Category Archives: Blog

Australia’s Current Copyright Exceptions

Australia's Current Copyright Exceptions

This section will review the current status of Australia’s copyright exceptions law. Pursuant to section 33 of the Copyright Act 1968 (‘Copyright Act’), copyright owners have ownership of their works for 70 years. After 70 years, the copyright no longer exists and people are allowed to use the material for free. If the author died less than 70 years ago, a person must ask author’s literary heirs for permission. If the author has not died and the duration of copyright has not passed 70 years, a person must seek copyright exceptions to use copyright materials. However, the Copyright Act stipulates that the use of copyright materials for ‘fair use’ does not amount to the inurnment of the right of the copyright owner. Sections 40,41,43A and 44 in Div 3, 4, 4A, 4B and 7 of the Copyright Act specify actions which do not constitute infringement of copyright works: research or study, criticism or review, temporary reproductions made in the course of communication, and inclusion in short extracts in collections for use by places of education.

The concept of fair dealing was first mentioned in the landmark case of Gyles v Wilcox,[1] as the doctrine of fair abridgement, which would later evolve into the concept of fair use. Lord Hardwicke acknowledged that the abridgment of larger works into small excerpts was a necessary evil of educational advancement and consistent with the purposive interpretation of the act as being “encouragement of learning”. In the Oxford dictionary, the term ‘fair use’ has the following definition: brief excerpts of copyright materials may be allowed to be used under certain situations including education use such as teaching, researching or new reporting without permission from the original owner of the materials. Education use means that copyright material may be used in schools, colleges and universities as well as libraries and other non-profit organisations which are also considered educational institution.[2] Rich Stim, a US lawyer, defined “Educational Purposes” as the use of copyright materials in non-commercial institutions for teachers and students to prepare or plan non-commercial studies for classes, workshops or seminars.

In Australia, the term ‘fair use’ for the purpose of education in the classroom is not regulated in the current legislation. Although, a educational copying scheme allows teachers to use copyright materials  without a copyright clearance, yet it is limited. This is the reason that the ALRC is reviewing the current provision of the copyright exceptions to make sure it is suitable for the digital environment. Teachers, students, parents and schools are all expecting to be able to use the most up-to-date and effective teaching materials and methods for the benefits of Australian students. Since, current copyright laws are years behind and cannot keep up with the advancing technology, teachers are facing complex copyright issues. The current copyright exception provision does not make sense in a digital age.[3] Therefore, the current provision should be amended and the provision of the fair use of copyright materials should be introduced to maximise the educational benefits and experiences for teachers and students.

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[1] Gyles v Wilcox (1740) 26 ALL ER 490.

[2]  Rich Stim, Educational uses of Non-coursepack  Materials (October 2010) <http://fairuse.stanford.edu/overview/academic-and-educational-permissions/non-coursepack/#what_is_an_educational_use>.

[3]  Education Services Australia, Copyright and the digital economy <http://www.esa.edu.au/australian-law-reform-commission-copyright-and-the-digital-economy>.

Fuller’s natural law & the Nazi legal system

Q) How is Fuller's natural law different from classical natural law? Is it really natural law, bearing in mind the possibility that the Nazi legal system could meet Fuller's criteria?

I would, here, like to post my own ideas on this topic. Alex said that an evil legal system, or an evil law, would be legal under Fuller’s framework. I believe this question seeks totally subjective answers, and I agree with Elizabeth’s opinion. People will obviously have different views on this matter, views that have been formed by the environment they grew up in, or perhaps by their culture, perhaps by both. My answer is yes or no, depending on how the word, ‘morality,’ is interpreted.

So what is moral? If defining “moral” as perceived in Western culture, we might approach this question from a different viewpoint from, for instance, that of Asian history. (You might want to skip this section as it is not really related to the course content). In Asia, many countries follow a philosophy based on the theories of Confucius. In those cultures, the term “moral” is always emphasised by most of the ancient scholars. Learned men like Confucius (Kong Fuzi), and Mencius.

Looking at it from my perspective, these ancient opinions are quite similar to the conceptual naturalism advocated by Aquinas. Today, many people who were related to Nazi’s claim they do not carry any responsibility for their cruel judgments and inhumane actions. They assert that they were only obeying prevailing laws. They did not consider whether their decisions, and subsequent actions, were based on morality or not.

Fuller's theory of natural law is different from that of classical natural law, but it still has a connection to natural law. It cannot be 100% natural law - but it can still be natural law. Hart objects to Fuller's suggestion that the principles of legality constitute an internal morality. Viz; Fuller rejects the views of the classical naturalists that there are necessary moral constraints on the content of law. Instead Fuller suggests, “procedural mechanisms” as follows:

"What I have called the internal morality of law is ... a procedural version of natural law ... [in the sense that it is] concerned, not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be" (Fuller 1964, 96- 97).

Fuller also identifies the connection between law and morality at a higher level of abstraction than the classical naturalists. (I have to read more content and articles before I will properly be able to explain this concept).

"A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all." (Fuller 1964, 39)

I hope my thoughts are clear and cogent and that they not out of focus. I would like to thanks you all for reading my post.

* This is written by me during discussion.

Legal theory

  • Natural law: Universal law, that is above human made the law. Unjust law is not a law. You don't need to follow it.
  • Positivism: There is no morality, law is just what is written as a law.
  • Utilitarianism: It must be distinguished between liberalism and it doesn't matter everyone has an individual right, sometimes, the right should be breach in order for the society. Vexatious act, if you go to the court too many time, we are going to take away your right. There are problems of the grade, and greatest number. e.g Torturing
  • Marxism: Capitalism is responsible for dividing, the rich and poor. Rich is richer and poor is poorer because we all go to work, we can paid not for the value, we paid for producing. What you paid what you create it goes to the owner and ricer. Law is created by the power due to the power class.
  • Feminism: It focuses on the gender, law has been created by the man, so the law is interested in man. It gives the different value between man and women.  Only male perspective. Law is privilege for me over the women.

[Law Assignment] Foundation of Law Written Legislation Memo Sample

Vexatious Proceedings Act 2005 (Qld)

The purpose of the legislation

The aim of the Vexatious Proceedings Act 2005 (QLD) is to prohibit a person who consistently takes unnecessary legal action (e.g., presents a case that has already been rejected several times) disrespectful of court's practices and keeps persisting or abusing the judicial process, to prevent overuse of the legal system of courts or tribunals. Not only does it prevent the abuse of the court's process but also any action that causes any delay or detriment of the judicial process without reasonable grounds. This act was first introduced and spoken about by the Honorary Minister, L.D. Lavarch. Queensland is the first state to implement this legislation in Australia. A newly proposed Vexatious Proceedings Bill 2005 repealed the act of 1981. It also updated and added new terms:[1]

  • Restriction of legal actions against the persons acting in concert with vexatious litigants;
  • Certain the criteria applies to the Supreme Court for its determinations; and
  • Specify and clarify the process relating to litigants and their actions

 

The structure of the legislation and how it achieves purposes

There are three different types of proceedings[2] (i.e., proceedings regarding a particular matter, against a particular person and in a particular court or tribunal). The act defines specific behaviours of vexatious proceedings[3] such as behaviours abusing the process of a court or tribunal, instituted to harass or annoy, committed to cause delay or detriment, or for another wrongful purpose. The act also defines a proceeding instituted or pursued without reasonable ground.

The Act is composed of a total of five parts.  The main ideas are introduced in Part 2, 3 and 4. In Part 2, vexatious proceeding orders have six sub categories and define who are entitled to preparing applications for vexatious proceeding orders[4] who can make vexatious proceeding orders,[5] when the order may be varied or set aside,[6] when the order may be reinstated,[7] when the notification is made and register of orders.[8]

Part 3, Particular Consequences of Vexatious Proceeding Orders, explains the consequences of vexatious proceeding orders prohibiting institution of proceedings[9] and sets the rules necessary for an application to leave to institute a proceeding,[10] when the process can be dismissed for leave,[11] and when an application can be granted for leave.[12]

Part 4, Transitional Provisions for Repealed Vexatious Litigants Act 1981, regulates what the definition of the Transitional Provisions for Repealed Vexatious Litigants Act,[13] is what will happen when the repealed act continues to apply to applications made before commencement,[14] and how to process orders under the repealed act that are taken to be orders under the current act.[15]

 

Key provisions of the Vexatious Proceeding Act 2005 (Qld) include:

  • Not everyone can apply for vexatious proceeding orders. Section 5 clearly clarifies who can apply to the court for vexatious proceeding orders. These people are the Attorney-General, the Crown solicitor, the register of the court, a person against whom another person has instituted or conducted a vexatious proceeding, and a person who has a sufficient interest in the matter.[16]
  • Section 6 strongly indicates those who will be considered, by the court, to be making vexatious proceeding orders. The court applies this rule to a person who frequently institutes or carries out vexatious proceedings in Australia, as well as a person who cooperates with a person who illegally acts based on the purpose of vexatious proceedings.
  • According to s 3, there are three types of proceedings:

 

(a) Particular matter proceedings

(b) Particular person proceedings

(c) Particular court or tribunal proceedings

 

Vexatious proceedings include:

 

(a) Abusing the process of a court or tribunal

(b) Causing delay of court processes by harassing or annoying

(c) Acting without reasonable ground

(d) Causing delay of court processes by harassing or annoying to achieve wrongful purpose.

 

  • According to Part 3 s10, a person who is given a vexatious proceedings order cannot institute proceedings of a particular type in Queensland without the leave of the Court.[17] Also, under s13, the confederate may not institute proceedings of a particular type in Queensland without the leave of the Court.
  • Sections 11, 12 and 13 discuss the procedures of application for leave to be able to institute a proceeding, along with how to dismiss an application for leave and grant an application for leave.

 


[1] Explanatory Notes, Vexatious Proceeding Bill 2005(Qld) 1-2

[2] Vexatious Proceeding Act 2005 (Qld)

[3] Ibid s3.

[4] Ibid s5.

[5] Ibid s6.

[6] Ibid s7.

[7] Ibid s8.

[8] Ibid s9.

[9] Ibid s10.

[10] Ibid s11.

[11] Ibid s12.

[12] Ibid s13.

[13] Ibid s14.

[14] Ibid s15.

[15] Ibid s16.

[16] Ibid s5.

[17] Ibid s13.

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[Law Study Exam Note] Assault in Tort Law

Assault: A direct threat by the defendant that places the plaintiff in reasonable apprehension of imminent harmful or offensive contact with her or his person by the defendant or some person or thing under the defendant's control: Rixon v Star City Casino

 

1) Direct threat

2) Create apprehension of imminent harm

3) Objectively reasonable

4) Intention

5) Consent

 

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[Revenge Porn Law] Its Time to Consider Law Reform of Revenge Porn Law in Australia

[Revenge Porn Law] Its Time to Consider Law Reform of Revenge Porn Law in Australia

 

The Criminal Code Act 1995 (Cth)

There are only a few relevant sections which may cover the crimes relating to revenge porn in the CCA (Cth). There is no legal definition of the term 'revenge porn' in the current CCA (Cth). The section closest to potentially protecting revenge porn victims is 474.17.

Section 474.17 of the CCA (Cth) states that it is an offence if the person uses a carriage service to menace, harass or be offensive, and the person can be imprisoned for 3 years. ‘Carriage service’ is defined in the Telecommunication Act 1997.[1] Using a ‘carriage service’ means that if a person takes someone’s intimate photo using a mobile phone and distributes the photo on the internet and social media, a person can be charged with 3 years of imprisonment.

In R v Daniel McDonald and Dylan Deblaquiere case (‘Daniel Case’)[2] was applied under section 474.17(1) since a carriage service was used by perpetrators to menace, harass or cause offence for perpetrators. In this case, Daniel McDonald, a cadet of the Australian Defence Force Academy, captured the act of sexual intercourse with a webcam while he was having sex with a female cadet and it was broadcasted through Skype to Dylan Deblaquiere who was a cadet. This live video was sent without the female's consent and Dylan Deblaquiere watched it with other cadets in Dylan's dormitory. A jury found Daniel and Dylan guilty of the use of a carriage service to menace, harass or cause offence. They were both charged with section 474.17(1). However, Justice Nield took into account the age of the perpetrators along with their surrounding circumstances.[3] The judge gave them an opportunity to take part in rehabilitation. He gave Daniel two 12-month good behaviour orders and a single 12-month good behaviour order to Dylan rather than giving them 3 years of jail time based on section 474.17.

The Daniel Case shows that the current provisions are not sufficient to protect revenge porn victims or to prevent revenge porn from happening. Not every state has a revenge porn law, therefore, the commonwealth level of law should enact revenge porn laws to protect all revenge porn victims across Australia. The Criminal Code Amendment (Private Sexual Material) Bill 2015 (‘CCAB’) was developed by the Australian Labour Party in October 2015 and proposed amendments to the CCA (Cth) to further protect revenge porn victims. New sections[4] were introduced into Division 474 of the CCA (Cth).[5] Section 474.24E incorporates the phrase ‘private sexual material’ and specifies the offence by adding specific actions such as ‘transmit’, ‘makes available’, ‘published’, ‘distributes’, ‘advertise’ or ‘promotes’. It was not defined in the existing section 471.17. Section 474.24F specifies the action of threatening to reveal private sexual material. Previously, a threat was only covered under section 474.15[6] which only dealt with a threat of killing not a threat toward revenge porn victims. For these reason, the CCAB should have been regulated. However, the CCAB lapsed.[7] If the CCAB was passed, the two perpetrators, Daniel and Dylan could have been charged under section 474.24E.

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[1] Telecommunication Act 1997 s7; a service for carrying communications by means of guided and/or unguided electromagnetic energy.

[2] R v Daniel McDonald and Dylan Deblaquiere [2013] ACTSC 122.

[3] By the time, there were only twenty years old. They both were able to escape from receiving jail time since Justice Nield said that the offence was too ambiguous to give a sentence as sexual images were only distributed to a few people without consent.

[4] The new sections are 474.24D, 474.24E, 474.24F, 474.24G, 474.H and 474.24J.

[5] These provisions will help revenge porn victims as it focuses on individuals who transmit or distribute through a carriage service; make a threat that causes distress or harm; and possess, or control, produce, supply or obtain the private sexual images of others without consent.

[6]Criminal code Act 1995 (Cth) s 474.15 Using a carriage service to make a threat.

[7] Criminal Code Amendment (Private Sexual Material) Bill 2015 was lapsed due to prorogation of first session of 44th Parliament  on 15 April in 2016. < http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5552>.

Koowarta v Bjelke-Peterson (1982) 153 CRL 168

In Koowarta v Bjelke-Peterson (1982) 153 CRL 168, Chief Justice Gibbs, Aickin, and Wilson said that not every international treaty gives Commonwealth power to make laws under section 51 (xxix). Gibbs CJ added that:

"If section 51 (xxix) empowers the Parliament to legislate to give Commonwealth would be able to acquire unlimited legislative power. There would be no filed of power which the Commonwealth could not invade, and the federal balance achieved by the Constitution could be entirely destroyed."

He also dissented that the external affairs power should be distinguished from the other powers under section 51 in its capacity for almost unlimited expansion. Defining which affairs were of “international character” was a difficult task for the court. The interpretation has been criticized following the court decision in R v Burges; Ex parte Henry (1936).[1]


[1] Jim Reeves, Implications of the External Affairs Power <www.beyondfederation.org.au/jr_12.html>.

Hinch v Attorney-General (Vic) (1987) 164 CLR 15

The Hinch Case

Hinch v Attorney-General (Vic) (1987) 164 CLR 15<http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1987/56.html?stem=0&synonyms=0&query=title(Hinch%20and%20Attorney-General%20)>

Derryn Hinch, who is a radio journalist, had made sub judice broadcasts. In his broadcasts, Hinch mentioned not only the accused's name but also previous convictions of the accused. He also made comments on the accused.  Hinch alleged that the priest was guilty of the new charges, however the trial was upcoming by the time of a former Catholic clergyman who was charged for child molestation. This case is considerably relevant to this problem since it is one of the representative sub judice case in Australia that shows how much the media influence the open justice and public interest.


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Banerji v Bowles [2013] FCCA 1052

The Banerji Case

Banerji v Bowles [2013] FCCA 1052.<http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2013/1052.html>

Michaela Banerji, who was a public affairs officer, regularly left critical comments of the Minister for Immigration as well as criticising Government policy using social media. Eventually, the respondent believed that her behaviour breached the APS Code of Conduct and as a result the respondent intends to terminate her employment. The applicant, Michaela Banerji, sought declaratory orders which contends that her implied freedom arises out of, in particular, comments which is stated by Justice Kirby in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd yet it was dismissed. This is a Federal Circuit Course case which is relevant to the given scenarios because in Australia, there is no constitutional freedom of speech.

The parliament has the power for certain limitation to regulate speech

A ban has been imposed on the uttering of offensive language in the public places by the High Court of Australia, apart from its implied freedom of political communication. No person has the right to use offensive, horrifying or insulting words in the public places. In the Summary Offence Act [1] dictionary, the term 'public place' is defined as a place that is open to or used by the public. Although, the parliament has the power to  regulate speech, the incivility or intimidation act is prohibited from the legitimate legislative end, as per the limitation of Queensland Court. The use of abusive language in a political discussion is restricted by the High Court as it is considered to be against civility. One of the significant case which deeply influences on the law related the public speech is Coleman case.[2]

Patrick Coleman handed out pamphlets in the Townsville on 26 March 2000 then was charged  with distributing material which contains allegation of corruption of police officers with insulting words that breach s7 of the Vagrants Gaming and Other Offences Act.[3]  He appealed the High Court to consider the scope of the implied constitutional freedom of political communication and the test to determine legislative invalidity of regulation that prohibits the freedom and examine issues of police powers of arrest.


[1] Summary Offences Act 2005 (QLD).

[2] Coleman v Power (2004) 220 CLR 1.

[3] Vagrants Gaming and Other Offences Act 1931 (QLD) s7.

Statutory Unconscionability Section 21 (1) in Australian Consumer Law

Section 21 (1) in Australian Consumer Law states that:

A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person (other than a public listed company); or

(b) the acquisition or possible acquisition of goods or services from a person (other than a public listed company);

engage in conduct that is, in all the circumstances, unconscionable.

ACC v Berbatis Holdings (1939) 63 CLR 649

In ACC v Berbatis Holdings,[1] the majority of the judges of the High Court focused particularly on the difference between 'special disability' and 'hard bargain'. The appeal is dismissed because parties are not going to be always equal in power and the appellants had no special disadvantage or disability. In this case, it is more likely an issue of  'hard bargain', rather than 'special disability'.


[1]  ACC v Berbatis Holdings (1939) 63 CLR 649, 683.

Blomley v Ryan (1956) 99 CLR 362

Fullagar J stated in Blomley v Ryan[1] that 'special disadvantage' refers to circumstances including poverty of any kind, sickness, age, infirmity of body or mind, drunkenness, illiteracy or lack of education, and lack of assistance or explanation where assistance or explanation is necessary.


[1] Blomley v Ryan (1956) 99 CLR 362.

Garcia v National Australia Bank Ltd (1998) 194 CLR 395

The fundamental principle according to which equity acts, namely that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct: Garcia v National Australia Bank Ltd.[1]


[1]  Garcia v National Australia Bank Ltd (1998) 194 CLR 395 [32].

Alati v Kruger (1955) 94 CLR 216

A misrepresentation allows the representee to elect to rescind the contract. At common law, rescission of a contract could only be ordered where there was evidence of fraud and precise restitution of the status quo was possible: Alati v Kruger.[1]


[1]  Alati v Kruger (1955) 94 CLR 216.

Gould v Vaggelas (1985) 157 CLR 215

According to Wilson J in Gould v Vaggelas,[1] the rules of inducement are:

 

  • If the representee does not rely on the representation, he or she has no case;
  • If a representation is made to induce the representee to enter into a contract and that person in fact enters into a contract, it can be inferred that the representation induced the contract;
  • The inference may be rebutted, for instance, by showing that the representee, before he or she entered into the contract, either:
  1. Actually knew the rule facts; or
  2. Regardless of his or her knowledge, made it plain that he or she did not rely on the representation.

[1]  Gould v Vaggelas (1985) 157 CLR 215.

Edgington v Fitzmaurice (1885) 29 Ch D 459

A misrepresentation is founded upon the existence of a false statement of past or present fact. A representation need not be the sole or decisive inducement and it suffices if it was a real inducement: Edgington v Fitzmaurice.[1]

'The object of the issue of the debentures were those which were stated in the prospectus the Defendants were stating a fact which was not true. If they knew that it was not true, or made it recklessly not caring whether it was true or not, they would be liable.'[2]


[1]  Edgington v Fitzmaurice (1885) 29 Ch D 459.

[2]  Edgington v Fitzmaurice (1885) 29 Ch D 459, 479-480.

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Courts have exercised jurisdiction to set aside contracts and other dealings on a variety of equitable grounds including fraud, misrepresentation, breach of fiduciary duty, undue influence and unconscionable conduct: Commercial Bank of Australia Ltd v Amadio.[1]  Mason J referred to with approval by the court in Vadasz v Pioneer Concrete (SA) Pty Ltd.[2]


[1]  Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, 461.

[2]  Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 111.

Hadely v Baxendale (1854) 9 Exch 341

According to the principles in Hadely v Baxendale:[1]

The measure of the damages recoverable by the building owner for the breach of a building contract is the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contact. The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.


[1]  Hadely v Baxendale (1854) 9 Exch 341.

Mullins v Kelly-Corbett [2010] QCA 354

In Mullins v Kelly-Corbett,[1] Muir, Fraser JJA, and Boddice J gave judgment in favour of respondent, in the sum of $160,265.47, being $130,398.90 less deposit moneys of $15,000, plus the interest. QDC awarded the respondent indemnity costs. Evidence supported findings that the respondent was ready, willing, and able to complete the contract on 13 January, and the appellant failed to establish that the respondent was not entitled to terminate the contract for the appellant's failure to settle on that date.


[1]  Mullins v Kelly-Corbett [2010] QCA 354.

Hadley v Baxendale (1854) 156 ER 145

Where two parties have made a contract which one of them has broken, the damages the other party ought to receive in respect of such a breach of contract should be such that may fairly and reasonably be considered as arising naturally: Hadley v Baxendale.[1]  Damage will not be too remote if it can be reasonably considered to:

 

  • Arise naturally according to the usual course of things from the breach; or
  • Be such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as a probable result of the breach.

[1]  Hadley v Baxendale (1854) 156 ER 145.

Caprice Property Holdings Pty Ltd v McLeay [2015] 1 Qd R 206

In Caprice Property Holdings Pty Ltd v McLeay,[1]  Fraser JA, Boddice J and Jackson J stated that the buyer was in breach of contract by failing to settle and that the breach was a breach of an essential term because time was of the essence under clause 6.1. The sellers were ready and willing to complete the contract in accordance with its terms.


[1]  Caprice Property Holdings Pty Ltd v McLeay [2015] 1 Qd R 206.

Associated Newspapers v Banks [1951] 83 CLR 322

The court applied the test of essentiality in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1] to the Associated Newspapers v Banks.[2]

'The High Court held that it was a condition and stated that the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise.'


[1]  Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, 641-2.

[2]  Associated Newspapers v Banks [1951] 83 CLR 322.

Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632

The test of essentiality is stated by Jordan CJ in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1] as follows:

'The test for essentiality is that the promisee would not have entered into the contract unless assured of strict or substantial performance of the promise and that   ought to have been apparent to the promisor.'


[1]  Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632, 641-2.

Garcia v National Australia Bank (1998) 194 CLR 395

In Garcia v National Australia Bank (1998) 194 CLR 395, the plaintiff did not understand the purport and effect of the transaction and the lender did not explain the transaction or ensure that someone 'competent, independent and disinterested' had explained it to the plaintiff. The High Court held that the lender is to be taken to have understood that, as a wife, the surety may   repose trust and confidence in her husband in matters of business and    therefore to have understood that the husband may not fully and accurately         explain the purport and effect of the transaction to his wife.[1]


[1] Garcia v National Australia Bank (1998) 194 CLR 395 [31].

Louth v Diprose (1992) 175 CLR 621

In Louth v Diprose (1992) 175 CLR 621, the appellant knew that the respondent had a very deep emotional attachment to the appellant so  appellant took an advantage of this to find  a place to stay. The appellant  threatened him to suicide, the respondent took this seriously and purchased the home in the name of the appellant. The High Court held that the gift should be set aside because it was unconscionable for the appellant to retain, in the circumstances, the benefit of the gift.

Pavey & Matthews Pty Ltd v Paul [1987] HCA 5

In Pavey & Matthews Pty Ltd v Paul [1987] HCA 5, the plaintiff entered into the oral contract with the defendant to renovate the cottage.  The defendant agreed to pay a reasonable remuneration for the plaintiff work, however, when the work was completed and the plaintiff charged $62,945 but the defendant only paid $36,000 . The plaintiff claimed the remaining of the money under Quantum merit yet the defendant argued that the contract was not enforceable under the legislation of Builders Licensing Act 1971.[1]


[1] Builders Licensing Act 1971 (NSW).

British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1912] AC 689

Mitigation is required for the plaintiff has to take reasonable steps to minimise the loss. However, in this case, the plaintiff could not be able to repairs the projector which requires at least one week to be fixed it means that he had to cancel some of his performance: British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd.[1]

Viscount Haldane LC  in British Westinghouse held that " a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach and debar him from claiming any part of the damage which is due to his neglect to take such steps".

 


[1]  British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1912] AC 689, (Viscount Haldane) L.C commented that a plaintiff the duty of taking all reasonable steps to mitigate the loss consequence on the breach.

Koufos v Czarnikow Ltd [1969] 1 AC 350

In Koufos[1], based on the charter Party of 15th October, 1960 the Koufos chartered 3,000 tons of sugar and to carry it to Basrah. The vessel left Constanza on 1st November and arrived at Basrah on 2nd December which cause a delay of nine days and also had an effect on sugar price on the market. Koufos claimed the difference in the loss of profit and held that it is not too remote.


[1]  Koufos v Czarnikow Ltd [1969] 1 AC 350.

 

[호주석박사장학금] International Postgraduate Research Scholarship (IPRS)

한국의 장학제도인 BrainKorea 21 (BK21)와 비슷하게, 호주 정부가 대학의 주요 연구분야를 육성하기 위해 각 대학에서 국제 학생들에게 지원하는 연구 장학금이다. 대부분 대학에서 같은 이름으로 제공하고 있으며 높은성적과 잠재력이 우수한  국제 학생에게 주어지는 장학금으로 학비와 생활비가 함께 지원된다. 학교마다 학비와 생활비의 규모가 조금씩 다르며 순위에 따라서 지원금이 가장 많은 장학금부터 조금씩 낮은 장학금으로 제공된다.

 

Scholarships are open to international students of all countries (except New Zealand) and are available for a period of two years for a research masters degree (2년의 리서치 석사과정) or three years for a research doctorate degree (3년 박사과정). The scholarship covers tuition fees and health cover costs for scholarship holders, and health cover costs for their dependants (학비, 건강보험 커버가 된다). From 2011, commencing IPRS recipients will be able to apply for an Australian Postgraduate Award.


Victoria

2016 Research Block Grants IPRS Grant amounts
Deakin University $401,118
Federation University Australia $68,599
La Trobe University $450,342
MCD University of Divinity $68,598
Monash University $1,802,938
Royal Melbourne Institute of Technology $518,940
Swinburne University of Technology $244,546
The University of Melbourne $2,141,741
Victoria University $167,045

 

 

New South Wales

2016 Research Block Grants IPRS Grant amounts
Charles Sturt University $137,197
Macquarie University $554,549
Southern Cross University $117,822
The University of Sydney $2,205,627
University of New England $205,796
University of New South Wales $1,969,983
University of Newcastle $518,940
University of Technology, Sydney $375,983
University of Western Sydney $274,394
University of Wollongong $499,565

 

 

Queensland

2016 Research Block Grants IPRS Grant amounts
Bond University $68,599
Central Queensland University $68,599
Griffith University $510,038
James Cook University $290,627
Queensland University of Technology $724,736
The University of Queensland $2,014,493
University of Southern Queensland $137,197
University of the Sunshine Coast $68,598

[호주석박사장학금] Endeavour Postgraduate Scholarships And Fellowships

Endeavour Postgraduate Scholarship은 호주 정부에서 주최하는 장학금 프로그램으로 대학원 이상의 과정 (coursework 또는 research) 지원자를 대상으로한다. 석사 과정인 경우 2년, 박사 과정인 경우 4년까지 지원되는 생활비와 학비 포함한 전액 장학금 을 받을 수 있으며 학문 영역에 대한 제한이 없다.  4월에 장학금 공지가 뜨고 6월에 마감되어 11월 중에 발표가 난다.


신청 자격 조건

  • 만 18세 혹은 그 이상
  • 신청자는 반드시 신청 가능한 국가의 시민권 또는 영주권 소유자이어야 한다.
  • 제안된 프로그램은 2017년 1월 1일부터 2017년 11월 30일 안에는 시작하여야 한다. 이미 프로그램을 시작하였거나 2017년 전에 시작하는 프로그램으로는 신청 할 수 없다.
  • 필요한 서류를 영문으로 구비
  • 2015년 1월 1일 이후로 호주 정부의 장학금을 혜택을 받고 있는 사람은 제외한다.
  • 과거에 Endeavour scholarships and fellowships 의 혜택을 받았던 경우, 다시 신청할 수 없다.

구비서류(모든 서류는 영문으로 준비)

  • 대한민국 시민권/영주권 증빙서류 (원본대조필공증 필요함)
  • 성적표 (원본대조필공증 필요함)
  • 2명의 추천인으로부터의 Referee Reports (온라인으로 작성 가능)
  • 호주대학교 입학 허가서 (Offer Letter)
  • 영어실력 증빙서류(원본대조필 공증 필요함)

 

영어실력을 반드시 증빙서류를 통해 입증하여야 한다.

  • IELTS (Academic Test): 각 band가 6.0 이상, Overall  6.5점 이상
  • PTE (Academic Test): 각 band가 50점 이상, Overall 58점 이상
  • TOEFL (Paper Based Test (PBT)): TWE 4.5점을 포함, 580점 이상
  • TOEFL (Internet Based Test (IBT)): 총점 79 이상으로 Writing 21점 이상, 다른 section도 19점이상
  • CAE (Cambridge English Advanced): 각band가 169점 이상, 총점 176점 이상

영어를 사용하는 국가 (영문 홈페이지에서 해당 국가확인 요함)에 거주하며 영어로 진행되었던 대학교 이상의 레벨의 학업을 1년이상 수료한 경우에는 영어시험 성적을 제출하지 않고 수료에 대한 공증된 증빙 서류만 제출하면 된다. (온라인 과정은 인정되지 않는다.)

 

선발 기준

  • 학업 분야와 관련된 업무 경험 (40 %)
  • 목표가 뚜렷한 학업과  전문적인  Study Plan (20 %)
  • Endeavour Scholarships and Fellowships참여의 기회가 신청자의 학업적인 또는 전문 커리어적인 면에서 어떻게 도움을 줄 수 있는지에 관한 Statement (20%)
  • Endeavour Scholarships and Fellowships의 혜택을 받게되는 신청자는 어떠한 방법으로 한국과 호주 양국간의 지속적인 교류와 협력 증진에 기여 할 수 있는지에 관한 Statement (20%)

장학금 혜택

총 장학금액은 호주달러로 박사 과정은 4년동안 $272,500, 석사 과정은 2년동안$140,500까지 지급된다. (학비: 한 학기당 $15,000 여행비용: $3,000 정착비용: $2,000 생활비: 매달 $3,000, 의료보험 및 여행자 보험 포함)
신청 방법

신청은 온라인으로만 가능하며, 호주 연방정부 교육.훈련부의 영문 홈페이지를 통해서 가능하다. 기타 장학금 조건, Referee's Report (영문 사이트에 있는 양식서 사용 요함), 선발기준 및 구비서류 관련내용을 아래 웹사이트의 Applicant Guideline를 반드시 참고 하여야 한다.


Endeavour Scholarships and Fellowships Homepage
https://internationaleducation.gov.au/endeavour%20program/scholarships-and-fellowships/about/pages/default.aspx

[해외유학장학금]관종이종환교육재단 Scholarship in South Korea

Scholarship in South Korea


지원가능한 국적:대한민국 국적 보유자로서 대한민국에서 고등학교를 졸업한 자에 한한다. (해외 영주권자, 이중국적자 지원불가) 예외: 주재원파견 등 학부모 국외근무로 부득이 국외에서 고등학교 과정을 수학한 경우 예외된다.


유학 대상국: 미국, 중국, 일본, 싱가폴, 홍콩, 영국, 독일, 프랑스, 이탈리아, 호주, 캐나다, 러시아, 스위스 총 13개국


입학허가 장학생: 해외유학장학생선발규정시행규칙 <우수대학, 우수전공, 미국대학원 한함>에 해당하는 자로서  입학허가를 받아 당해 연도 말까지 입학하는 자


유학전공: 공학, 이학, 인문사회 및 예체능계열


제외 유학전공: MBA, JD, LLM, MD, DNP, PHARM.D 과정 제외


지원자 연령: 학부 만 24세, 석사 만 30세, 박사 만 32세로 지원연령 제한 / 군필자 (면제자 및 여자는 군필자기준 적용)


보다 자세한 내용은 여기서 확인가능합니다: http://www.ikef.or.kr/selection/right

[Global Law Notes] The use of force in international law

The “Sources” of Public International Law

Download Global Law Note, I received 98.5/100 for the final exam.

This note was created based on the lecture sldies+ text book (Ademola Abass, International law, (Oxford University Press, 2nd ed, 2014) ) + tutorial materials + research:

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  1. Q) What are the conditions and the limits for the use of force in the exercise of the right to self-defence?

 

United Nations regulate the use of force by State. Article 2(4) of the Charter of the United Nations provides that:

All Members shall refrain (그만하다, 삼가하다) in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the Purpose of the United Nations.

A threat is unlawful under Article 2(4) if the threatened force would be illegal when used. However, if an attacked State is threatening to retaliate, the threat is lawful because the force, if used, would be in self-defence. There are exception to use the force.

Article 2(6) of the UN charter:

The UN Organisation undertakes to ensure that non-member states of the UN act in accordance with these principles in so far as they relate to the maintenance of international peace and security.

Exceptions to the prohibition of the use of force

The UN Charter provides for three exceptions to the prohibitions on the use of force:

  • use of force in self-defence (Article 51)
  • use of force authorized by the UN Security Council, commonly called 'collective security'
  • use of force against former enemy State (Article 107)

When the use of force can be allowed? (언제 무력을 쓸 수 있는가?)

  1. Self-defence (Based on Article 51)

According to the article 51 of the UN Charter, States that have suffered armed attacks can defend themselves either individually or collectively that is, an attacked State can call on other States to help to defend it against the attackers. The Charter did not create this right, but merely recognised its existence, therefore, the phrase 'inherent right'.

Article 51 contains armed attack that the Charter does not define the its term. Threaten alone cannot be constituted as armed attack. Armed attack occurs when the regular forces of one State attack the territory of another, be it by land, sea or airspace.

Collective self-defence is defined under Article 51 that:

It is also clear that it is the State which is the victim of an armed attack, which must form and declare the new that it has been so attacked. There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will be declared itself to be the victim of an armed attack.

According to this statement, it is necessary for an attacked State specifically to invite others to defend it.

Using force should be the only the way to response is necessary and the use of force should be proportionally.

Anticipatory  self-defence (예상되는 정당방위)*****

Anticipatory self-defence occurs where self-defence is used in anticipation of an imminent armed attack. A State claiming to have taken action in anticipation of an attack must prove that

  1. there is overwhelming evidence of imminent attack on it
  2. it acts out of necessity
  3. its action is proportionate

The question of anticipatory self-defence is particularly important for two reasons. First, Article 51 was not designed with nuclear or biological weapons in mind - that is, the two types of weapon that might be used without troops crossing the border of a country. Furthermore, if the purpose of armed attack is to cause maximum damages to the facilities of another country - especially its military facilities - then we can add technological attacks as another deadly means by which one country can now attack another without visibly crossing its borders: Article 51은 핵무기나 생화학 무기를 고려하지 못했다.

Secondly, Article 51 did not envisage (예상하다) such phenomena as terrorist organizations becoming one of the most rabid (과격한) users of force against States.

S Hall has stated that an armed attack is now a prerequisite for invoking the right of self-defence in international relations. Notably, such a use of force would fail within the scope of 'aggression' within the meaning of the Definitions of Aggression, United Nations General Assembly Resolution 3314 (XXIX) that states at Articles 5 (1):

            No consideration of whatever nature, whether political, economic, military or      otherwise, may service as a justification for aggression.

Use of force authorized by the UN Security Council, commonly called 'collective security'

The prohibition on the use of force is any action duly authorised by the UN Security Council, these are generally referred to as 'Collective security'. Once international peace is breached, the measures available to the Security Council (유엔안전보장 이사회) do not start with the use of preponderant force against the party in breach of the peace. Rather, collective security (UN의 집안안전보장) starts with the Security Council taking a series of steps aimed at calming the tension between the States involved in a conflict.

 

Self defence of terrorist organizations

States are not the only entities that can use force or cause armed attacks against States. The world has witnessed attacks by non-State entities such as terrorist organisations and rebel groups, in particular, since the September 2001 attacks on the USA.

Article 2(4) does not prohibits States from using force against non-State entities, or non-State entities from using force against one another or against States, although non-State entities cannot defend themselves under Article 51 of the UN Charter when they are attacked by States.

The distinction between 'Collective security' and 'Collective self-defence'

In a collective security system, the collective force is used primarily internally against members of same group, such as the UN whereas collective self-defence is used to protect a member of the same group, usually form a State or entity outside the group. Another distinction between two is that whereas collective security requires prior authorization, collective self-defence does not. However, a collective self-defence action could still be the subject of investigation after it has occurred, but a collective security action usually starts with a determination, which provides the basis for legal justification.

What is the Security Council? * (Tutorial Question)

The Security Council is a core body of the United Nations' to take primary             responsibility for the maintenance of international peace and security. Five countries sit as "permanent members" along with ten elected members with two-year terms. Since 1990, the Council has dramatically increased its activity and it now meets in nearly continuous session. It dispatches military operations, imposes sanctions, mandates arms inspections, deploys election monitors and more.

 

What can the Security Council do when it suspects or knows that a State has breached Article 2(4) of the UN Charter? * (Tutorial Question)

When there are issues arising which violate Article 2(4) of the UN Charter by a State, UN security council inform the international community. This is called a 'determination' that there is a threat to peace, breach of the peace, or act of aggression. The security Council makes this determination by adopting a resolution, usually under Chapter 6 of the UN Charter.

What does the term collective security refer to? * (Tutorial Question)

There was several attempts to define collective security but  still there is no clear definition of collective security. Hans Kelsen states that collective security is commonly used when the protection of the right of States, the reaction against the violation of the law.

Is collective security allowed under the UN Charter? * (Tutorial Question)

Under the Charter of the United Nations, collective security is provided for in Articles 39-51 that is critical to the ability of the Security Council to maintain international peace and security. However, the UN Charter does not use the phrase 'collective measure' which appear in the foregoing provision, means the same thing as 'collective security.'

Is the use of force the first and only step available to the UN when taking steps to for the collective security of humanity? * (Tutorial Question)

No. UN take an enforcement action which must satisfy itself that the crisis occurring inside a State threatens international peace and security.

 

Salomon v A Salomon & Co Ltd [1897] AC 22

Salomon v A Salomon & Co Ltd [1897] AC 22

In Salomon, Salomon owned a shoemaking business and set up a company with his wife and five sons. He sold the business at £38,782 which was evaluated higher than the original value. When the company went to default, the liquidator who worked on behalf of Broderip alleged that Salomon breached fiduciary duty by selling his business at an excessive price. However, the court held that the company was properly registered and because of separate legal entity principle, Salomon does not have any liability for the company's debt. Post Salomon, the principle of the separate legal entity eventually came to be applied to corporate groups.[1]


[1] Phillip Lipton, 'The Development of the Separate Legal Entity and Limited Liability Concepts in Company Law' (2012) Department of Business Law and Taxation, Monash University.

[Employment Law Notes] Employment law dependent on common law of contract?

Employment law dependent on common law of contract? Discuss these principles with Honeyball’s article on “The Primacy of Contract.”

 

The contract is a subject of the English common law, its rules and principles originated from case law.[1] The concept of 'employment' was newly created  and added into contract law and it has become a coat hanger for both employees and employers. The expression “contracts as a coat hanger” has several underlying elements. First, the term "contract" is used when two parties, an employee and an employer, consciously enter into an agreement and agree upon certain terms that will apply to their engagement. Second, the law of contracts, as an independent regime of law is not only theoretical but also serves to bring recourse to any party that may feel aggrieved in the employment context. Last, other non-contractual remedies come to play when there is no remedy in the proper definition of contract law.

 

The author, Simon Honeyball says that the common interpretation of the perception of employment is a contractual concept of which there are three different forms.[2] The first approach is to define and regulate the concept of employment from the social aspect which is a prevailing analysis of the employment relationship between employers and employee.[3] The second approach is to compare contractual and status elements of employment, which is more abstract than the first approach and concentrates on non-contractual remedies. The third approach is to consider the statutory intervention which has made employment law dependent on the common law of contract.

 

Honeyball’s article on “The Primacy of Contract” can be dissected in several forms. First, contract law stems from common law and as such, different explanations can be implored from the primacy of contract. The multiple meanings of contract can be looked at from the perspective of the judicial background in the interpretation of contracts. Before statute law, contract law had been in application and judges used to and still do, rely on previously decided cases that fall under contract law. Honeyball argues that since there has been a progressive move from contractual remedies to those provided under statute, the contract or employment law has its ground norms in contract agreements.

 


[1] Richard Stone and James Devenney, The Modern Law of Contract (Routledge, 2015) 2.

[2] Simon Honeyball, 'Employment Law and the Primacy of Contract' (1989) 18 Industrial Law Journal 97

[3] Simon Honeyball, 'Employment Law and the Primacy of Contract' (1989) 18 Industrial Law Journal 97.

Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859

In Maher v Honeysett & Maher Electrical Contractors Pty Ltd [2005] NSWSC 859,  David John Maher, the first plaintiff,  and Mark William Honeysett, the second defendant, began trading in partnership as electrical contractors in 1989. In 1994, they established the Honeysett & Maher Electrical Contractors Pty Ltd (‘HME’) becoming equal shareholders and the only directors of that company. The business  ceased on December 19, 2003 because there was a substantial dispute between the parties in relation to termination of HME's business and division of its assets. Mr Honeysett sought leave of the court, under s237 of the Corporations Act, to defend the proceedings on behalf of the company that Mr. Maher has acted in breach of fiduciary duty in relation to HME. HME was entitled to the declaratory relief sought from Mr Maher on the company’s behalf by Mr Honeysett on the grounds of laches and acquiescence that the applicant was not acting in good faith.

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2008) 68 ACSR 132

To proceed the legal action in the name of MFW, the plaintiff must obtain court approval under section 237. Section 237 of the Corporation Act states that the court must grant the application if all of the criteria are satisfied. First, it is probable that the company will not bring the proceedings itself, properly take responsibility for them, for the steps in them. In Cassegrain v Gerard Cassegrain & Co Pty Ltd (2008) 68 ACSR 132, Claude Cassegrain was a director of the Gerard Cassegrain & Co Pty Ltd which owned the "Dairy Farm". He fraudulently transferred the title of the Dairy Farm to himself and his wife, Felicity, who was a joint tenants however, she was not aware of the fraud. Because the company did not bring the proceeding against Claude Cassegrain, shareholders  of the Gerard Cassegrain & Co Pty Ltd brought the application seeking leave under section 236 and 237 to commence legal action in the name of the company against Claude and Felicity. In this case, the MFW directors refused to pursue legal action against the Flash and Associates Solicitors since one of the partners at Flash and Associates Solicitors is Matilda's brother.

Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313

In Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313, Ms Swansson and Mr Highland were divorced in May 1997. Ms Swansson was a director and shareholder of the RA Pratt Properties Pty Ltd ('RAPP'). Mr Highland was a director of the RA Pratt Properties Pty Ltd between in 1992 and in 1997. The plaintiff alleged contraventions by Mr. Highland regarding his duties to RAPP as a director under sections 180, 181 and 182  of the Corporations Act 2001 (Cth) as well as under the general law. Ms Swansson brought the application pursuant to section 237(1) of the Corporations Act against Mr Highland in the name of RAPP. The court concluded that Ms Swansson was not acting  in the best interests of the company  therefore the application would not be granted. Here, if the plaintiff, John Carlton, wins the case, the company will not need to pay litigation cost and will receive the damages or compensation which will cover all the loss. As the Flashy and Associates Solicitors arranged in relation to professional indemnity insurance, it would not cause serious damages to the firm. Therefore, the plaintiff made a decision in the best interest of the company.

[Corporation Law Notes] Hannon v Doyle (2011) 82 ACSR 259

In Hannon v Doyle (2011) 82 ACSR 259, Mr David Hannon ('Hannon') applied for leave to bring proceedings on behalf of Afro Pacific Holdings Pty Ltd ('APH') and Afro Pacific Capital Ltd ('APC') under section 237 of the Corporations Act. As a member and former director of the companies, Mr. Hannon qualified under section 236(2)(a)(i) and (ii) of the Corporation Act, leaving the court to assess whether he met the criteria of section 237. Hannon believed that a serious question existed and argued that APC never paid a dividend, even though there were profits out of which a dividend could prudentially have been paid, thus a claim under section 232 arose. The Judge concluded that a serious question existed in relation to Hannon's claim of oppression regarding the non payment of dividends so that not only sections 237(2)(a) and (b) were met but also, section 237(d) was met. However, the judge stated that absence of dividends per se is insufficient for the claim under section 232, because the claim must be assessed in terms of the whole circumstances.

[Corporate Law Notes] Minority Shareholders Can Bring Proceeding Under Section 236 & 237 of Corporations Act 2001

 

Statutory Derivative Action

 

Corporation Law: Moot Court Script

 

Mathias Furniture Wholesalers Ltd ('MFW') appointed the Flashy and Associates Solicitors to review three new lease agreements for their new warehouse space on the Gold Coast. MFW entered into a lease agreement in accordance with the legal advice given by the Flashy and Associates Solicitors. Due to the negligent legal advice given by the Flashy and Associates Solicitors, MFW suffered considerable losses because of outrageously high fixed rentals for twelve months.

 

In Foss v Harbottle (1843) 2 Hare 461, the court held that the plaintiff were minority shareholders thus they did not have a right to control the meeting. This case protected the company from legal action that may potentially be brought by multiple shareholders in the name of the company.

 

However, Common Law Derivative Action was abolished  and is now replaced by section 236 and 237 of the Corporations Act 2001 (Cth) ('Corporations Act'). Section 236(1) of the Corporation Act states that a person may bring proceedings on behalf of a company, or intervene in any proceedings to which the company is a party, for the purpose of taking responsibility on behalf of the company for those proceedings, or for a particular step in those proceedings if the person is a member, former member, the person is entitled to be registered as a member, of the company or of a related body corporate, an officer or a former officer of the company.

 

In Parke v Daily News [1962] Ch 927, minority shareholders sought to prevent this happening on the ground that such a payment went beyond the articles of association of the company, and such payment to ex-employees was not reasonably incidental to the carrying on of the business of the company.  In Menier v Hopper's Telegraph Works (1894) 9 Ch App 350, Menier was a minority  shareholder of the European Telegraphy Company brought proceeding to recover the concession against Hopper's which was a majority shareholder of the European Telegraphy Company . The court concluded that a minority shareholder of a company was eligible to bring the application.

 

In this case, although the plaintiff only owns 5% shares, he had a sufficient title to bring the application to the court, and the plaintiff was a registered member of the company of MFW and he was qualified under section 236(1)(a)(i). Therefore, the plaintiff is eligible to bring the proceeding against the Flash and Associates Solicitors for their negligence under section 236 of the Corporation Act.

 

.......... (omitted)

 

Second, the applicant is acting in good faith. In Chahwan v Euphoric Pty Ltd t/as Clay & Michel (2008) 65 ACSR 661, Tobias JA summarised the good faith test from Swansson:[1]

 … as a current or former shareholder or director of the company, [the applicant] would suffer a real and substantive injury if a derivative action were not permitted provided that that injury was dependant upon or connected with the applicant’s status as such shareholder or director.

 

In Swansson, Mr. Swansson was a director of RA Pratt and wanted to sue her ex-husband, Mr. Highland, who was also a director of RA Pratt for the breach of his duties to RA Pratt. The court ruled that her acting was not in good faith as she was seeking a double recovery through these proceedings. Here, it may be arguable that the plaintiff was disappointed because the company does not pay a dividend to its shareholders not acting in  good faith. However, this was not the main reason for the plaintiff to bring the proceeding. Max confided in the other directors after the meeting and said it would break Matilda's heart to take legal action against her brother's firm. One of directors of MFW explained to the plaintiff what had happened and why the company was not taking legal action at a BBQ. This would not be difficult for the plaintiff, as a member of MFW, to establish, given he is concerned with a desire to recover all of the loss caused by the poor legal advice from a Flashy and Associates Solicitors.

 

........ (omitted)

 

Third, it is in the best interest of the company that the applicant be granted leave. The directors of the MFW assumed that the reason to not pursue legal action against Flashy and Associates Solicitors was that the litigation might cost more than any amount recoverable against the Flashy and Associates Solicitors. However, the board was not aware of the firm's arrangements with respect to the professional indemnity insurance by the time they had a board meeting. Therefore, the decision made by the board was not in the best interest of the company.

 


Read full script here:


[1] Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313.

 

[Law Notes] Contract Law: Moot Submission Practice

[Law Notes] Contract Law: Moot Submission Practice

 

SUMMARY OF FACT

  • The plaintiff took out a loan of $20,000 to borrow the projector($5000) and the studio($15,000) from the defendant for the performance.
  • The defendant did not install the cooling device.
  • During the performance with Henderson, the projector burst into flames, ruining the illusion of Jacob's performance.
  • The manager of "The Bug" cancelled Jacob's remaining six weeks of shows.

 

PLAINTIFF'S SUBMISSION

  1. The damages were occurred by Bay Engineer that they did not install the cooling devices which made the projector overheated and ruined the plaintiff's performance and lost the job.

 


 

1.DAMAGES

'Where a party sustains loss by reason of breach of contract, he or she is so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed': Robinson v Harman[1]. In this case, the plaintiff lost six weeks income due to failing of performance by using faulty projector of  Bay Engineering can claim damage.

 

1.1 CAUSATION

1.1.1 'To establish a casual connection between a breach of contract and the damage which the plaintiff has suffered, he needs only to show that the breach was a cause of the loss. This is to be decided by the application of commonsense principles. In general, the application of the "but for" test will be sufficient to prove the necessary casual connection': Alexander v Cambridge Credit Corp Ltd.[2]

1.1.2  Installing a cooling device in the projector is necessary to prevent the project to be overheating during the performance. If it is properly installed, the projector never be overheated and he could keep his contract with "The Bug". Glass JA in Alexander held that  there is causation found here by applying "but for test". But for the breach the company, it would have closed down and no need to suffer from a great loss.

1.1.3 After applying but for test, it is certain that if the projector was not overheated, the show would be successfully performed and he did not lose his job. The chain of causation is successfully established in this case.

 

1.2 REMOTENESS

1.2.1 By the defendant wrongfully terminate the contract without taking reasonable steps, the plaintiff is now suffering from finance difficulties. As the defendant cancelled the remaining six weeks performance, the plaintiff losses $1000 weekly for six weeks.

1.2.2 'Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally': Hadley v Baxendale.[3].

1.2.3 Test of remoteness is considered in Hadley, first the damages are reasonably contemplated which must be "a serious possibility", "real danger" or "not unlikely to occur": Koufos v Czarnikow Ltd.[4]

1.2.4 In Koufos[5], based on the charter Party of 15th October, 1960 the Koufos chartered 3,000 tons of sugar and to carry it to Basrah. The vessel left Constanza on 1st November and arrived at Basrah on 2nd December which cause a delay of nine days and also had an effect on sugar price on the market. Koufos claimed the difference in the loss of profit and held that it is not too remote. In this respect, loss of income is real danger for the plaintiff and claiming $6000 for his remaining six weeks of shows is reasonable and within the scope of remoteness.

 

1.3 MITIGATION

1.3.1 Mitigation is required for the plaintiff has to take reasonable steps to minimise the loss. However, in this case, the plaintiff could not be able to repairs the projector which requires at least one week to be fixed it means that he had to cancel some of his performance: British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd.[6]

1.3.2 When he found the some minor errors on the projector, he did not even realised that was going to cause the serious event in the past future. He is a artist who is not familiar with technology. If he should have known the fact, he would not use the faulty projector and bring it back to Bay Engineering as soon as possible. This is different from Burns case that Burns had knowledge of the condition of the engine.

1.3.3 In Barns[7], the plaintiff bought a prime mover which was reconditioned by the defendant in 1977. One year later in July 1978, the plaintiff found that the prime mover was defective yet he could not fix it since his lack of finance. There was issue of failing to take an action of mitigation due to no money.

1.3.4  Viscount Haldane LC  in British Westinghouse held that " a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach and debar him from claiming any part of the damage which is due to his neglect to take such steps".[8] Gibbs C.J and Brennan J.A in Burns  held that 'a plaintiff who is under a duty to mitigate his loss not obliged, to reduce the plaintiff's financial stringency arose as a matter of common sense'.[9]

1.3.4 By considering all the fact that he took out a loan $20,000 for his performance and had to pay off the loan. This is why he was reluctant to cancel the performance just for to fix the overheated projector that he was not even realised that caused such a severe event to him.

 

If it pleases the court, those are the submissions for the plaintiff.

 

DATED this 26th day of August 2015.

 


[1]  (1848) 1 Ex Rep 850.

[2]  (1987) 9 NSWLR 310, (McHugh)  J commented that the 'but for' test is a guide and not definitive or ultimate.

[3]  (1854) 156 ER 145.

[4]  [1969] 1 AC 350.

[5]  Koufos v Czarnikow Ltd [1969] 1 AC 350.

[6]  [1912] AC 689, (Viscount Haldane) L.C commented that a plaintiff the duty of taking all reasonable steps to mitigate the loss consequence on the breach.

[7]  Ibid 653.

[8]  British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rlys Co of London Ltd [1912] AC 689 [2].

[9]  Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653.

 


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[Law Notes] Land Law After Torrens: Property Law (토렌스 시스템 이후)

[Law Notes] Land Law After Torrens

 

Introduction

The Torrens system is the prevailing (우세한,탁월한, 지배적인)  system of freehold title (자유 보유권) in Australia. In this part, we will go through:

  • Operation of the Torrens system
  • The bureaucratisation of ownership
  • Torrens as a tool of governance (감시 도구)

 

The central concepts of the Torrens system is registration and indefeasibility. Through the administration of a central register the Torrens system has removed the need of find a good root of title, doing away with most of the problems associated with Old System Title. This is because registration is said to confer "indefeasible (파기할 없는) title (권리)".

Michel Foucault, the French historian, indicated that how and why the Torrens system can be thought of as a system of governmentality (정부체제) through surveillance, management  and the triumph (대성공,승리) of efficiency.

 


 

Operation of the Torrens System

 

In response to the inherent defects in a documentary title, a third system of recording rights to and over land was developed. This system of registration of title, known as "Torrens System". It is a system of registration of land title, not instrument. Viz, the Torrens system is a system of title to land evidenced by registration. In Queensland, the system operates under the Land Title Act 1994 ('LTA'). There are 3 principles:

 

  1. It should not be necessary for a person dealing with a registered owner to investigate the history of the registered owner's title.

 

  1. While not all interests in land are capable of registration, those interests that can be registered and are registered, should give, in the absence of fraud or error, and indefeasible title.

 

  1. If a person is deprived of an interest in land (토지에 대한 소유권), as a result of the operation of the Torrens system, monetary compensation for the loss of interest should be paid.

 

 


 

Registration

Under the Torrens system, all changes to the particulars of a piece of land are recorded in a central register, the freehold land register. The purpose of the register is that purchasers can rely on what is recorded in the register, and no longer have to find a good root of title. Equitable interest are not registrable on the title but do exist as part of the system and may be protect by caveat. If an interest is not recorded in the freehold land register then the purchaser is not bound by that interest unless a statutory exception applies. The act of recording the details of an interest in the register is called as "registration(등기)".

 

Once an interest is registered, the person who holds that interest is called as "Registered Proprietor (등기부에 등록된 소유권자) ('RP')".

  • If the interest which has been register is an estate in fee simple (단순 부동산권 / 무조건 세습상속 부동산권 ), then the holder of that estate is the registered proprietor of an estate in fee simple.

 

  • If the interest that has been registered is a mortgage (저당권), then the mortgagor(저당권 설정자) is the registered proprietor of a mortgage.

 

  • Freehold: 한국의 부동산 소유권 개념.
  • Freehold estate: 자유보유 부동산권
  • Leasehold: 정해진 기간 동안 부동산의 사용권을 얻는 것. 해당 기간 동안 부동산을 마음대로 사용 가능. 임차인은 freehold 소유자에게 annual fee를 납입 (경우에 따라 다를 수 있음).
  • Certificate of Title : 부동산 등기부 등본

 


 

Indefeasibility

Indefeasibility is the core component of the registration system. A person has "indefeasibility title (무효화 없는 권리 / 파기 불가능한 권리)" by registering interest in land. A person's interest is subject only to those interests that were noted in the register prior to registration, except where a person acquire through fraud, or where a limited number of statutory exceptions apply.

 

Indefeasibility is defined in the Land Title Act by a collective reading of sections 37, 38 and 184.

s37 Creation of indefeasible title

An indefeasible title for a lot is created on the recording of the particulars of the lot in the freehold land register (자유토지등록부)

S38 Meaning of "indefeasible title"

The indefeasible title for a lot is the current particulars in the freehold land register about the lot.

 

S184 Quality of registered interests

 

(1) A registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests.

(2) In particular, the registered proprietor

(a) is not affected by actual or constructive notice (의제적 악의?) of an unregistered interest affecting the lot; and

(b)is liable to a proceeding for possession of the lot or an interest in the lot only if the proceeding is brought by the registered proprietor of an interest affecting the lot.

(3) However, subsections (1) and (2) do not apply -

(a) to an interest mentioned in section 185; or

(b) if there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest.

 

 

Sample example:

Fact:

Emily owns a house in Sunnybank. Emily agrees to rent a spare room to James, a friend of a friend , so he can live closer to university while he completes a law degree. James has rented the room from Emily for the past 3 years. A formal lease was never created and nothing was registered. Emily wishes to sell her house to move closer to her family. Ben, a real estate agent, inspects Emily's house and notice James's belongs in the spare room. Emily sells the house to Ben and Ben registers his interest. James wishes to remain a tenant at the residence as he only has one year remaining in his degree. Ben refuses and informs James that he must move out promptly. Can James enforce his arrangement with Emily against Ben?

 

Answer:

Ben has registered his interest, he has indefeasible title under section 37 and 38 of the Land Title Act. Therefore, he is protected against all other unregistered interest, in this case, Jame's lease: s184(1). Hence, even though he knew about the lease he is not bound by it: s184(2)(a) LTA. There are no exceptions to indefeasibility so that none apply here.

Above example shows that under Torrens system, purchasers no longer have to make their own enquires into the true practical uses of land.

 

Torrens system will almost always side with (~편을 들다) what is registered. Positive features of a bureaucratic system are:

  • the high costs and practical difficulties associated with finding a good root of title (권리의 근원) are now virtually eliminated - 권리의 근원을 찾는데 쓸데없는 비용 이외 기타 번거로움을 없앤다.
  • almost complete reliance can be made upon the register
  • compensation where a party loses their interest in land through no fault of their own - 잃어버린 토지에 대한 소유권의 보상이 가능하다

 

In contrast, the Torrens system can lead to parties with unregistered interest in land being dispossessed(재산을 빼앗긴) of their interest through no fault their own. However, monetary compensation (금전 배상) may not be adequately account for the loss of a family home: Breskvar v Wall (1971) 126 CLR 376.

 

Breskvar v Wall (1971) 126 CLR 376

Fact:

Mr and Mrs Breskvar, appellants, were the registered proprietors of residential property in Acacia Ridge in Brisbane. The appellants borrowed money from a rogue (악당,불한당) named Petrie.  To secure the loan, the appellants provided Petrie with the certificate of title (권리증서) and executed memorandum of transfer (권리이양각서) with the name of the transferee left blank. This omission contravened the Stamp Act(인지법)1894, s53(5) rendering (만들다) the executed transfer "absolutely void and inoperative (무효인)". Petrie inserted the name of his grandson, Wall, as transferee then he registered the transfer on behalf of Wall at the Titles Office. Petrie arranged for the land to be sold to Alban Pty Ltd, which acted in good faith and without notice of the fraud. Prior to the registration of the transfer from Wall to Alban Pty Ltd, the Breskvards discovered the fraud and lodged a caveat against further dealings with the land.

 

Held:

The High Court considered the effect of the registration of the void transfer from the appellants to Wall and held conclusively in favour of the concept of immediate indefeasibility (무효화 할 수 없는). 이 말인 즉, (공정한 법의 절차를 거친) 제 3자가 사기로 인해 토지를 구매 했을 경우, 그 토지는 3자가 가지게 되며, 사기를 당한 원 토지 소유자는 정부에 손해배상 청구를 할 수 있다.

 

 

Sample example

Fact:

Jackson owns a house in New York and has lived there for 30 years. Without his knowledge Jackson's lawyer Karen forges her signature on a memorandum of transfer(권리이양각서). Karen registers her interest and then sell the property to Nick who has no knowledge of the fraud. Nick registers his interest. Questions are:

  • What types of interest do the parties have?
  • Who would get possession of the property?

 

Answer:

  • What types of interest do the parties have?

 

Jackson has an equitable interest (a right to bring a case before court). He was the original registered proprietor but he was defrauded(뗴이다,사취 당하다) out of his interest (소유권을 빼앗기다). Jackson has no interest in the property.

Karen also has no interest in the property since she sold her interest to Nick.

Nick has the current registered interest.

 

 

  • Who would get possession of the property?

Nick has the current registered interest. This means Nick is the registered proprietor. Viz, he has indefeasible title = he takes his title free from all unregistered interest. Nick is a bona fide purchaser without notice of the fraud, he has indefeasible title. The Torrens system protects his interest over the original onwer.

Jackson would be dispossessed through he could claim compensation from the State for his loss.

 


 

The Bureaucratisation of Ownership 관료제 소유권

 

Registration (등기) is the paramount (다른 무엇보다 중요한) way of evidencing land ownership (토지 소유권).  Where title once depend on social recognition through customary practices, under a system of registration(등기제도) it now depends on a bureaucratic from (관료적 형식의) of recognition (허락/인정/승인). Bureaucracies (관료주의 /관료제) provide an efficient way of managing resources due to economies of scale (경제 규모), uniform procedures (균일한 절차), and because of their capacity to strive for impartiality (공정함) and accountability (책임, 의무) to government. Bureaucracy in the context of land administration(토지관리/토지행정) is a systematic means (체계적인 수단) of matching specific tracts of land (땅/지면) with those people who have right to that land. This is done through registration under the Torrens system.

Prior to the English Enclosure Acts, most land in Engliand was "common" land but it was shifted from feudalism to capitalism which required to record and identify the rights of individuals (개인의 권리) and corporate interests (?) and match this with land use (토지 이용/토지사용). This is the privatisation of land (토지의 민영화).

Alain Pottage stated that on this shift in land use and the way ownership is evidenced noting the difference between rights afforded by physical control of land and ownership through the recognition of abstract forms.

 

  • Title is a means of distinguishing between ownership and possession.
  • Possession is a factual state of affairs and ownership is a normative (규범적인) An owner enjoys abstract legal powers over land while a person in possession of land has factual and physical control of it.
  • Recognition is a means of establishing ownership rights (소유권) through an institutional (기관의) or bureaucratic framework (체제/구조) seeking to do away with the significance of possession as a marker of ownership.

 

Providing a tax file number, a passport, bank account, a Medicare card, a diver license or 18 plus card are ways of establishing identity under bureaucratisation (관료화/ 관료체제).

 

  • Face to face recognition (registration scheme: not accurate) -----------> evidencing identity (bureaucratic system of registration).

 

The Introduction of registration(등기) was disruptive (지장을 주는) of existing social relationship that people had in relation to land.  For example, in Australia, Indigenous people were similarly displaced from (쫓겨나다) their ancestral (조상의, 선조의) land and today find that  under Native Title (원주민 토지 소유 권리). They still struggle to have their claim to land recognised as such by a system of registration (등기 제도/체제) of title (권리) .

 

 


Torrens as a Tool of Governance

 

The Torrens system was introduced to circumvent (어려움이나 법을 피하다) problems with the nemo dat rule (no one can pass a better title than he or she possesses). Also, not only the Torrens system symbolised a shift in how people were to evidence land ownership, but also a shift in how people were to be governed.

 

Foucault states that:

"the transition which takes place in the eighteenth century from an art of government to a political science, from a regime dominated by structures of sovereignty to one ruled by techniques of government turns on the theme of population and hence also on the birth of political economy."

 

Foucault explain in his essay, Governmentality, the 18th century, the state became concerned with the management of individuals, good s and wealth within the family. This required the establishment of what Foucault describes as "apparatuses of security (보안장치)": ' a form of surveillance (감시 형태) and control as attentive (주의를 기울이는) of the head of a family over his household and his goods'. Foucault explains that populations became the focus on governments, resulting in a shift from sovereign as "protector and enforcer" to sovereign as "manager and administrator".

 

According to Foucault, bureaucratic systems like the Torrens system that the liberal state (자유주의 국가) developed alongside (나란히) the art of political economy (정치 경제학의 기술) and its obsession (집착) with methods for the management of populations. Hence, the Torrens system can be thought of not just as a practical solution (실질적인 해결) to problems of evidence but also as fundamental to the evolution (진화/발전) of the liberal state and society.

 

  • art of government : 정치 기술

 

Prior to the enactment of Torrens legislation in Australia, Britain introduced a system of land registration in the Indian province of the Punjab in 1853. The desire to record all land holdings and the boundaries between them was central to the question of administering a colonial society (식민지 사회). Then, Why the Torrens Act was first enacted in Australia?

  • management
  • control
  • surveillance

 

The use of bureaucratic methods of control is a concept central to Foucault's ideas in ' The eye of power'.

 

  • Panopticon ---> 원형 교도소: 한 곳에서 내부를 모두 볼 수 있게 만듬.

 

If the Torren system is as panoptic mechanism, it is a system of "centralised surveillance (중앙집권화된 감시체제)". It means that a system with 'a central observation-point (관측 점) that would serve as the seat of the exercise of power as well as the place for recording observations and acquiring knowledge'.

 

On strong reason for its enactment was to control Australia's colonial population and economy. The system focuses on surveillance with every transaction over land being recorded by a state body. It is now impossible in Australia to change any legal use of land without a state government knowing about it and recording it. If a change is not registered then the unregistered interest is open to challenge by a later registered interest.



The contents of this summary note is extracted from the textbook, 'Real Property Law in Queensland', written by Anne Wallace, Michael Weir and Les Mc Crimmon.

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[Law Notes] Land Law Before Torrens: Property Law (토렌스 시스템 이전)

Land Law Before Torrens

 

Introduction

Robert Richard Torrens developed the system of land title registration and introduced in to South Australia in 1858. Queensland followed in 1861, introduced the Land Title Act 1994. The Australian's Torrens System have been introduced in many overseas jurisdictions including New Zealand, British Colombia, Singapore, Malaysia, Philippines, other provinces in Canada, Caribbean, some states of United States and some countries in Africa. Most common law jurisdictions have adopted a bureaucratic system of land registration (토지 등기) which is called Torrens System. The Torrens System of title relies on a centralised bureaucratic (관료적인) land register (토지 대장/ 토지 등기부) which is contrast with common law system which relied on oral evidence and later certificates of title to determine title.


 

Traditional Forms of Land Conveyancing 토지 양도법

 

There have been 3 system of title prior to the introduction of the Torrens system:

  • Public conveyances: Feoffment (영지공시양도) with Livery of Seisen (부동산 양도식)

 

In medieval England freehold interests in land were, prior to the enactment of the Statue of Uses 1535, conveyed pursuant to a public ceremony known as "feoffment with livery of seisin".

 

During the ceremony, the feoffor indicated his or her intention to convey the land to the feoffee and indicated the size of the interest being conveyed. The feoffor formally delivered possession of the land to the feofee, often evidenced by symbolic gestures such as the passing of a rod, twig or clod of earth.

The passing of the Statute of Uses 1535 marked the beginning of the decline of public  conveyancing and the emergence of private conveyancing.

 

  • Private conveyancing (2 types of legal transaction: lease and release system / Bargain and Sale)

 

The public nature of a feoffment with livery of seisin, coupled with the inconvenience attendant in having to enter onto the land to perfect the conveyance. It prompted medieval lawyers to devise more convenient, secret method of effecting the transfer of freehold interest in land. One of the earliest form of alternative convincing method was the "lease and release at common law".


  • Lease and release system

At common law, it was possible for a lease of real property (부동산) to be granted to the lessee (임차인), followed by a release (해제) of the lessor's reversion (반환권). The release of the lessor's reversion was effected by a document called a " deed of release (권리포기증서)". Lease were not considered real property, hence they could be granted without the pubic ceremony of feoffment.

 


  • Bargain and Sale 토지 매매 계약 (및 대금 지불)

Bargain and sale system was a transaction for the sale of land but without the need for the buyer to actually physically move onto the land a part of a public ceremony. Macdonald et al explain the procedure of "bargain and sale" (p272):

 

"Upon payment of the purchase price, the purchasers acquired an equitable estate in the land, leaving the vendor with a bare legal estate. Equity regarded the vendor as seised (압류,장약) of the legal estate (법적 부동산/사유지) " to the use of " the purchaser. The Statute of Uses 1535 executed this use and secretly and without entry onto the land, vested the legal estate in the cestui que use- the purchaser."

In the early 17th century, the bargain and sale method (under the Statute of Uses 1535) and the lease and release method (at common law) was combined: Macdonald et al explain the method (p272):

 

" The vendor "bargained and sold" the land to the purchaser for a leasehold term (임차권이 있는 기간 동안). A leasehold was not an estate of "freehold (자유보유권) or inheritance (유산 상속)". Hence, the bargain and sale did not need to the enrolled pursuant to the Statute of Enrolments 1535. Equity regarded the vendor as seized of the land "to the use of" the purchaser for the leasehold term. The provisions of the Statute of Uses 1535 executed this use and the legal estate in the leasehold term was  vested in the purchaser without any need for actual entry onto the land.  The vendor then completed the transaction by "releasing(해제)" her his freehold reversion(반환권) to the purchaser. Through, the use of the method of private conveyance, the requirements of publicity and entry onto the land to perfect the conveyance were abrogated (폐지되다, 철폐되다)."

In the years following the Statue of Uses 1535,  people developed the documentary title to land.


  • Old System Title

Transactions for the transfer or creation of interest in land had to be in writing according to statute. Each transaction would be recorded on a title deed (권리증서) and the title deed would be used to update a central register.

However, this system causes errors, still required cumbersome (다루기 힘든) searches to determine a "good root of title" in spite of the central register.  The documentary titles were subject to other defect. Here is 5 problems: (Documentary title 결점 5가지)

  1. The documentary title may have been valid, but incomplete. If a grant of a legal easement (지역권: 남의 토지를 특정 용도로 사용 할 수 있는 권리) was omitted from the chain of title, it would nonetheless (그렇더라도) have bound the purchaser.
  1. The title documents were held by private individuals, hence the potential for fraud was high.
  1. If one of the documents evidencing title was lost or destroyed, proof of title depended on whatever secondary evidence was available.
  1. The necessity of entry onto the land was abrogated, hence physical examination of the property was not strictly necessary. This often resulted in uncertainty as to the boundaries of the land purchased.
  1. Searching a chain of title (권리의 사슬) required a high degree of skill. This resulted in an expensive and time-consuming conveyancing procedure.

The need for a good root title was due to the maxim nemo dat quod non habet ( means no one can pass a better title than he or she possesses)

 

English courts accepted a reduced standard based on the accepted practice of conveyances which required a vendor to trace an unbroken chain of title back 60 years from the date of the current contract. Under this approach, the documentary starting point was acceptable if it met the 2 standards:

  1. It was an instrument that dealt with land and was of such a nature as to give rise to a reasonable supposition that the person taking title under it would have investigated the title and been satisfied with it : Re Marsh and Earl Granville (1883) 24 Ch D 11.
  1. Instruments capable of this standard included : a conveyance for value, a first mortgage, or a power of sale under a mortgage. While inadequate document might have been: a will, a deed appointing a trustee.

Old system title and exists in NSW today, the relevant period is 30 years calculated to reach back from the date of the contract for sale. In Queensland, the rule was 60 years until modified by statute to become 30 years ( PLA s237(1) and (9)).

Once the good root of title was established, the vendor had to be able to produce documents showing an unbroken chain of title to the satisfaction of the purchaser.

 


 

South Australia and Torrens

Pike identifies in this essay, several significant factors of Torrens System. He particularly pay attention to the struggles between different interest such as lawyers v land brokers, local interests v absentee owners (부재 지주), bankers v small landowners, politicians v administrator & lawyers.

The legal professional thought that the new system, Torrens system is a threat so even judges opposed it. Justice Boothby was removed from the bench in 1867 due to his objection. In Victoria and Tasmania old system or unregistered land still exist. In Queensland, all land is now Torrens land and Torrens has applied since 1861. The idea behind Torrens is that all transactions affecting a piece of land are centrally recorded in one place, the freehold land register (자유 토지권 등기소).

 


The contents of this summary note is extracted and summarised based on the textbook, 'Real Property Law in Queensland', written by Anne Wallace, Michael Weir and Les Mc Crimmon.

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법학대학 (영어권) 관련 과목 과외 해드립니다. 법대 과목 이 외  다른 과목 과제 (부동산, 비지니스, 심리학, IT- 데이터베이스 과목 과외)도 도움을 드리고 있으니, 컨택 폼을 이용해서 메세지를 남겨주시면 24시간 이내에 답변드립니다. 거의 법대 과목 에세이는 6점 이상 7점을 받았습니다 (대부분 에세이들을 2점 차이로 만점을 놓쳤습니다. 만점은 7점입니다.). 또한, 영어 통역도 해드리니, 통역이 필요하신 분들도 이 메일 아이콘을 클릭 한 후 메세지를 남겨주시면 24시간 이내에 답변드립니다.

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[Law Notes] Property Law: Joint Tenancy (공동 소유권)

 

  • Joint tenancies have two essential characteristics:
    • must presence the “Four Unities”
    • the Right of Survivorship.

 

  1. The four unity
  • Without " the four unities", a joint tenancy cannot be created. All four unities must be required to create a joint tenancy. If the four unities is not present, then a tenancy in common may have been created instead. If unity of possession is absent then there can be no co-ownership at all since it is fundamental to all forms of co-ownership. The presence of all four unities mean that the nature of the co-ownership is a joint tenancy.

 

  1. Unity of Title : 동일한 Deed (권리증서) 에 기록 되어야 한다. (Title 은 "명의" / "권리" / "소유권" / "등기" 이라고 번역이 되어있음.)

 

  • The title of joint tenants must have a single origin. This requires that each joint tenant must claim his or her title to land under the same instrument or act.
  • A (single origin) (fee simple interest)--> B and C (이 둘은joint tenant)
  •                                                                        B ---> D (conveyance:양도)
  •                                                                        C and D 는 tenancy in common

 

* Fee simple: 부동산 소유권

 

  1. Unity of Time: 동시에 등기가 되어야 한다.
  • Each joint tenant must take their interest simultaneously(동시에) and from the same source.
  • There is one exception to this rule concerns gifts in wills.
  • This requirement is generally fulfilled if unity of title is present.

 

  1. Unity of Possession: 동일한 사용권이 있어야 한다.

 

  • If unity of possession is absent, there is no co ownership but separate ownership: Unity of possession이 성립되지 않으면, 공동 소유권도 성립 될 수가 없다. 별도의 소유권을 가지게 된다.

 

  • Each co-owner is entitled to as much possession of the land as the other co-owners. They are also entitled to possession at the same time: viz concurrent possession: 각각의 공유 소유권자는 원하는 만큼(면적)의 부동산을 사용할 수 있고, 동시에도 사용 가능하다.
  • However, a co-owner cannot point to a particular part of the land as his or hers because that would constitute separate ownership (소유권): 하지만 특정한 대지(면적)만을 사용할 수 없다. 그렇게 되면 별도의 소유권을 가지게 되는 것이다.
  • As each co-owner is entitled to possession of the whole, one co-owner cannot exclude the other(s): 한 명의 공유 소유권자가 대지 전체를 소유할 수 있지만 상대방을 배척/배제 할 수 없다.

 

  • If one does occupy the whole of the land, the other who has been excluded cannot normally bring an action against the usurper (강탈자,횡령자). Although in that situation there may be other possible remedies: 상대방이 부동산을 점유하고 사용,혹은 다른 공유 소유자가 사용 못하게 하더라도, 상대방 (뺏긴 사람) 은 거기에 대해서 아무런 행동을 취할 수가 없다.

 

  1. Unity of Interest: 동일한 소유권이 있어야 한다.

* interest를 소유권으로 해석

 

  • Each joint tenant must have the same interest as the others. The respective (각각의) joint tenant's interest must be the same in nature, extent and duration. Co-owners cannot be joint if they have unequal shares: 똑같이 반반이 아니면 joint tenant가 될 수 없다. 무조건 50:50. 왜 반반이냐고? Each joint tenant has a title to the whole the property, they cannot have an equal shares:
  • 예: a grant to Jack for 50 years and Kate for life would not give unity of interest. Because the estates in this situation would be different in nature and different in duration.

 

 

Mikeover Ltd v Brady [1989] 3 All ER 618

 

Fact:

·         Mikeover Ltd advertised for two people to share a "two-room flat". Actually it was one bedroom. Mr Brady and Ms Gulie entered into a contract.

·         Each agreement required 86.66 pounds per month under the condition that is "the rifht to use in common with others who have been granted the like right " and "not to impede the use of the rooms".

·         Gulie moved out but Brady continued to paying his rent. He fell behind in his rent

·         Brady appealed claiming he had a joint tenancy by virtue of the identical contracts so that protection under the Rent Act (allow security of tenure -보유권) applied.

Held:

The court concluded that there was no complete unity of interest that is necessary to establish a joint tenancy. If two person shares 173.32 pounds which is the whole of the rent, then it is a joint tenant. However, each person had an obligation to pay a share of the rent 86.66 which cannot constitute a joint tenant.

 

 

  1. Right of Survivorship

When a tenant passes away, his or her interest in the property is extinguished                       (소멸되다) and the surviving joint tenants hold the property. Then the property will pass into the sole ownership of the last surviving joint tenant. This rule operates  automatically on the death of a joint tenant. This doctrine of survivorship does not           apply to tenants in common. Once the joint tenancy is terminated the right of                   survivorship no longer operates. The joint tenancy was favoured by the common law.

 


This summary note is written during the course of the property 2 and the content is extracted from the Real Property Law in Queensland (4th ed) written by Anne Wallace  and the Australian Property Law Case written by Samatha Hepbrn.

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법학대학 (영어권) 관련 과목 과외 해드립니다. 법대 과목 이 외  다른 과목 과제 (부동산, 비지니스, 심리학, IT- 데이터베이스 과목 과외)도 도움을 드리고 있으니, 컨택 폼을 이용해서 메세지를 남겨주시면 24시간 이내에 답변드립니다. 거의 법대 과목 에세이는 6점 이상 7점을 받았습니다 (대부분 에세이들을 2점 차이로 만점을 놓쳤습니다. 만점은 7점입니다.). 또한, 영어 통역도 해드리니, 통역이 필요하신 분들도 이 메일 아이콘을 클릭 한 후 메세지를 남겨주시면 24시간 이내에 답변드립니다.

에세이 확인은 여기서 해주세요.  http://www.jinslegalstory.com/law-essay/

[Law Notes] Property Law: Co-Ownership Summary

Table of Contents

 

  1. Type of Co-Ownership (공유지분)
  1. Introduction
  2. Tenancy in Common (공유 재사권/공유등기)
  3. Joint Tenancy (공동 소유권)
    1. The four unity
      1. Unity of Title (동일한 Deed (권리증서) 에 기록 되어야 한다)
      2. Unity of Time (동시에 등기가 되어야 한다)
      3. Unity of Possession (동일한 사용권이 있어야 한다)
      4. Unity of Interest (동일한 소유권이 있어야 한다)
    2. Right of Survivorship (생존자권)

 

  1. Creation of Co-Ownership
  1. In GeneralLaw
  2. Statute.
    1. Section 35 of the Property Law Act 1974
  3. Equity
    1. Partnership

 

  1. Right between Co-Owners
  1. Rights of Disposition (권리처분)
  2. Control of Certificate of Title (권리증서)
  3. Rights of Occupation (임대)
  4. Right to Receive Income Derived From the Property
  5. Compensation for improvements3
  6. Quantum of Recovery
  7. Occupation rent (임대료/임차료/지대료)

where a co-owner is in occupation of the property, that co-owner will not be liable to occupation rents unless:

  • he or she has wrongfully excluded the remaining co-owner(s); or
  • there is an agreement to pay occupation rents; or
  • the occupying co-owner seeks contribution for improvements effected over the property: Luke v Luke (1936) 36 SR (NSW) 310

 

  1. Other out goings
    1. Repairs and maintenance
    2. Insurance premiums (보험료), pest control (병충해 방지)
  • Joint debts (연대채무)

 

  1. Termination of Co-Ownership
  1. Severance (파기)
  2. Alienation (양도)
  3. Mutual agreement (상호 동의)
  4. Unilateral Severance (일방적인 파기)
  5. Homicide (살인)

 

  1. Partition
  1. Compulsory Partition
  2. Voluntary Partition

 


 

Table of Cases:

 

  1. Type of Co Ownership (공유지분)

 

  1. Introduction
  2. Tenancy in Common (공유 재산권/공유등기)
  3. Joint Tenancy (공동 소유권)
    1. The four unity
      1. Unity of Title (동일한 Deed (권리증서) 에 기록 되어야 한다)
      2. Unity of Time (동시에 등기가 되어야 한다)
      3. Unity of Possession (동일한 사용권이 있어야 한다)
      4. Unity of Interest (동일한 소유권이 있어야 한다)
  • Mikeover Ltd v Brady [1989] 3 All ER 618

 

  1. Right of Survivorship
  1. Creation of Co-Ownership
  1. In General
  2. Common Law
  • Robertson v Fraser (1871) 6 Ch App 696
  • Public Trustee v Pfeiffle [1991] 1 VR 19

 

  1. Statute
    1. Section 35 of the Property Law Act 1974
    2. Section 36 of the Property Law Act 1974
  • Aoun Investments Pty Ltd v Chief Commissioner of State Revenue [2006] NSWSC 1394

 

  1. Equity
  • Calverley v Green (1984) 155 CLR 242
  1. Partnership

 

  1. Right between Co-Owners
    1. Rights of Disposition (권리처분)
      • Frieze v Unger [1960] VR 230
      • Catanzariti and Whitehouse (1981) 55 FLR 426
      • Hedley v Roberts [1977] VR 282

 

  1. Control of Certificate of Title (권리증서)
  2. Rights of Occupation (임대)
  3. Right to Receive Income Derived From the Property
  4. Compensation for improvements
  5. Quantum of Recovery
  6. Occupation rent
  7. Other out goings
    1. Repairs and maintenance
    2. Insurance premiums (보험료), pest control (병충해 방지)
  • Joint debts (연대채무)

 

  1. Termination of Co-Ownership

 

  1. Severance (파기)
  2. Alienation (양도)
  • Wright v Gibbons (1949) 78 CLR 313

 

  1. Mutual agreement (상호 동의)
  • Hulme v Schaecken [1999] NSWSC 1291

 

  1. Unilateral Severance (일방적인 파기)
  • Lyons v Lyons [1967] VR 169
  • Corin v Patton (1990) 169 CLR 540
  • Partriche v Powlet (1740) 26 ER 430

 

  1. Homicide (살인)
  • Re Stone [1989] 1 Qd R 351

 

  1. Partition
  1. Compulsory Partition
  2. Voluntary Partition

 


 

  1. Type of Co Ownership (공유지분)

 

  1. Introduction

 

There are 4 types of co-ownership:

  • tenancy in common (공유 재산권/ 공유등기)
  • joint tenancy (공동 소유권)
  • coparcenary [koupɑ́:rsənèri] (공동상속) - unusual form of tenancy in common having some or the characteristics of joint tenancy. Section 33 of the Property Law Act 1874 abolished coparcenary in Queensland.
  • tenancy by entireties - disappeared in Queensland as a result of the enactment of the Married Women's Property Act 1890.

 

 

Only 2 types of co-ownership survives:

  • tenancy in common
  • joint tenancy

 

 

Section 33(1) of the Property Law Act 1974:

Any property and any interest, whether legal or equitable, in any property may be held by two or more persons-

(a) as joint tenants; or

(b) as tenants in common

 

A corporation could not hold property as a joint tenant at  common law. Section 34 of the Property Law Act 1974 which enables a body corporate to acquire and hold any property in joint tenancy such like an individual.

 

 

  1. Tenancy in Common (공유 재산권) :

* Tenancy : Tenancy  (주택토지 등의) 차용[임차/소작] (임대) (기간)

 

  • If two or more people are entitled to possession of the whole of the land but are not joint tenants, they are tenants in common. Each tenant holds a distinct (분명하지만) but undivided share in the whole estate. Viz, a tenant in common cannot claim a particular part of the land : 2 혹은 3 이상이 함께 대지를 소유하는 형태로공유 소유권자들은 특정한 대지를 소유하지 못한다.  Joint tenants와는 개념이 다르다.

 

 

  • If any of the four unities are missing (unity of title, interest, possession and time) – only unity of possession is required - then a tenancy in common may have been created. Joint tenancy 의 경우는 4가지의 unity가 다 존재해야 하지만, tenancy in common의 경우는 unity of possession만 성립되어도 된다.
  • There is no right of survivorship attached to tenancy in common. When a tenant in common dies, their share devolves by will. Tenancy in common은 생존자 권이 없기 때문에, 다른 공유 소유자가 사망할 시, 동등하게 배분한다. Joint tenancy의 경우는 배우자가 사망 시 자동적으로 사망한 사람의 지분은 생존자에게 넘어간다.
  • If a tenant die without a valid will then abide by the rules of intestacy. 만약, 공유 소유권자 중 한 명이 아무런 유언 없이 사망을 할 경우에는, Rule of Intestacy를 따른다.
  • A tenant in common can claim a distinct share of the whole estate in either equal or unequal shares (eg ¼ or ¾): Tenancy in common의 경우에는 지분율이 항상 똑같을 필요가 없다. 지분이 동등할 수도 많을 수도, 적을 수도 있다.
  • Holding of undivided shares by a tenant in common, joint tenants have a full unity of interest.

 

 

 

  1. Joint Tenancy (공동 소유권)

 

  • 하나의 property (부동산에) 에 2명 이상의 소유주 가 함께 소유권을 가지는 종류 중 하나로 Undivided Ownership Interest ( 분리되지 않는 소유권 ) 에 속하는 권리중의 하나이다. 등기가 이루어 질 때 아래의 4가지 항목 (four unities)이 함께 이루어 져야 한다.
  • A joint tenancy is a common way for two or more people to share an interest in land: 보통은, 가족간에 주로 사용하는 소유권 형태로, 2명 혹은 3명 이상이 함께 대지를 소유하는데, 비록 소유권자가 2명이라도 한 명처럼 간주한다.
  • Each joint tenant is entitled to the use, possession and enjoyment of the land, subject only to the rights of the other tenant(s): 각각의 공동 소유권자들은 부동산을 소유하고 사용할 수 있는 권리가 있다.
  • Joint tenants have separate rights between themselves, but against “all the world” they are considered one owner: 공동 소유권자들은 대지에 대한 별도의 권리가 있지만 보통 1명의 소유권자로 간주된다.

 

In Peldan v Anderson,[1] the nature of a joint tenancy was described:

"Joint tenants were generally regarded as together composing one single owner."

 

  • This means that each of the joint tenants has a right, shared with the other joint tenants, to the whole of the property. A joint tenant can be seen as holding a separate share or interest in the property.
  • Also, a joint tenant is able to alienate her or his interest in the property either by sale, lease (임대차 계약) or mortgage (담보대출): Joint tenant (공동 소유권자)들은 부동산을 판매 혹은 임대차 계약, 담보 대출로 인하여 양도가 가능하다.

 

  • 예: Banks traditionally preferred to lend money on mortgage to people who held the property as joint tenants, because it provided additional security for the bank. Most “couples” who purchase land take that land as joint tenants. 보통, 은행은 Joint tenants 들에게 담보 대출을 하는 것을 선호한다. 안전하기 때문에.

 

  • Joint tenancies have two essential characteristics:
    • must presence the “Four Unities”
    • the Right of Survivorship.

 


[1] Peldan v Anderson (2006) 227 CLR 471 at [19].

Video Copyright by IndieCityEnt

This summary note is written during the course of the property 2 and the content is extracted from the Real Property Law in Queensland (4th ed) written by Anne Wallace  and the Australian Property Law Case written by Samatha Hepbrn.


법학대학 (영어권) 관련 과목 과외 해드립니다. 법대 과목 이 외  다른 과목 과제 (부동산, 비지니스, 심리학, IT- 데이터베이스 과목 과외)도 도움을 드리고 있으니, 컨택 폼을 이용해서 메세지를 남겨주시면 24시간 이내에 답변드립니다. 거의 법대 과목 에세이는 6점 이상 7점을 받았습니다 (대부분 에세이들을 2점 차이로 만점을 놓쳤습니다. 만점은 7점입니다.). 또한, 영어 통역도 해드리니, 통역이 필요하신 분들도 이 메일 아이콘을 클릭 한 후 메세지를 남겨주시면 24시간 이내에 답변드립니다.

에세이 확인은 여기서 해주세요.  http://www.jinslegalstory.com/law-essay/

 

[Administrative Law Notes] Fair Work Ombudsman

Introduction

  • Ombudsman : The concept of the Ombudsman had its origins in Sweden in 1809.
  • Ombudsman was adopted in Australia:
  • Western Australia firstly adopted an Ombudsman (Parliamentary Commissioner Act 1971)
  • South Australia (Ombudsman Act 1972)
  • Victoria (Ombudsman Act 1973)
  • Queensland (Parliamentary Commissioner Act 1974--> Ombudsman Act 2001)
  • New South Wales (Ombudsman Act 1974)
  • Commonwealth (Ombudsman Act 1976)
  • Northern Territory (Ombudsman (Northern Territory) Act 1981)
  • Tasmania (Ombudsman Act 1978)
  • Entered common law world with UK in 1969
  • Ombudsman were to be independent investigators of the executive.
  • Considered to be ‘officers of Parliament’. Sometimes referred to as Parliamentary Commissioners.

 

What is an Ombudsman?

An Ombudsman is a statutory watchdog over the administration. The primary role is to investigate complaints concerning defective administration by government. This investigation occurs with a view to resolving disputes between citizens and government. The secondary role is to improve the quality of public administration.

 

Who can complain?

Any person can make a complaint to the Ombudsman. They need not be an Australian resident or an Australian citizen.

 

How to complain?

The Commonwealth, ACT and Queensland allow complaints to be made orally and in writing: s7; s20(1)(a) Qld. The Ombudsman can require a written complaints if the complaint is complex.

 

OMBUDSMAN ACT 1976 - SECT 7

Complaints(1)  Subject to subsection (2), a complaint under this Act may be made to the Ombudsman orally or in writing.

 

 

S20 Complaints

(1) Unless this section otherwise provides, a complaint about an administrative action of an agency—

(a) may be made orally or in written form; and

 

 

Key Features of Ombudsman

  • Broad investigatory powers: In general, Ombudsmen are required to conduct their investigations in private that includes the right to people to produce document, furnish information and to attend and answer questions and power to enter premises and inspect documents. If is an offence to fail to comply, subject to certain defences.
  • Discretion to undertake investigations
  • No standing requirement. A person can make a complaint although they are not a person aggrieved.
  • Not limited to ‘decisions’ but policy and practices as well
  • Non-determinative: The Ombudsman has no power to set aside decisions, to require action to be taken or not taken or to substitute their own decisions for those of the department.
  • Ability to make reports, relies on threat of adverse report to effect change:
  • Strongly associated with principles like participation and accountability

 

  • Positive Features of Ombudsman
    • Non-adversarial – often informal investigations
    • By the process of investigation often gets change
    • Reliance on political pressure keeps Ombudsman’s role within executive, rather than courts.
     
     

  • Negative Features of Ombudsman
    • Non-determinative review – sometimes political pressure through reports to Parliament is ineffective.
    • Discretion in taking up investigations.
    • Arguably still subject to political control with respect to appointments and funding.

 

The article is based on the lecture note and the texbook " Administrative Law" written by Douglas and Jones's.

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