer?... 36

Can you make a valid contract with a computer? And can computers make contracts (which bind you) themselves? – amendments ... 36

What if you make a mistake when sending electronic info? – amendment ... 36

Electronic banking and financial transactions ... 36

Regulation ... 36

Personal Property

Defining personal property

Personal property defined as being ‘sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another’ Moore v Regents University of California (1990)

Is a broad definition, extends to ‘innominate and anomalous interests’ Commonwealth v Western Australia (1999)

Not just property -> also relationship and source of rights • Ie right to exclude from property

• ‘Bundle of rights’ Moore v Regents University of California (1990): o Concept of property is abstract o Instead of referring to a tractor, concept of property refers to a ‘bundle of rights’. Importantly:

 Right to possess, right to use, right to exclude others, dispose of by gift or sale  Same bundle does not attach itself to all forms of property

Real and personal property

• Personal has two sub categories: choses in action (something you can’t touch) and choses in possession (something tangible)

Personal property is not real property The North Shore Gas Company Limited v The Commissioner of Stam[ Duties (NSW) (1940)

These two types embrace every property known to law Barton v Australian Consolidation Press Ltd [1970]

Real property includes land and buildings on the soil Re Leher and the Real Property Act 1900-1956 [1960]

• Land is any ground, soil or earth or whatsoever ibid

• Everything naturally contained within the land (exc. Deposits reserved for the crown – petroleum and minerals) Wade v NSW Rutile Mining Co Pty Ltd (1969)

• Attached to the land in such a way they have become fixtures Holland v Hodgson (1872) • Intangible rights attach to land (ie easements) Municipal District of Concord v Coles (1905)

Personal property is classified as chattels real or chattels personal:

• Chattels real: confined to interests closely concerned with real property, traditionally leasehold interests AMP Society v Gregory (1908)

• Chattels personal: choses in action or choses in possession o Choses in action: enforceable by legal action Torkington v Magee [1902]  Eg: right to sue for sum of money Loxton v Moir (1914)

 Inc, shares in company and debts.

 Right to action covers a spectrum inc. right to bring action directly or by counterclaim Commbank v Horvath, sue for contractual obligation Minister for Health v Brambles Australia, action in tort ibid

o Choses in possession: must have physical existence ie holding a book (intellectual property rights are choices in action)

Possession

Essential concept in personal property. A normal incident of ownership

Can be evidence of ownership or entitlement to personal property Russell v Wilson (1923) Possessory title is good against everyone but the true owner ibid

Interference with possession give standing to sue in: detinue, conversion and trespass

At least five different types of possession:

• Custody, actual possession or de facto possession, constructive possession, legal possession, a right to possess

A person who hold chattel is in possession of it The Anderson Group v Tynan Motors (2006)

Rights to possession can coexist under constructive possession

Custody

Custody occurs when the party is holding the goods, but they do not have ownership or possession at law FCT v Australia and New Zealand Banking Group (1979)

• Example: Employee using employers goods in course of her employment.

• Are in custody of employee, but they are also within the effective possession of the employer

De facto and actual possession

De facto possession and actual possession are co-extensive

• Both involve the complete present personal physical control of the property to the exclusion of others Moors v Bruke (1919)

• Is an extensive concept and is not limited to physical custody William v Douglas (1949) o Wide enough to include hiding

o Need implicate knowledge of the thing existence is required He Kaw The v The Queen (1984)

Legal possession

Possession in the eye of the law

De facto or legal possession is in legal possession

Can obtain legal possession wrongfully

• A person wrongfully dispossessed may retain the rightful possessor

Constructive possession

Right to possession without legal possession

Can arise in trusts (White v Morris (1852)), bailment and in SOG contracts

Interference with possession

Where there has been interference with possession, there are three actions which can be taken to claim damages: torts of trespass, conversion or detinue Gollan v Nugent (1988)