LAWS2012 Lecture 7: LAWS2012 - Chapter 7
1. Assignment of Legal Interests
7.1 Legal Assignment of Land
• Form requirements (Section 2.3)
o Transfer of legal title for old-system land and non-registered Crown land requires a
deed; s 23B Conveyancing Act
o Transfer of Torrens system land requires registered transfer; s 41 Real Property Act
7.1.1 Conveyancing Act: Specific Requirements
• S 38B Deed must be (1) signed by grantor, (2) sealed and (3) attested by a witness not party
to the deed. Deed must then be delivered
o Every instrument expressed to be a deed, and signed, is deemed to be sealed
▪ S 51A(1)(b) Where seal purporting to be the seal of a corporation has been
affixed by persons purporting to be authorized to do so, deed deemed to
have been duly executed
o Physical delivery of deed no longer necessary, constructive delivery is enough
• Agreements/contracts for sale (promise to execute deed or register title in future) or any
other disposition in land including a contract to declare a trust over property:
o S 54A(1) Must be in writing and signed by the person to be charged or a person
lawfully authorised to be enforceable at law
o S 54A(2) Does not affect law relating to part performance (this is equitable anyway)
• Failing to meet requirements = no legal transfer so look to equitable assignment
7.2 Legal Assignment of Legal Choses in Action
7.2.1 Is there a Valid Assignment at Law?
• S 12 Conveyancing Act
a) Absolute assignment (not by way of charge)
b) In writing, under the hand of assignor i.e. signed or otherwise authenticated
c) Subject matter of assignment usually legal chose in action e.g. debts, shares (see
topic 3)
▪ Equitable choses in action e.g. interest in trust, may be assigned; Federal
Commissioner of Taxation v Everett
▪ But this not the only way of assigning equitable choses in action
d) Express notice in writing given to debtor or trustee (person who owes obligation)
o Valid assignment is enough for assignee to sue, but assignment is subject to the
equities
▪ Assignee can only get rights the assignor had, not more (unlike Torrens title)
o Effective from the date of notice
o Includes rights and remedies attached with the chose in action for the same
• Purpose of s 12: Valid assignment = no need for assignee to join assignor (although equity
may allow this regardless)
7.2.2 Chose in Action must be Assignable
• Important consideration in determining assignment as per Equuscorp v Haxton
1. Nature of the right being assigned – must be assignable
2. Language of applicable statute (e.g. s 12 Conveyancing Act)
3. Do the words of the instrument of assignment encompass the particular right?
• What is assignable (see Topic 3)?
o Cannot assign contracts for personal services where identity is material to
performance; Nokes v Doncaster Amalgamated
o Cannot assign bare rights to litigate unless
▪ Right is ancillary to property; Re Kenneth Wright Distributors
▪ Assignee has legitimate commercial interest in assignment; Trendtex Trading
Corp v Credit Suisse
o May assign whole benefit of contract or without some severable right; Pacific Brands
Sport v Underworks
▪ If entire benefit is assigned, it includes all rights and legal remedies as per s
12 of Conveyancing Act
o May contract out of assignability; Linden Gardens v Lenesta
• OBITER – Right to sue in restitution may be assigned where there is a legitimate
commercial interest for assignee
• Even if no valid assignment at law pursuant to s 12, assignee can join assignor and sue in
equity (if possible) – albeit less certain outcome
o Equuscorp v Haxton
▪ Facts: Investors to invest in scheme for tax purposes, borrowed money
from financier (thus incurring a liability which reduces tax payable), lender
would then claw back repayment from profits of scheme
▪ Loan agreements found void due to no prospectus – so money advanced by
investors and lent by lender could not be recovered
▪ Equuscorp had taken assignment of loans
− Couldn’t sue investors for failure to repay on loan contract
− But purported to sue for restitution of the benefit given to
investors, not requiring contract
▪ Investors argued (a) restitution did not arise, (b) if it did rights to sue for
restitution couldn’t be assigned, (c) and even if it could it hadn’t been
validly assigned
▪ Held: Restitution did not arise – statute prohibited extra-contractual
enforcement of loan… case decided on this point
OBITER
▪ Could rights to sue for restitution be assigned?
− Bare rights to sue only if legitimate commercial interest
− Equuscorp clearly has legitimate commercial interest as receiver of
potential repayments
▪ Rights to sue for restitution actually assigned?
− Look at s 12 (Qld equivalent) and terms of assignment:
o “All legal and other remedies”
− French, Keifel, Crennan: narrow approach – law only extended to
cover assignment of legal and other interests “for the same” i.e.
relating to the chose in action conferred
o Restitution claim was a different right not sufficiently
connected with loan
o Conceded possibility if Equuscorp argued agreement for
value to assign rights in equity (see below)
− Gummow, Bell: Terms of assignment broad enough
− Heydon: Difficult to see commercial point of the terms of
assignment if broad approach is not taken
7.3 Equitable Assignment of Legal Interests
• Basically, where legal requirements have not been met
• Difference between declaration of trust (A declares trust = A holds property on trust for B)
vs. equitable assignment:
o Intention of trustee is to retain legal ownership of property on behalf of beneficiary
o Intention of assignor is to dispose of property
o May give rise to a constructive trust – but not an express trust
• All equitable assignments for value are subject to the availability of specific
performance as a remedy
• May be one of four categories:
1. Promise to assign in future, not for value – i.e.
voluntary promise (unenforceable)
▪ Equity will not assist a volunteer
Document Summary
7. 1. 1 conveyancing act: specific requirements: s 38b deed must be (1) signed by grantor, (2) sealed and (3) attested by a witness not party to the deed. 7. 2 legal assignment of legal choses in action. Includes rights and remedies attached with the chose in action for the same: purpose of s 12: valid assignment = no need for assignee to join assignor (although equity may allow this regardless) Corp v credit suisse: may assign whole benefit of contract or without some severable right; pacific brands. If entire benefit is assigned, it includes all rights and legal remedies as per s. Couldn"t sue investors for failure to repay on loan contract. But purported to sue for restitution of the benefit given to investors, not requiring contract. Bare rights to sue only if legitimate commercial interest. Look at s 12 (qld equivalent) and terms of assignment: all legal and other remedies . Gummow, bell: terms of assignment broad enough.
