Term 3 2022 – JURD7150

Principles of Private Law

Em Prof Jenny Buchan with thanks to Dr Weihuan ZHOU

Tutorial 10B
Revision

17 November 2022

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 S2, 2013 PPL exam problem question [70 MARKS]
a) What rights does Rupert have in the land? Can he sue Donald for
his injuries?

b) What rights does Dorothy have to the land that Donald has taken?

c) Who has best title to the fibro cottage?

d) What rights, if any, does Paolo have against Dorothy and Li Pty
Ltd?

e) Is the contract between Donald and Li Pty Ltd enforceable? (Ignore

issues of possible defects in Donald's title).

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 Past Exam S2 2013

a) Rupert
Possessory title claim

Adverse Possession:

• Section 27(2) of the Limitation Act: 12 years?

• When did the time start running? Nov 2001

• Why not from Aug 1997 so that Donald’s period of possession is added? Section 38(3) & MuLcahy v
Curramore [1974] 2 NSWLR 464: (1) there must be no gap (i.e. between Aug and Nov 2001); (2)
Donald abandoned possession

• Had 12 years passed?

• Possession is good against all the world except the person who can show a good title: Asher v
Whitlock (1865) LR 1 QB 1; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56
• Is it a part parcel? Worth checking the parcels. If Torrens there can be no adverse possession

Donald’s claim:

• Self-help? McPhail v Persons Unknown (1973) Ch 447; Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB
720; Macintosh v Lobel (1993) 30 NSWLR 441. Rupert remained a trespasser in Oct. But it is the rightful
owner or superior title holder who can forcibly re-enter the land using force no more than reasonably
necessary. Donald did not have better title as he had abandoned the land, and therefore can be sued for
assault
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 Past Exam S2 2013

b) Dorothy

Proprietary title claim

 Legal fee simple:
• Completed contract of sale, payment of purchase price in full, and transfer of legal
fee simple: Bunny Industries Ltd v FSW Enterprises Pty Ltd (1982) Qd R 712
• If adverse possession is not established by 4 November: Dorothy’s rights prevail
over Donald’s rights
• If adverse possession is established by 4 November:
• Rupert’s possessory title extinguishes Dorothy’s title: Whittlesea City Council v
Abbatangelo (2009) 259 ALR 56
• Neither Lucy nor Dorothy took possession or commenced an action for re-
possession – no assertion of title to stop the time running: Section 39

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 Past Exam S2 2013

c) Fibro cottage

Fixture or not
 Reid v Smith (1905) 3 CLR 656
• Temporary structure
• Subjective intention is NOT conclusive
• Objective intention prevails: Reid v Smith (1905) 3 CLR 656; May v Ceedive Pty Ltd
(2006) 13 BPR 24
• Need to consider all the surrounding circumstances: May v Ceedive Pty Ltd (2006) 13
BPR 24
• If fixture is established, then Dorothy or Rupert had better title
• If only chattel, then Donald had better title

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 Past Exam S2 2013

Paolo
 Mining rights
• Oral contract: section 54A(2) Part Performance
• Profit a prendre: can be created by holder of possessory title: Asher v Whitlock (1865) LR 1 QB 1
• Part performance: Mason v Clarke (1955) AC 778 [whether exclusively referable to the oral
contract]
• Paolo‘s right against Dorothy depends on whether Rupert had adverse possession.
• If yes, Paolo can enforce his rights;
• if not, an earlier equitable interest may be defeated by a later legal fee simple: general
principle is bona fide purchaser for values w/o notice defeats equitable: Bunny Industries
Ltd v FSW Enterprises Pty Ltd
 Trespass and conversion
• Ownership and actual possession: physical control of the machinery
• Assertion of dominion over the machinery and use inconsistent with ownership: Penfolds
Wines Pty Ltd v Elliott (1946) 74 CLR 204
• Donald: trespass & conversion
• Li Pty Ltd: no trespass (Paolo had no actual possession); conversion for asserting
dominion over the machinery without authority from Paolo. Lack of knowledge of
Donald’s defect in title is no defence: Nemo Dat rule 6
 Past Exam S2 2013

e) Donald and Li Pty Ltd

• Raises question of illusory consideration.

• Consider the different ways this arrangement can be interpreted:
 as a contract for a fair price: as it was a contract for the sale of goods, an
agreement for market price is enforceable (compare land). This does
depend on whether there is a market price.
 as a contract for a fair price as determined by ‘their financial adviser’.
– If ‘their financial adviser’ is a third party, this can be enforceable (even if they are akin to a
lawyer – according to Gibbs J in Goddecke v Kirwan.
– If their financial adviser is part of the company, it is allowing the price to be determined
by one party: prima facie a problem, unless their discretion can be constrained in a
manner that makes it workable – e.g. they must act honestly and / or reasonably.
– (unlikely that this would be the interpretation).

 Further issue is whether parties had intention to be immediately bound,

or only bound when the price came in – which might be considered more
logical / plausible.

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 Question 2 2013 [30 MARKS]

Which is the more just remedy in cases of estoppel:

a) rectification of the detriment suffered by the promisee, or

b) the fulfilment of the promise made by the promisor?

Should the result be different depending on whether the action is one of

proprietary or promissory estoppel? Discuss by reference to the case law.

 Explain the issue and the context it may arise

 Discuss the relevant case laws (e.g. different opinions among judges of HCA and current
position of the law in Australia and how it currently differs in NSW)

 Discuss the academic debates over the issue (e.g. materials from your books)

 Your views for or against, and why

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 Q2 from T1, 2022 final exam
Consider the following statement:
• “The law on adverse possession is biased against true owners and must be
changed to impose higher conditions on claims of adverse possession.”
• Do you agree? Refer to cases and materials from the course to support your
argument.

• Good answers clearly outlined the relevant principles underpinning adverse possession and supported this
with reference to statute and case law either in the introduction or first substantive paragraph after the
introduction.

• Good answers engaged extensively with the materials from the Custom Publication. These responses
included a good combination of both description and argument – an explanation of the point raised in the
Custom Publication then an analysis of how that point relates to both the question and the wider
argument. Although many students referred to the same materials, there was extensive variation in how
well students described various concepts and the extent to which their response moved from mere
description to more persuasive analysis.

Specific comments
• There is no required structure of an essay. Since the question concerns adverse possession, students may
start by outlining what adverse possession is and when it applies, with reference to Limitation Act s 27 and
eg Perry v Clissold Students should do this briefly and then focus on addressing the question.
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 the distinction between part performance and equitable
estoppel

• Part performance
– Starts with a binding contract

• Equitable estoppel
– Starting point is that there was not a finalized contract

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