Property Rights Flowchart

Topic Issue Principle to Apply Exception to the rule Case

What is Property? Blackburn J-‘Property... generally implies the right to use or enjoy, the right to exclude others, and the right to alienate’
Milirrpum v Nabal Co., Pty Ltd. (1971) 17 FLR 141 (LIBERAL TRIAD) – minimum rights to be owner
The right to use Can come from ownership, a public right etc
or enjoy
The right to I. Alienation does not refer to the
alienate (right transferring of the whole thing but
to assign creating little parcels of rights
property to
others)
The right to I. This is considered to be the most Stow v Mineral Holdings (right as the public has is not exclusive
exclude definitive of the three rights (Cohen J) proprietary right)
(exclusive rights
against others) Respondent was mining on land adjacent to the South West National
II. Property right is essentially a Park in Tasmania. Appellant lodged objections to mining with the
private right exercisable against the warden on the grounds that prospecting or mining would damages
general public, including the state the Park.
Held: All members of the public have a public right to pass freely but
III. Public right to pass freely is not a none have in their capacity as members of the public any estate or
property right (Stow v Mineral interest in the land.
Holdings)
An individual who enjoys a right as the public does not have a
proprietary right.

Property Rights and Contractual Rights

Topic Issue Principal to Apply Exception to the Rule Case
I. What is a license? Licenses are contracts, which allow a Cowell v Rosehill Racecourse Co. (ticket
person to use another’s land without is contractual license which can be
committing trespass. Licenses confer revoked at licensor’s will though in
personal rights and not proprietary breach of contract)
rights (which are necessary to sue in
other trespass)
Plaintiff claimed to have contractual
II. Is the license bare? This refers to the authority given to a license with the owner of the land- so that
person to enter another’s property for he could remain on the racecourse and his
that person’s benefit license would not be revoked. The
defendant claimed the plaintiff was
trespassing on his land and when the
III Is the license Contractual license provides an Whilst a contractual plaintiff refused to leave the grounds, his
contractual? express or implied permission to enter license does not confer servants and agents then removed him
Licenses or use the property in exchange for proprietary interest, it using no more force than was necessary
some consideration. (Cowell v may be used to exclude for the purpose. Plaintiff claimed for
Rosehill Racecourse Co.) third parties if that is assault.
within the purpose of
the license (Georgski) Held: the majority held that the license
(ticket) give no proprietary right but a
mere contractual right which is
IV Is it a license This license also conveys a property The range of interests enforceable only in personam by an
coupled with an interest. E.g. Profit a predre, a license that can constitute a action in damages. The contractual right
interest? coupled with an interest arises when a proprietary interest are did not give rise to a proprietary right.
person acquires the right to take limited by the numerus
possession of property located on clausus principle
someone else’s land.
Topic Issue Principle to Apply Exception to the Rule Case
I Bare License A bare license does not involve a
contractual relationship between the
licensor and licensee, nor does it
involve the grant of a proprietary
interest in the land (p. 12 of Custom
Publication): revocable at the will of
the licensor for any reason

i.e landowner allows a picnic on his

property
II Contractual licenses A contractual licence is created The commonwealth NSW Rifle Association Inc v
through a contract as the name cannot terminate a Commonwealth [2012] NSWSC 818
suggests (p. 12 of Custom contractual license (contractual license could not be
Publication). unless it is within the revoked within terms to third parties)
terms. The doctrine of
At law, the position was taken that a executive necessity did
The plaintiff Rifle Association occupied
contractual licence could be revoked not relieve the
an area of Commonwealth land on the
by a licensor, though this may give Commonwealth from its
Malbar Headland pursuant to a
rise to a claim in breach of contract. contractual obligations
contractual license for use as a rifle
on the basis of a change
range. Defendant government proposed to
in policy. NSW Rifle transfer the land to the State of NSW for
Revocation Association. use as a national park, which would be
inconsistent with the plaintiff’s use of the
Under property law: revocable at will, land as rifle range. Plaintiff sought an
at any time) injunction to restrain an anticipatory
Under contract law: cannot revoke breach of contract.
during the contractual period/ breach
of contract if revoked.
Held: granted the injunction
Restraining the Commonwealth from
transferring the land, unless the transfer
were on terms that entitled the plaintiff to
enforce against the transferee the rights it
enjoyed under its licence granted by the
Commonwealth.

- there are equitable remedies. Even

though at law, licence to occupy land is
terminable at will, even in breach of
contract, equity will enforce contract over
property to grant injunction.

One cannot simply terminate a

contractual licence that entitles a
license to occupy land.
III License coupled Arises where the license is paired
with an interest with a proprietary interest. In this
case, the license cannot be revoked.

Example: A grants B a profit à

prendre, permitting B to quarry for
gravel on A's land. The license to
enter the land cannot be revoked as
long as the quarry is in operation

Under property law: cannot be

revoked within the terms
Under contract law: cannot be
revoked within the terms

Topic Issue Principle to apply Exception to the Rule Case

Licenses and I Is the license Licenses are only enforceable against King v David Allen & Sons (contractual license to put up posters
third parties enforceable against the licensor, not third parties if it did which cannot be applied to third party)
third parties? not create a proprietary right. => No The licensor formed agreement in the form of a ‘license’ with the
proprietary right =>cannot exclude licensor allowing the licensee to put up posters on the property walls.
third parties. License: Minimum 4 yrs from date of theatre construction and
thereafter terminable by either party on 6 months’ notice. Licensor
would not allow any other company to put up posters. The licensor
then leased the property to another company, which did not refer to
original agreement with licensee. After completion of the theatre, the
licensee attempted to put up posters, but was forcibly stopped by the
other company from doing so. Licensor protested to no avail.

Held: only proprietary rights can be enforced against third

parties. (no proprietary right with this license). Therefore, not
enforceable against the new tenant.
An interest is not proprietary simply because it is enforceable
against third parties. A proprietary interest could have been created
through clear wording in the contract as a lease (shows importance of
construing the document).

Numerus I What is the Numerus I Landowners cannot simply create Georgski v Owner Corporation Strata
Clausus Clausus principle? new types of rights- if a person Plan
receives a type of right, it must be one (Where a slipway &jetty was built with a
of the (a closed list) of established contractual license).
categories. Plaintiff held a license from the Crown
over the riverbank, upon which they built
Property law, by contrast to contract, a jetty and slipway. Defendant held an
is very restrictive, mostly because of easement from western edge of plaintiff’s
its potential to affect third parties. land to riverbank. The plaintiff sought an
Georgski v Owners Corporation order declaring her rights over the jetty
Strata Plan and slipway, and forbid the defendant
from trespassing on them

Held: Easement is a proprietary right, you

will have a right to exclude others;

Property Rights in New Contexts

Topic Issue Principle to Apply Exception to the Rule Case

Human Body I Person is deceased Hayne's case is cited as However, there have been exceptions made, such as where the corpse has
authority for there being no undergone some process or been subject to human skill (Doodeward v Spence)
right of property in a corpse.

II Blood, tissue or Moore's case involved an Human Tissue Act 1983 (NSW) is "An Act relating to the donation of tissue by
fluid is removed unsuccessful action by living persons, the removal of tissue from deceased persons, the conduct of post-
the plaintiff John Moore mortem examinations of deceased persons, and certain other matters."
against several defendants, • Section 32 of the Human Tissue Act 1983 (NSW) creates a prohibition
including a against trading in tissue. 'Tissue' is defined in s 4 of the Act: "includes
doctor, for conversion. A 4-2 an organ, or part, of a human body and a substance extracted from, or
majority in an appeal to from a part of, the human body."
the Supreme Court of • Section 32(2) of the Act creates an exception for the sale or supply of
California held that Moore tissue if the tissue has been "subjected to processing or treatment and
could not be said to have the sale or supply is made for the purpose of enabling the tissue to be
ownership or a right to used for therapeutic purposes, medical purposes or scientific
possession of his cells. purposes."

Right to Is there a right to English and Australian law does Protection of privacy may be Victoria Park Racing and Recreational
Privacy privacy not recognise a general right to available through other avenues, Grounds v Taylor
privacy (Victoria Park Racing) such as tortious claims in trespass
The Plaintiff (Victoria Park Racing)
sought to restrain the defendant (Taylor)
from broadcasting information about the
races over the radio from the platform he
built on his property, as it impacted their
revenue.

Held: There can be no property rights in a

spectacle, no wrong was committed that
was known to law. Building the platform
was not an unnatural use of property.

The court did not recognise the existence

of a legal right to privacy
- Latham CJ ‘no doubt the owner
of a house would prefer that a
neighbour should not have a
right of looking into his
windows…but neither this court
nor a court of law will interfere
on the mere grounds of invasion
to privacy’.

Control of digital Control varies for different It is possible to effect a legal UK Law commission
Digital Assets assets forms of digital assets, UK law transfer of a crypto-token offchain,
commission recommends that by a “change of control” (along
Government creates a ‘panel of with the requisite intention).
industry-specific technical
experts, legal practitioners, We conclude that the common law
academics and judges’ to could develop to recognise a
provide non binding guidance control-based security interest in
respect of crypto-tokens and
cryptoassets (possibly by analogy
with pledge). But the development
of such a security interest would
likely not be a complete solution
given that such a security interest
would likely be reliant on static,
comprehensive notions of control.

Fixtures
Chattels may change character for personal to real property
Topic Issue Principle to Apply Case
Contract? Consider the contract of sale/lease, whether there is any specification as to who is entitled to the chattel/item Hobson v Gorringe

And is it enforceable against third parties

I Intention (Belgrave Belgrave Nominees
Nominees) Step 1: Degree of Annexation (presumption) Plaintiff installed air
Australian Provincial Assurance Co Ltd v Coroneo Test conditioning units on the
Consider - If a chattel is fixed to land to any extent/degree by any means other than roof of the defendants
1) the degree of its own weight = prima facie fixture. Hence, The burden of proof upon building. Wanted the air
annexation; the party denying that it is a fixture (Belgrave Nominees). conditioners back.
and
- If the chattel is attached to land by its own weight = prima facie not a Held: To ascertain whether
2) the purpose o fixture. This presumption is rebuttable and the party arguing it is a fixture something is or is not a
f the bears onus of proof (NAB v Blacker per Conti J) fixture, examine all the
annexation circumstances. In this case,
o Kaye J's Belgrave Nominees, slight fixing is sufficient to raise such circumstances
the presumption that a chattel is a fixture. included the status of the
defendant as a
Palumberi v Palumberi (1986) NSW ConvR ¦ 55,287, 56,672 (Kearney J): subcontractor and their
If contract relationship to the plaintiff
is silent : - “It would seem from a perusal of …authorities in the field that there has as owner of the freehold.
Chattel vs been a perceptible decline in the comparative importance of the degree or
Fixture mode of annexation, with a tendency to greater emphasis being placed May v Ceedive
Topic upon the purpose or object of annexation, or putting it another way, the
intention with which the item is placed on the land.” Held: all the surrounding
circumstances should be
examined to determine
Step 2: Rebuttal: Objective intention whether a particular item is
Intention of the parties (Belgrave nominees test – overall circumstance) a fixture or chattel.
- Nature of the chattel; • Subjective
- The relation and situation of the two parties; intention is not
- The mode of annexation necessarily
o Secure fixing, such that the chattel cannot be removed without relevant to the
significant damage = strong but not conclusive evidence it was question of
intended to be a fixture (Leigh, Blacker) whether the
o Insecure fixing likewise provides strong, but not conclusive house had
evidence that it is a chattel primary status as
- The purpose of which the chattel was fixed a fixture or
o Temporary purpose – not a fixture chattel based on
 Attorney-General v RT Co: Printing presses were reasoning of
secured by bolts to keep them steady, but in operation Santow JA.
were held to be chattels
o Better enjoyment of land/buildings = fixture
(Belgrave – air-conditioning to improve land)
 Hobson v Gorringe: A gas engine became a fixture,
despite provisions in the agreement to the contrary

- Santow JA's reasoning in May v Ceedive Pty Ltd, subjective intention is

not necessarily relevant to the question of whether the house had primary
status as a fixture or chattel.

Issue Principle to Apply Case

Step 3: Specific - Tapestries
applications of chattels Leigh v Taylor: Tapestry wasn’t a fixture because there was no
vs propert intention to dedicate these tapestries to the house, and the tapestries weren’t able to be enjoyed without being fixed

- Contracts
May v Ceedive: A contract may not be decisive, nor may the
intention of one of the parties
- The appellant signed a contract for sale which specified that the appellant only owned the house, and not
the land
- May’s intention didn’t matter – it was the intention of the person who affixed the house
- If you moved the house you would probably ruin it ∴fixture

- Cinema Chairs
Australian Provincial Co Lt v Coorneo (1938): a theatre contained a row of seats bolted to the floor – held they
remained chattels because the seats were regularly moved around

Vaudeville Electric Cinema Ltd v Muriset (1923) – cinema chairs were bolted in place and were fixtures

- Irrigation equipment
National Australia Bank v Blacker (2000) – items of irrigation were chattels, because they rested on their own
weight and could be easily removed

Litz v National Australia Bank (1986) irrigation equipment was a fixture because damage would occur if they
were removed

- Houseboats
Chelsea Yacht and Boat Co Ltd v Pope (2001) - Houseboats that are moored – don’t become a fixture unless they
are moored very permanently

- Tenant’s fixtures
Common law rule: Permits a tenant to remove any trade, ornamental and domestic fixtures affixed by the tenant
during the term of the law
- Right to remove is before the expiry of the lease, or if the lease doesn’t have an expiry date within a
reasonable time at the end of the lease (D’Arcy v Burelli Investments Pty Ltd)
- New Zealand Government Property Corp– If a tenant surrenders his lease and vacates the premises
without removing his fixtures, he is held to have abandoned them

Agricultural and residential tenancies

- Statutes generally allow tenants to remove agricultural fixtures hat they affixed, but with the landlord
having an option to buy

Chattels annexed without permission

- General rule: in the absence of agreement, a person who annexes a chattel to the owner’s land has no
right to recover it
- Chateau Douglas Hunter Valley Vineyards: Neither party knew that the winery was not situated on the
winery company’s land, but held the winery were fixtures to the vineyard
Brand v Chris Building Society Pty Ltd: The defendant accidentally built a house on the plaintiff’s land instead of
the adjoining block o Held plaintiff was entitled to possession, as long as the mistake was not induced by un
unconscionable or dishonest conduct of the plaintiff

Torts for protection of goods

Topic Issue Principle to apply Case
Does the Step 1 – Possession and ownership (Owner in possession) Young v Hitchens
plaintiff Two conditions must be fulfilled for actual possession: - Two groups wanted same fish,
have 1) Actual physical control found partial closure of a groups
possession 2) Intention to possess, or animus possidendi net was not enough
of goods ? - De Facto control is needed
Step 2 – If possession and ownership are between different people
- Contractual bailment, where the owner grants a temporary right of possession to The Tubantia
another - Defacto control and animus
- Hire-purchase agreements possidendi must apply
- Contracts for the sale of a chattel where the seller retains custody
- Finders of lost or mislaid chattels
- Where goods have been stole

Must have
1) An immediate right to possession
2) A future right to posession
Trespass Lies when there is an interference with the plaintiff’s actual possession, such
Remedies as the wrongful taking of goods and is actionable without proof of damage Penfolds Wines v Elliot
- A non-owner who was in actual possession at the time of the taking
can sue in trespass, while a person who was not, either personally The appellants sought an injunction and
or though an agent or bailee cannot. (Penfolds Wines v Elliot) other equitable relief against the
Conversion Lies at the suit of a plaintiff who was in actual possession of goods at the respondent, alleging that the respondent
time of the wrong or had an immediate right to possession, the action being wrongfully interfered with their rights of
an intentional denial of the plaintiff’s dominion over the goods. property and possession in personal
- Title to sue in conversion depends on the right to possession, not chattels, specifically bottles. The appellants
proof of absolute ownership took precautions not to relinquish
- “Conversion consists of a positive wrongful act of dealing with ownership of the bottles used for selling
goods in a manner inconsistent with the rights of the owner’ - wine, as indicated on invoices and through
Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 at branding.
264 (Privy Council), Penfolds Wines Pty Ltd v Elliott (1946) 74
CLR 204 at 229. They claimed that the respondent, a
o Commonly occurs where foods are transferred into the hotelkeeper, had been collecting the
possession of the wrongdoer or a third part who is not appellants' bottles and using them to sell
entitled to them. Cook v Saroukos (1989) 97 FLR 33 at other wines and liquids. Legal proceedings
41 it was stated: ‘The delivery of goods to a third party were initiated after an authorized inspector
with the intent to pass ownership, or even possession, visited the respondent's hotel, took bottles
constitutes conversion’ for wine analysis, and divided them into
- Mere handling or detention is not sufficient to find a claim a samples.
conversion, must show a freedom of use amounting to employing
goods as if they were ones own: Kuwait Airways Corp v Iraqi Held:
Airways Co [2002] AC 883; [2002] UKHL 19 at [42]–[45].
- Trespass
Detinue Lies at the suit of a plaintiff who must have an immediate right to possession, No trespass
the gist of the action being that the defendant wrongfully retains the plaintiffs - They did not have actual
good following the plaintiff’s lawful demand for its return. possession of the bottles at the
- Plaintiff does not need to prove title or ownership, but the right to time of the allegedly tortious act-
possession must provide from some proprietary or possessory interference with chattels, but the
interest in the chattel: Horsley v Phillips Fine Art Auctioneers Pty possession that was interfered
Ltd (1995) 7 BPR 14,360; Russell v Wilson (1923) 33 CLR 538. with was of the bailee not the
Elements will usually ground an action in conversion, e.g where bailors.
the defendant wrongfully took the goods and refused to return - Also bailee couldn’t bring action
them on demand in trespass because interference
Action on the Lies at the suit of an owner out of possession who has a mere right of future was authoried
case possession, but the damage to the chattel is ‘special’, meaning is is enduring,
as where the chattel is completely destroyed. Conversion
In such situations, the owner’s future or revisionary interest is harmed: Yes conversion
Palmer, 257; Trindade and P Cane, The Law of Torts in Australia, Oxford - Court held that the acts amounted
University Press, Melbourne, 1985, 139-40 to conversion because they
Penfolds: At 130, Dixon J constituted an assertion of
‘Special action on the case and does not depend on the plaintiff having an dominion over the chattels- filling
immediate right to possession, the foundation of the action is the damage and bottles provided by appellants
permanent damage to the chattel that must have occurred, that is damage bailees was for the purposes of
which would enure to the ‘revisioner’’ the respondents trade which was
far form being a casual
If the damage or loss to the chattel is permanent, then the bailor can pursue interference with proprietary
‘an action on the case’ because the damage will permanently impair their rights
 reversionary interest. On this basis, it will not matter that the bailor does not
actually have possession of the chattel at the time of the act.
- For example: Mears v London and South Western Railway Co
(1862) 11 CBNS 850.

Possession Plea of Jus Generally used to describe the right of a third party that is superior (above) Jeffries v The Great Western Railway Co
by third Tertii (right of a the rights of both the plaintiff and defendant.
party third party) - Owen owned trucks. Went bankrupt.
The availability of this defence arose in Jeffries v Great Western Railway Co - All title of property vests in the
• Exception: Where possession is title in an action against a trustee in bankruptcy o Up to the
wrongdoer, the defence does not apply. However, per Wightman J trustee to give the money to creditors
in Jeffries v Great Western Railway Co, in some cases the defence - Before trustee had possession, Owen
will be available where the plaintiff was not in actual possession. purported to sell the trucks to Jeffries
and Great Western Railways
- Both thought they were buying the
title, neither were. Title with the
trustee. - Jeffries took possession of
the trucks. Then GWR took it from
Jeffries.

Held: Neither had title, title is with trustees

in bankruptcy, shouldn’t reward people for
seizing possession
- person who has possession first
(even if it is through
wrongdoing/a tort) has a
relatively better title compared to
someone who takes it off of him
- same as land: possession= title
- Cant rely on Jus tertii, not acting
on behalf of creditors

“against a wrongdoer possession is title."

Lord Campbell at 681.
Possession Bailment The Winkfield
by bailee Bailment arises when one person (bailor) is the owner of goods, but another
person is temporarily in possession of them (bailee). Two ships, the Winkfield and the Mexican,
collided off the coast of South Africa,
Bailment is a common commercial practice, usually arising through contract. resulting in damage and the sinking of the
For example, contracts to hire equipment and dry-cleaning services. Mexican. The Winkfield's owners admitted
liability for the collision. The Postmaster-
During the period of the bailment contract, the bailee has actual possession. General sought compensation for the value
If the item is lost during this period and ceases temporarily to be in the of lost mail from the collision, but the court
bailee's possession, the bailee holds an immediate right to possession of the rejected the claim, stating that the
item. Postmaster-General lacked liability to those
interested in the lost mail. An appeal was
The bailor has a future right to possession once the hire ends. subsequently filed by the Postmaster-
General.
Gratuitous bailment refers to circumstances where a bailee takes possession
of goods without reward or consideration. When the bailor demands the Held: A bailee may seek recovery against
return of items, the bailee returns the items (bailment at will). the bailor for trespass or damage to chattels,
regardless if the bailee is not liable to the
It is possible for a bailee to be an involuntary bailee where they take bailor for the trespass or damage as well.
possession of an item without the consent of the owner, such as where lost
items are found and in situations of theft.

To successful make a claim in detinue or conversion, a plaintiff must

establish that they had actual possession or an immediate right to possession
at the date of the interference with the goods, or at the date of the demand for
the goods.
- Through the test to prove possession
- Or through a contract

Bailee’s Rights: The Bailee has actual possession, and a right to immediate
 possession of the item if it is lost or taken by a third party without
permission.

This means the Bailee can bring claims in trespass, conversion or detinue
depending upon what has happened.

Bailor’s Rights: Under a bailment at will (or a contractual bailment that has
concluded) the Bailor will also have a cause of action as they have an
immediate right to possession.

Double Recovery? Should a wrongdoer who causes damage to the good be

liable to both the Bailor and the Bailee? See: the Winkfield.
Remedies Damages: assessed on the basis of the interference involved.
for Torts
Injunctions: where the conduct is likely to continue.

Self-help: in cases of trespass, conversion or detinue.

- The owner, or the party entitled to possession, may undertake the
remedy of ‘recaption’ to recover the chattel.
- May use such force as is reasonably necessary. May also enter onto
the land of the wrongdoer to retake the chattel.

Specific Restitution: in cases of detinue.

Possession of Land and Adverse Possession

Issue Steps Case
Title in actions to The law grants the fullest estate to the possessor unless Perry v Clissold (‘Relativity of claims’)
recover possession the plaintiff can demonstrate a better interest Facts
of land (Cockburn CJ: Asher v Whitlock, Perry v Clissold, Allen Clissold’s executors brought an action for mandamus, to compel
v Roughley) Perry (Minister of Public Instruction NSW) to value land.
1. Is there a claim for possession by a paper title The land had been compulsorily acquired by the Crown in 1891.
holder (Powell) Clissold had taken possession of the land in 1881 and fenced it. The
2. Is there a claim by a previous owner or owner of the land was unknown.
possessor
Held: Lord MacNaghten – Posessor has a perfectly good title against
If yes, no adverse possession is available, if not continue all but the rightful owner, if the rightful owner does not come
forward and assert his title through the law within the time limit
outlined by the Statute of limitations, the Possessor acquires an
absolute title.
- Squatters can in effect become rightful owners

Elements of adverse Bridges v Bridges test Whittlesea City Council

possession – (i) For a person to acquire possessory title he involved approximately half an acre of vacant General Law Land in
Possessory title or she must be shown to have had both Mernda, originally obtained by the Whittlesea City Council in 1908
factual possession and a requisite for a shire hall that was never built. Mrs. Abbatangelo and her family,
intention to possess the land. who purchased the neighboring property in 1958, treated the disputed
land as their own. In 2004, Mrs. Abbatangelo claimed adverse
Factual Possession possession, citing various acts, including installing a gate,
Factual possession signifies an appropriate degree of maintaining fences, and using the land for various activities. The
physical control, and it must be single and exclusive council disputed the claim, relying on a 1979 document stating the
possession. This is a question of fact dependent on land's municipal purpose and a 1992 visit where Mrs. Abbatangelo
circumstances such as the nature of the land and [how] allegedly acknowledged the council's ownership. The case hinged on
the land is commonly used or enjoyed. There is no conflicting evidence regarding adverse possession and the council's
universally applicable principle to resolve this question. claim to the land for municipal purposes.
alleged possessor has been dealing with the land in
question as an occupying owner might have been 1. Actual physical control, the degree of which is dictated
expected to deal with it and that no-one else has done through analysing the circumstances
so. o What must be shown is the alleged possessor
has been dealing with the land in question as
Animus possidendi an occupying owner might have been expected
The intent to possess is that of the claimant to title by to deal with it and that no-one else has done so.
possession and involves an intention in relation to the 2. The required legal intention is not ownership but rather an
whole world, including the owner with the paper title. intention to possess the land. The adverse possessor doesn't
need to believe they are the owner.
Adverse possession o clear and affirmative evidence that the
Must show the plaintiff who wants possessory title was trespasser, claiming that he has acquired
there without permission possession, not only had the requisite intention
to possess, but made such intention clear to the
Note: world
There must be clear and affirmative evidence that the 3. Mere use falling short of possession, such as casual or
claimant has acquired possession. Equivocal acts will occasional trespass, is insufficient to establish adverse
normally not suffice. possession.
- The acts must be indicative of the requisite 4. The use of the land by the adverse possessor doesn't need
intention to possess. to conflict with the owner's present or future use for
adverse possession to occur.

Liability (must be Order for Possession of Land: permits the McPhail v Persons unknown
without consent) owner/possessor of the land to recover possession as well Facts: Squatters moved into the premises that they believed to be
as compensation. For example, mesne profits (e.g. rental unattended, but the premises were locked and secured. When the
Actions to recover value) landlord realised what happened he asked the squatters to move out.
or protect posession They asked for some more time, until they find another place to live
Trespass to Land: a party whose possession has been in.
disturbed may bring an action in trespass. Held:
 The court assessed the situation and held that since it was
Self-Help: a party entitled to possession may use possible for the landlord to obtain self-remedy (that is,
reasonable force to remove a trespasser. However, this eject the squatters with the use of reasonable in the
runs the risk of amounting to assault. circumstances force), he should not be worse off if he came
to court to obtain the official order. Thus, the court did not
Imperial Acts Application Act 1969 (NSW), s 19: grant the extension on a policy basis.
 No person being in actual possession of land
for a period of less than three years by himself  Lord Denning distinguished between rights of tenant and
 or his predecessors shall without colour of right squatter. A squatter is a trespasser (unlawful), a tenant is a
hold possession of it in a manner likely to cause possessor (lawful). An owner is entitled to turn out a
a breach of the peace or a reasonable trespasser using force (Browne v Dawson (1840) – remedy
apprehension of a breach of the peace against a of self help which the court would like to deter), but may
person entitled by law to the possession of the use no more force than is reasonably necessary (Hemmings
land and able and willing to afford reasonable v Stoke Poges Golf Club [1920] ).
information as to his being so entitled.
 Note: "It is different with a tenant who holds over after his
Inclosed Land Protection Act 1901 (NSW): term has come to an end or after he has been given notice
 S 4(1): Any person who, without lawful to quit. His possession was lawful in its inception. Even
excuse…enters into inclosed lands without the after the tenancy is determined, he still has possession. If
consent of the owner, occupier or person he remains in possession and in occupation, there is a high
apparently in charge of those lands, or who authority for saying that the owner is not entitled to take
remains on those lands after being requested by the law into his own hands and remove the tenant by
the owner, occupier or person apparently in force."
charge of those lands to leave those lands, is
liable to a penalty
 S 3: inclosed lands’ means any land, public or
private, inclosed or surrounded by a fence, wall
or other erection.

Adverse possession: Identify whether the owner was dispossessed Limitation Act 1969 (NSW), s 28:
when does the clock - Do the adverse owners satisfy possession? Where the plaintiff in an action on a cause of action to recover land
start Based on above test or a person through whom the plaintiff claims:
For example a) has been in possession of the land, and
 Fencing the land? b) while entitled to the land, is dispossessed or discontinues
 Building on the property? his or her possession,
the cause of action accrues on the date of dispossession or
 Maintaining the gardens? discontinuance.
 Paying rates and taxes?
 Blocking access to others?

When they were dispossessed

Adverse Possession: Per the Limitation Act 1969 (NSW):
Limitation Periods  Goods: Claims in relation to Goods are barred after six years: ss 14, 21.
 Private Land: Claims to recover possession of Land are barred after 12 years: s 27(2).
o An action on a cause of action to recover land is not maintainable by a person other than the Crown if brought
after the expiration of a limitation period of twelve years running from the date on which the cause of action
first accrues to the plaintiff or to a person through whom the plaintiff claims.
o A party who has possessed Torrens Title land for the period required by the Limitation Act 1969 (NSW) (i.e.
12 years) can lodge a possessory application: s 45D(1) Real Property Act 1900 (NSW).
 Crown Land: Claims to recover possession of Crown Land are barred after 30 years: s 27(1).

Adverse Limitation Act 1969 (NSW) S 38 (2)

Possession : Subject to subsection (3), where a cause of action accrues to recover land from a person in adverse possession of the land, and the
Successive land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not,
Possessors the cause of action to recover the land from the second person accrues on the date on which the cause of action to recover the land
from the first person first accrues to the plaintiff or to a person through whom the plaintiff claims.
- In essence, this provision ensures that the legal timeline for recovering land from successive adverse possessors is
connected. The cause of action against the second person is tied to when the cause of action against the first person first
emerged, regardless of the relationship between the first and second adverse possessors.

They must register the land, or original owner still has title. They can then sell it etc
 Equitable interests in land
Even where the statutory formalities fall short, the purchaser may have acquired an equitable interest in the property

Topic Issue Tests Case

Equitable Contract Bunny Industries v FSW Enterprises
Interests Test Overview Facts: Bunny Industries entered into a contract to purchase
1. A contract has proprietary effect if it is land from the first defendant, FSW Enterprises. Later, FSW
specifically enforceable: Bunny Enterprises Enterprises contracted to sell the land to X, the second
2. Specific enforceable contracts require it to defendant. FSW Enterprises executed a transfer of land to X.
be evidenced in writing: PLA s 126 When the transfer was registered, X acquired legal title to the
3. If it is not evidenced in writing by both land.
parties, turn to the doctrine of part
performance Held:
For an equitable interest to arise in the sale of land, there
must be an enforceable contract, meeting necessary
formalities.

The case of Bunny Industries highlights the concept of an

unpaid vendor retaining an equitable lien over the land for
Where a contract for the grant of an interest in the land the unpaid balance of the purchase money which survives the
is specifically enforceable, the purchaser acquires an conveyance of legal interest.
equitable interest: Bunny Industries
- An order for specific performance must have Specific performance may not always be possible, as seen in
been available when the first defendant this case where the property was already sold. X is able to
entered into a contract with the second keep the land in reliance of ‘curtain principle’, relying on
defendant registered title.

However, the vendor can still be considered a trustee and

held accountable for dealing with the property in breach of
trust, including leases (referenced in Walsh v Lonsdale).

Finally, an equitable interest arising from a transaction for

value is created by activating the conscience of the recipient
of valuable consideration, establishing a "trust," as opposed
to arising from the transfer itself.
IF WRITING NOT POSSIBLE, CONSIDER PART
PERFORMANCE BELOW
Walsh v Lonsdale (1882)
Case summary
Facts
Lonsdale = landlord. Walsh = tenant.
Agreement to grant lease for 7 years
Term of the contract included rent payable yearly in advance
Legal lease never executed
Despite the agreement, Walsh paid rent quarterly in arrears
for 3 years
Lonsdale asked Walsh to pay for the lease 1 year in advance
Walsh did not comply
Lonsdale seized his goods to pay for the proceeds
Held
Lonsdale got remedy of distress of the breach of an equitable
lease out of a specific performance agreement
A legal lease can be automatically implied from the payment
of rent which doesn’t need to be in writing PLA s 54(2)

Topic Issue Tests Case

Set the scene Typical scenarios:
 Even if a contract to create an interest in land is oral and fails to meet the 1. Where X has taken possession of the land, with the
formal writing requirements, it can still be enforced in equity if it has consent of the vendor/landlord, it is clear that he
been partly performed - effectively, part performance puts parties in the has partly performed the oral agreement, and
position they would have been in if the contract had been in writing. therefore has an equitable interest (Regent v Millet)
2. Where X has paid money in accordance with the
If it can be shown that the party who did not sign the contract, made a oral agreement. Under Australia law this is not
commitment to the contract, such as performing acts relating to it, equity sufficient to satisfy part performance (McBride v
will find the contract enforceable against them (Mason v Clarke) Sandland); however, the payment of money is now
considered sufficient part performance in UK
(Steadman v Steadman), which suggests that the
4 Basic elements must be proven law could possibly change in the near future.

Regent v Millet ▪ Note, though, that Steadman was rejected in principle by

1. Oral contract the High Court in Regent.
2. Acts of performance
3. Unequivable referability
4. Unconscionable to deny interest
Oral Contract 1. There must be an oral agreement for the The essence of part performance is that a party to oral
creation of the property interest and there agreement performs an act to his detriment, and the act is
Part
be evidence of that agreement “unequivocally and in its own nature... referable to some
Performance
2. This will usually be an express such agreement as that alleged. That is, it could be done with
communication between the parties no other view than to perform such an agreement”.
(Maddison v Alderson (1883))

Acts of  The plaintiff must have performed acts on Mason v Clarke

Performance the faith of that agreement that were either
o Required by the contract; or - Oral agreement to grant profit a pendre
o Permitted by the contract or
encouraged by the defendant Performance of the oral agreement exclusively referable to
 - Identify the acts, usually: the oral agreement.
o ▪ Payment of moneys
o ▪ Moving into the land with the
cognizance of the other party (i.e.
defendant)
o ▪ Paying off mortgage (Regent)
o ▪ Effecting repairs (Regent)
o ▪ Accepting/endorsing bills for
bills which provided funds to a
mortgagor (ANZ)
 After identifying the acts, ask the question:
are these identifiable acts unequivocally
referable to the nature of the purported oral
contract?

Unequivocal The acts performed (and identified above) must point Pipikos
Referability unequivocally to the existence of an agreement of
the kind alleged (McBride). That is, the acts are Facts: The respondent and her then-husband initially
unequivocally and “in their own nature” referable to purchased the "Clark Road property," with the respondent as
some such agreement as that alleged (Maddison). the sole registered owner. Later, they, along with the
There must not be any reasonable alternative appellant (her brother) and his wife, jointly acquired a
explanation (Oglivie) second property through combined financing. Subsequently,
the couples jointly purchased a third property, the "Penfield
Recently reaffirmed: Road property," partly funded by a bank loan, with each
The requirement for unequivocal referability is couple holding a half share.
essential to Lord Selborne's thesis that the court is not The appellant claims an agreement with the respondent to
enforcing the contract – that would be contrary to the acquire her share in the Clark Road property, financed by
Statute of Frauds – but the equities generated by its him funding the respondent's share in the Penfield Road
partial performance (Pipikos [52]) property. However, the only evidence of this agreement is a
handwritten note, which does not comply with the Law of
Essay? Property Act 1936 (SA). The appellant argues part
For over a century, Lord Selborne's approach has performance as a defense.
successfully reconciled the conflict between older
cases and the Statute of Frauds. This reconciliation has
 balanced parliamentary emphasis on certainty in land
dealings with the court's focus on preventing Held: After review of the authorities, the Court unanimously
unconscionable conduct. To separate the doctrine's rejected the appellants argument and affirmed the
practical application from this reconciliation, including requirement of unequivocal referability. In this case, the
the unequivocal referability requirement, would argue bargain did not meet that requirement (which the appellant
for abolishing the doctrine as it would directly had conceded.
undermine the Statute of Frauds.
The payment of money must always be coupled with
another act to be regarded as unequivocally referable
(Regent, Steadman)

Taking possession of the property coupled with the

expenditure of money on that property will always be
sufficient evidence (per Gibbs J - Regent).
 - Note: The acts related to the general nature of
the oral agreement alleged

Going into possession is usually seen as enough (Mason v

Clarke and Regent) - but look to circumstances for
clarification

Deposit of title deeds coupled with payment of money is

enough for an equitable mortgage (Maddison)

In Mason v Clarke UK: an oral agreement to grant a right to

snare and take away rabbits (a profit a prendre) was held to
be partly performed by setting the snares and removing
rabbits.

Availability of Part performance does not mean enforcing the entire oral contract; it merely allows the court to consider the oral
specific agreement based on the evidence of partial performance without granting specific performance (Mason v Clarke)
performance
Unconscionabl It would be unconscionable for the person to deny the In ANZ - Hill J argues that the bank had altered its position
e if denied beneficial interest, or that there was an agreement of on the faith of the oral agreement and that it would be fraud
the type alleged on the borrower to set up the legal invalidity of the oral
contract on the faith of which he induced the bank to act and
Prima facie, this is made out if the unequivocally expend its money.
referable conduct (and detriment to that effect) are
made out

Result Per Lord Selborne in Maddison v Alderson: The equities arising from the acts of part performance will be enforced.
 The ultimate result, in the context of real property to essentially give effect to the oral agreement through the mechanism
of a constructive trust - the result is a specifically enforceable contract that gives rise to a constructive trust.
 The constructive trust is institutional and arises from the date of detriment

Is it as strong as legal right?

No - 54A Contracts for sale etc of land to be in writing
(1) No action or proceedings may be brought upon any contract for the sale or other disposition of land or any interest in
land, unless the agreement upon which such action or proceedings is brought, or some memorandum or note thereof, is in
writing, and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be
charged.
 Equitable Estoppel
Non-contractual promises and representations that have been relied upon.

Topic Issue Tests Case

Proprietary Up until mid-19th century, the Court of Chancery Not a full consensus on tests, but from Brennan J in Walton Stores and Priestly JA
Estoppel + would order a representor to "make good" a in Silovi, comes down to 7 elements
Promissory representation as to future conduct that was
Estoppel intended to and did in effect induce reliance. 1. Assumption
2. Inducement
This changed in the rule in Jorden v Money, which 3. Detrimental reliance
was applied strictly by the common law courts and 4. Knowledge of reliance or intention to induce reliance
continues to limit the scope at common law to 5. Departure or threatened departure
representations or assumptions of fact. In 6. Reasonableness
equity there are 2 exceptions to this rule: 7. Unconscionable conduct
• Proprietary estoppel: owner of
land led relying party to assume Waltons Stores v Maher (1988) 164 CLR 387 – P negotiated lease from D that
they would be granted an required D to demolish building, D received copy of lease, P told D they would be
interest in that land. Relying told of any rejection next day, nothing heard, lease signed by D & returned, P
party must act to detriment. aware of demolition commencement by D, P informed D of no intent to proceed.
• Promissory estoppel: one party Court treated P as if they had signed the lease. Assumption of future conduct =
to a contract led a second application of equitable estoppel.
party to believe that certain
contractual rights would not be HCA recognised unity between proprietary & promissory estoppel under equitable
enforced. Second party must estoppel, principle that equity will come to the relief of a plaintiff who has acted
have changed position relying to their detriment on basis of assumption induced by defendant’s conduct.
upon assumption.

1.Assumption The relying party must have assumed that a particular legal relationship existed
or would exist between the relying party and the inducing party (Walton stores), o Waltons Stores v Maher (1988) – Brennan J:
and that the inducing party would not be free to withdraw from the relationship. necessary for plaintiff to prove they assumed a
particular legal relationship existed or would exist
with the defendant (suggests a legal relationship
Equitable estoppel must arise from the assumption that the representor will act a context must exist).
particular way in the future.
o Settlement Group v Purcell Partners – held: lack of
NOT LEGAL: potential for a legal relationship to ever exist denied
Acquiescence can also create representation, such as allowing another to use of equitable estoppel.
expend money on
the land, which created an expectation that there was a right to continue o Mobil v Wellcome (1998) 81 FCR 475 – held:
living (Inwards). necessary that defendant created/encouraged
- Estoppel used as a sword assumption that a legal relationship or interest would
arise.
Contradicted by Je Maintiendrai v Quaglia
- Estoppel used as a shield
o Austotel Pty Ltd v Franklins Selfserve Pty Ltd –
Outside of proprietary estoppel context – it is a controversial restriction and some Priestly JA: observed equitable estoppel could
cases argue that it is not necessary operate in relation to assumption that a contract will
o This is illustrated in W v G which does not involve a legal relationship or the come into existence, or a promise be performed, or an
grant of an interest in land interest be granted.

2.Inducement The assumption of the relying party must have been • Assumption must have been induced by conduct of the representor.
induced by the representor. - Waltons Stores v Maher (1988) – implied promise to complete due to no
rejection.
Estoppel can only arise from a clear or unequivocal o Where assumption is induced by silence it may be necessary to
promise or representation made by the representor. show representor intended, was aware of, or reasonably
expected reliance.
• Question of requirement of unequivocal promise or
representation required.
o Only reasonable assumption in Walton Stores v Maher.
Topic Issue Tests/case
3.Detrimental The relying party must have acted on the Two types of loss:
Reliance assumption in such a way that they will suffer  Expectation loss = loss of benefit relying party assumed to have or
detriment if the representor is allowed to depart expected.
from the assumption.  Reliance loss = suffered due to the relying party’s reliance on an
be material, significant or substantial. assumption.
Can be Expenditure, time, energy, inactivity (loss
of opportunity). Waltons Stores v Maher: equity will aid a plaintiff who has acted to their
detriment on the basis of an assumption induced by the defendant's conduct.
Reliance is a factual inquiry (Sidhu) - the expectations loss was the rent they expected to receive. The reliance
loss was the wasted expenditure in demolition.

Je Maintiendra Pty Ltd v Quaglia: detriment must be assessed at the time the
representor tries to depart from the assumption.

Inwards v Baker – Baker’s father invited Baker to build a bungalow on father’s

land. Son lived in bungalow under the understanding that he could live in the house
as long as he pleased. But when father died, he left property to Inwards as he never
made promises to his son.
 Held: son had a proprietary right + had a license to occupy for as long
as he desired (life estate)
 Baker spent money in the expectation of being allowed to stay there

WvG
Creation or encouragement of an assumption that defendant would act with
plaintiff as parents of children and would assist and contribute with the raising
of children constitutes detrimental reliance

4.Knowledge of Relevant to unconscionable conduct When an assumption is induced by silence, it may be necessary to show that the
reliance or inducing party either intended reliance or knew of the acts of reliance and refrained
intention to The inducing party knew that the relying party was from correcting or warning the relying party. This was a specific requirement from
induce reliance acting on the assumption or intended him or her to Brennan J.
do so.
In other cases, it has been sufficient that the inducing party “ought to have known”
that the relying party would act on the assumption.( New Zealand Pelt Export
Company Ltd) It is likely that constructive knowledge will usually be sufficient,
except in the case of inducement by silence, where actual knowledge or intent may
be required to establish unconscionability.

5. Departure or The relying party has nothing to complain about Estoppel cannot arise until departure/threatened departure from an assumption
threatened unless the representor tries to breach the promise or relied upon.
departure deny the truth of the representation.
Some argue estoppel comes into effect once assumption induced & reasonably
The inducing party has failed to avoid the relied upon.
detriment whether by fulfilling the assumption or (Walton stores)
expectation or otherwise. It is the inducing partys
departure or threatened departure from the
assumption which is said to constitute the
unconscionable conduct.

6.Reasonablene • Concerned with whether relying party is deserving of protection.

ss o Whether relying party acted reasonably in adopting assumption.
o Whether relying party acted reasonably in taking detrimental action. (Walton stores)

W v G, not required, but considered in many high court cases

7. The representor's departure from the relevant [T]he better solution of the problem is reached by identifying the unconscionable
Unconscionable assumption must be unconscionable. conduct which gives rise to the equity as the leaving of another to suffer detriment
conduct occasioned by the conduct of the party against whom the equity is raised.
Consider:
 The nature of the inducement – ie ie the The avoidance of this detriment and the satisfaction of the equity calls for the
 role the representor took in creating the enforcement of a promise only as a means of avoiding the detriment and only to
assumption the extent necessary to achieve that object.
 The reasonableness of the relying party’s
actions (Walton stores) Brennan J
 The representors knowledge of the
detrimental reliance Maybe not unconscionable if the claimant has only been induced to make a
relatively small and readily quantifiable monetary outlay on faith of the appellant’s
 And the extent of detrimental reliance. assurances. Sufficient to reimburse claimant for outlay (Sidhu)
Unconscionability is seen as “the underlying
principle informing the elements of estoppel, rather
Austotel v Franklins
than a discrete ingredient which is additional to
o Equitable estoppel is less likely to operate in purely commercial transactions:
those elements”.
both parties are commercial entities o Commercial decision = not concerned with
equity or fairness (PROFIT)no unconscionable conduct

Remedy If Estoppel is established:

• Giving effect to the induced assumption (expectation approach) – exact usually
• Reversing the detriment suffered (minimum equity approach) – equivalent money

Importantly, promissory estoppel remains purely defensive

Ashton v Pratt:
Ashton provided paid escort services to Richard Pratt which ended when Ashton married a third party in 1997. Following the breakdown,
contact resumed and in November 2003, Ashton contended that Pratt promised if she became his mistress that he would establish a trust of
$2.5 million for each of her 2 children and pay her an allowance of $500 000, $36 000 p.a. for rental assistance and $30 000 for travel –
since arrangement was ‘social’ it was not bounded

Found: The court found two main obstacles to Ms. Ashton's claim based on equitable estoppel. First, there's a legal distinction between
promissory and proprietary estoppel, suggesting that promissory estoppel typically acts as a defense against the enforcement of legal
rights, while proprietary estoppel can create obligations. However, conflicting opinions exist on this matter. Second, even if promissory
estoppel could create obligations, there's doubt about its application to a situation where a promisor is required to adhere to an obligation
arising from an assumed contract that is void due to uncertainty or incompleteness. - SHIELD

Additionally, the court clarified that, in cases of equitable estoppel, there is no strict requirement to tailor the remedy to the minimum
necessary to remove the detriment. Instead, the court may enforce a reasonable expectation created or encouraged by the party bound.
However, relief will be limited if enforcing the expectation would be disproportionately unfair in relation to the suffered detriment. This
limitation is grounded in the principle of good conscience: does not require holding the promisor to their promise. – flexible, discretionary

1.Expectation relief Prima facie rewarded – can either be

1. Equitable compensation (to restore the plaintiff to the position
they would be if the expectation was fulfilled); or
2. Proprietary interest or a lesser interest (e.g. lien in Giumelli)
(satisfies the broad detriment)

Lord Kingsdown’s principle

Court should, prima facie, enforce a reasonable expectation which the party bound
created or encouraged
BUT – proportionality principle Giumelli
- If true, reliance based relief should be If Prima facie solution is inequitably harsh, and would exceed what could be
enacted justified by the requirements of conscientious conduct and would be unjust to the
estopped party’, a solution considering all parties should be adopted
There is no positive requirement for a plaintiff to (proportionality principle)
prove that the relief sought is proportionate. It is a
negative principle that the enforcement must not be DELAFORCE
disproportionate (Delaforce)
Relief may be moulded to recognise practical considerations such as the need for a
Proportionality is considerably important, but is not clean break. (social consideration)
a necessary constitutive element of satisfying a
cause of action. (Delaforce) The Court must also take into account the impact of its orders on third parties and
any hardship or injustice they would suffer.

THIS MAY LEAD TO Relief may be refused or reduced if the plaintiff’s equity has been diminished by
later events.

Subsequent events may also enlarge the plaintiff’s equity.

2.Reliance based relief Relief granted in order to compensate the plaintiff for the damages incurred
 on reliance of the expectation
- the ‘minimum equity’ to relieve the detriment

Social considerations

Innocent third parties - Giumelli - Court exercised discretion and ordered mother
pay equitable compensation and granted an equitable lien over the house, taking
into consideration the brother moved in and made improvements over 7 years.

Sidhu, considered it’d be unfair for the wife to be impacted by prima facie

Agency

Step Test
Define An agent is a person authorized to create or affect legal rights and duties between a principal and third parties.
(Petersen v Moloneu)
- S 124 Corporations Act provides that a company has a legal capacity as a natural eprson

Determine
Authority Was A the agent of P for this act” not “was A the agent of P?” Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52; Beazley v Seed
& Grain Sales Moree Pty Ltd (1988) 4 BPR 9529.
- Must relate to an act
- Principal must have legal capacity to perform the act authorised to the agent
- Agent must have authority for this act–Peterson v Moloney
Establish Understand how the agent-principal relationship arose. (Toll (FGCT) Pty Ltd v Alphapham)
relationship
Determine the  Actual Express Authority:
type of authority  Directly given, oral or written.
 Actual Implied Authority:
 The consent given by the principal for the agent to perform certain acts is inferred from the relationship between or
conduct of the parties, rather than proven through express words.
 Ostensible Authority:
 Induced assumption by a third party based on representations made by the principal.
Precedent: Crabtree

HIERACHY
Actual express>ostensible>implied

Actual express - Identify how the authority was given, through oral conversation or contract
- Determine if it related to the act which was actually done (Beazly, Alphapham)
Actual implied Note: Try not to rely on implied as the threshold is very high
Identify the root of the implication
- Incidental authority
o Express Power
- Usual authority
o Objective standard, is the authority attached to a particular position or title
- Reasonable business practice/customary authority
o High threshold, custom must be uniform and notorious throughout the identified market pr region
- History of dealings
o If parties have conducted themselves on a regular and uniform basis that demonstrates a particular set of repeated
relationships which authority can be inferred from

If actual express and actual implied contradict, express takes precedent

- Any authority implied from an actual authority must not be inconsistent with the substantial character of the agency – marriott v
general
o Implied authority must not conflict with any express authority

Ostensible Extension of estoppel

Someone is inducing an assumption to another, usually principal inducing an assumption in the third party, that the agent is able to bind
the principal, if third party incurs a detriment due to this, person who induced the assumption (principal) will be bound

Elements:
 1. A representation by the principal to a third party that the agent has the principal's authority to do a certain act.
o Must be made by a person(s) who had actual authority to manage the business of the company (cannot be made by
people who only have apparent authority (Crabtree-Vickers)
2. Reliance upon the representation made by the principal as to the agent.
3. Detrimental reliance by third party as a consequence of the representation.

If ostensible authority and actual express authority contradict, ostensible takes precedent
- principal has, with some precision, defined with the agent the extent of that which the agent has authority to do… This will not,
however, stand in the way of ostensible authority – International paper co
- If an agent has been placed by their principal in a position where their ostensible authority exceeds their real authority, the
principal is not entitled to be relieved… merely upon the grounds that they had previously instructed their agent not to enter into
a contract – Bowman v beacon

Crabtree
The person who creates ostensible authority must be a person who has actual express, or implied, authority. The person inducing the
assumption in the third party must haveractual express or implied authority, if they only have ostensible authority, it cannot lie. The person
inducing the assumption must have the actual power.

- Concerned the signing of an order by Peter McWilliam. A family company and the executives were a father and two sons. The
two sons were Bruche McWilliam and Peter McWilliam. Peter McWilliam had previously been a director of CV but had
resigned when he became bankrupt. He still worked full time in the business and he had been given the job of investigating the
purchase of a printing machine. Even though he had been given the job of investigating this purchase, he had no actual
authority on behalf of the company to enter into the transaction. The company was trying to get themselves out of this contract
saying it had been made without its authority

It must be the principal that does the holding out. The principal in this case is the company/Board of Directors acting in concert, or, if for
example, one of the Directors has the express authority to perform the action they could do it themselves, or, they could in fact make a
representation or hold out another agent (Peter McWilliam) as having authority to perform the action.