Equity and Trusts

LLB 2270/270
LLB2270

Lecture 3.1 Assignments in Possession

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Assignments

• Assignment = transfer of ownership of property from the assigner to the

assignee.
– Requires that the assignor have the intention to give up ownership.
• Assignment includes sales and gifts.
• Assignment can occur in equity or in law.
– Our focus is on equity, but we will discuss some forms of assignment at
law.
Types of Property

• In addressing an assignment problem, you need to consider 1) what type

of property is being assigned, then 2) the type of assignment.
• Re type of property, assignment can be of real or personal property, and
tangible or intangible property.
– Real property = land.
– Personal property
• Chose = literally, a “thing”.
• Chose in possession = tangible property that can be physically possessed.
• Chose in action = intangible personal rights which can be enforced by
action (ie a debt)

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Assignments: Requirements

• Assignment of land (at law):

– Old system = By deed (CA s. 23B(1))
– Torrens title = By registration (RPA s. 41(1))
• Assignment of choses in action at law
– Conveyancing Act s. 12.
• Assignment of choses in possession (physical things)
– Sale = governed by uniform sale of goods legislation
– Gift can occur via:
• Deed of gift.
• Delivery, or
• Declaration of trust (in equity).
Choses in Possession

• Can be small everyday items:

– A book
– A pack of gum
• Can be large:
– A boat
– A car
• Maybe valuable
– Art
– Jewelry
– Antiques
Deed of Gift

• A deed of gift = formal document transferring ownership. Has the benefit

of clarity re intention and identification of goods, is available in case of
future disputes about the gift.
• Examples of deeds of gift forms:
– Museums & Galleries of NSW --
https://mgnsw.org.au/sector/resources/online-resources/collection-
management/deed-gift-form/
– UNSW --
https://www.recordkeeping.unsw.edu.au/documents/Deed_of_Gift.pdf
Gift by Delivery: Requirements

• A gift of a chose in possession by delivery requires:

– An intention to make the gift, (usually requires “words of present
gift”)
– Intention on the part of the done to accept the gift; and
– Delivery
• If all three are present, the gift is irrevocable & ownership is
transferred.
• The person asserting the gift bears the burden of proof on the balance
of probabilities.
– Note that courts will be cautious when claim is re a deceased estate
(see Nolan at [133]).
Gift by Delivery: Intention

• “Words of present gift” demonstrate intention, specify what the gift is

(extent of gift), and when it is to take effect.
– Words of gift are usually present, and, in most situations of disputes that
reach court, necessary to establish gift.
– Words or other evidence must delineate the gift. It must be established
that the intention was to gift the particular property. Per Nolan v Nolan at
[132]: the “object and extent of the intended benefaction”
– Words of present gift are not essential if intention and extent of gift can be
otherwise established -- eg a present wrapped under a Christmas tree with
the recipient's name on it.
• A promise of a gift in the future is not a gift. Without a
contract/consideration it is not enforceable.
• Intention must be to transfer ownership, not just possession.
Acceptance of a Gift
• Papathanasopoulos v Vacopoulos [2007] NSWSC 520
– Facts:
• Vacopoulos (V) proposed to Papathanasopoulos (P), gave her an
engagement ring valued at $15,000.
• Ten days later (August 16, 2005) P told V the wedding was off, “here take
the ring, I don’t want it.” She took it off and put it on the table in front of
him. P said “it is a gift, you can keep it.” He left without taking the ring.
• V put the ring into a box with all other items from the relationship. P
continued to try to get V to resume the relationship.
• Several weeks later, V told her father to throw the box into the garbage,
which he did.
– Found that the ring was given in contemplation of marriage, conversation
of August 16 did not change that.
– V rejected the gift. “A party cannot be forced to take or accept a gift”.
– Because she had taken control of it, she became baillee until it was
returned. In a bailment, a person takes possession of property without
taking ownership. Under the tort of detinue, V was required to pay P the
value of the ring.
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Acts of Delivery

• Delivery
– If there is no delivery, gift is not complete.
• (ie “Anne’s china”, if the china is still in the giver’s home).
– Delivery may be actual, or constructive.
– Actual delivery – physically transferring the object.
• Constructive delivery will depend on the facts:
– Rawlinson v Mort (1905) 93 LT555 – constructive delivery of a church
organ by placing hands on the instrument
– Giving keys will be constructive delivery as they allow for access to
property/control of property.
• Symbolic delivery (where something other than the subject of the gift is
transferred) is not enough – ie gift of a painting by giving a post-card
reproduction of it.
Acts of Delivery, Cont.

• Delivery may be by the donor’s agent. Receipt may also be to the agent of
the donee.
• Delivery may occur before or after the words of gift/evidence of intention.

– A donee may already be in possession of property when the words of

present gift are spoken.
– Further delivery will not be necessary. Property has already been
delivered.
Rowland v Stevenson, [2005] NSWSC 325

• Alleged gift of a yacht by stepfather to his stepson (40th birthday present).

– What evidence of intention was available?
– When did delivery occur? When was the gift complete?
– How does the case illustrate the difference between constructive and
symbolic delivery?
– What is a condition subsequent on a gift?

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Delivery: Chattels in a Common Establishment

Hare in Trap, Sidney Nolan, 1946

Collection of the Art Gallery of NSW
© The Trustees of the Sidney Nolan Trust/Bridgeman Art Library
Nolan v Nolan

• Three paintings, including Hare in Trap, were allegedly given by Sidney

to his wife Cynthia, who died in 1976.
• At the time of the alleged gift, Sidney and Cynthia were living together,
paintings were kept in their home.
• Claimant was Sidney and Cynthia’s daughter, who was the beneficiary of
Cynthia’s will.
• Sidney Nolan and his wife Mary had been in possession of the paintings
after Cynthia’s death (for 27 years). Mary was the beneficiary of Sidney’s
will (he died in 1992).
• Q – Did Sidney gift the paintings to Cynthia?
– If they belonged to Cynthia when she died, the property passed to the
claimant.
– If they belonged to Sidney, when he died, the property passed to Mary.
Nolan v Nolan

• We are reading this case not only for its reasoning on these facts, but for
its extensive discussion of the law on gifts of choses in possession.
– Note, the law is not covered in the assigned readings in the text.
• The issue we are particularly interested in here is delivery. Were the
paintings delivered to Cynthia, when they were kept in a common
establishment?
• What did the court say about the requirement for delivery in a gift of a
chose in possession?

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