LLB270 Study Guide - Final Guide: Official Receiver, Time Deposit, Maxims Of Equity
GIFTS AND SALES
GIFTS of CHOSES IN POSSESSION (tangible):
GIFT – DELIVERY WITH DONATIVE INTENT:
oRequires:
INTENTION TO MAKE THE GIFT – usually requires ‘words of present gift’
Must specify the extent of gift & when it is to take effect
INTENTION OF DONEE TO ACCEPT THE GIFT
DELIVERY – required to complete gift
Can be actual or constructive delivery – Rawlinson and Rowland
SALE – beyond the scope of this course
Rowland v Stevenson [2005] NSWSC 325
Facts:
Son was given the boat as a birthday present
Defaulted on payment of fees
oMade up for lost payments
Son attempted to transfer the yacht
Step-father and mother had a relationship breakdown
oStep-father than claimed he did not know of the gift until the night it was given
Step-father organised to moore the boat at the party, gave the son the keys
Step-father took the yacht and sailed away
Finding:
Defined CONSTRUCTIVE DELIVERY
oINTENTION to make the gift was clear
oDELIVERY – occurred when the keys were given
Irrelevant that the keys were handed back to the father so that he could return
it home
Practical rule
Conditional gifts are no less of a gift
Nolan v Nolan [2003] VSC 121
Facts:
Relates to an attempted gift of a chattel in contemplation of death
Donor had passed
Purported assignment of valuable oil paintings
Finding:
‘Nevertheless, in my opinion, the better view, as expressed in the dictum of Corin v
Patton, is that donative intention need not be manifested by words of gift.’
‘…believed he had made a gift to [her] of an absolute interest, which had already
taken effect and which he did not desire to retract, would be capable of manifesting
donative intention.’
‘At any stage until delivery occurs, the donor can validly retract the gift.’
‘The authorities establish that a promise to make a gift, or an expression of a gift by
words of future intention, however clear and unqualified, is not sufficient to establish
a perfect gift.’
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Document Summary
Gift delivery with donative intent: requires: Intention to make the gift usually requires words of present gift". Must specify the extent of gift & when it is to take effect. Can be actual or constructive delivery rawlinson and rowland. Sale beyond the scope of this course. Son was given the boat as a birthday present. Defaulted on payment of fees: made up for lost payments. Step-father and mother had a relationship breakdown: step-father than claimed he did not know of the gift until the night it was given. Step-father organised to moore the boat at the party, gave the son the keys. Step-father took the yacht and sailed away. Defined constructive delivery: intention to make the gift was clear, delivery occurred when the keys were given. Irrelevant that the keys were handed back to the father so that he could return it home. Conditional gifts are no less of a gift.
