Is there sufficient part performance (if oral agreement)? Must be unequivocally referable to alleged agreement (Maddison v Alderson; ‘Strict test). Acts must be sufficient: - set snares, paid helpers, took rabbits. Mason v Clarke - P improved house, took keys, moved in. Regent v Millett If mortgage: Deposit of title documents constitutes part performance, even if by third party (Theodore v Mistford). Also possible to assess on of but not v Stedman), ‘balance probabilities’ (Stedman expressly approved by HCA (Regent v Millett). Is contract specifically enforceable? Must be SE at time contract made (Bunny Industries). If so, constructive trust imposed on vendor on purchaser’s behalf. However, if sold to another party since specific performance not possible (though vendor still holds profits on trust for purchaser). Parties must show ready and willing to perform (Tanwar v Cauchi). Gifts of Real Property Have the proper formalities been adhered to? Torrens System registration - s 40(1). TLA General Law deeds - s 52(1). PLA If not, can equity intervene? 5-step process for registration - execute transfer, hand over transfer, arrange for certificate of title, lodgement of title, registration. If donor has done everything he/she needs to do (i.e. up to Step 3), equity can intervene (Corrin v Patton). However, stricter test by Deane J approved in (NSW): Costin v Costin Must not be able to get title back, so Step 4 (possibly Step 3, but donor can revoke authority to obtain certificate). Other equitable interests in real property
Is there sufficient part performance (if oral agreement)? Must be unequivocally referable to alleged agreement (Maddison v Alderson; ‘Strict test). Acts must be sufficient: Mason v Clarke - set snares, paid helpers, took rabbits. Regent v Millett - P improved house, took keys, moved in. If mortgage: Deposit of title documents constitutes part performance, even if by third party (Theodore v Mistford). Also possible to assess on ‘balance of probabilities’ (Stedman v Stedman), but not expressly approved by HCA (Regent v Millett). Is contract specifically enforceable? Must be SE at time contract made (Bunny Industries). If so, constructive trust imposed on vendor on purchaser’s behalf. However, if sold to another party since specific performance not possible (though vendor still holds profits on trust for purchaser). Parties must show ready and willing to perform (Tanwar v Cauchi). Gifts of Real Property Have the proper formalities been adhered to? Torrens System registration - TLA s 40(1). General Law deeds - PLA s 52(1). If not, can equity intervene? 5-step process for registration - execute transfer, hand over transfer, arrange for certificate of title, lodgement of title, registration. If donor has done everything he/she needs to do (i.e. up to Step 3), equity can intervene (Corrin v Patton). However, stricter test by Deane J approved in Costin v Costin (NSW): Must not be able to get title back, so Step 4 (possibly Step 3, but donor can revoke authority to obtain certificate). Other equitable interests in real property
Property-Basic-Summary.docx