Personal Property

Does possession of a good represent an enforceable property right?

Even without ownership possession of a good creates a property right which is enforceable against anyone in the world except those with a better claim.

David enters into an agreement to do six hours work in Jessie’s garden every week. Does David had a right in rem or a right in personam?

right in pesonam → David has a contractual agreement with Jessie. This is a right enforceble against parties to the contract only - here Jessie. That is a right in personam.

If I find an item and take it into my control I am best described as having:

Actual possession; → I have actual possession because I have taken the item into my control. My possessory right may still be less than the ownership right of the true owner.

In National Crime Authority v Flack, the Court found that Mrs Flack could retain the money. This was because:

She had effective control of the premises in which the money was found; → She had effective control of the entire premises in which the money was found. Therefore, she did not need to show that she knew the money was there.

Native title is best classified as:

A right sui generis. → Native title does not really fit into any of our existing taxonomies. In Mabo v State of Queensland (No. 2), the High Court said it was a right sui generis. In other words it is a one of a kind.

A patron has found a four carat diamond ring on a seat in an opera theatre. The patron picks it up and gives it to a staff member. Can the patron claim the ring if the true owner cannot be found?

Yes, because an honest finder has priority to claim lost items, unless the owner of the opera theatre has demonstrated an intention to exercise control and dominion over everything on the premises. → A finder who takes an object into actual possession has a higher right but this can be excluded if the owner of the premises evinces an intention to exercise control and dominion over the property.

What is a chose in action?

An enforceable legal right which can be dealt with as property. → Enforceable legal rights such as contracts or debts or intellectual property which can be transferred between parties are considered property even though intangible. A chose in possession is property which is tangible.

A chattel is:

Tangible personal property; → A chattel is a form of tangible real property. A simple example is a chair.

Which of the following describes the purpose of a lender taking a security interest from a borrower:

To have recourse to property of the company if it defaults;

Which type of transaction involves the owner of property transferring possession of the property to another to sell on its behalf?

Consignment

Which form of company finance involves raising money by selling shares in the company?

Equity financing

Which of the following is not an element of a sale as a common law concept :

An obligation to hold the property for the benefit of others → (the elements are price to be paid, transfer of ownership, and parties competent to contract)

Who is the bailor ?

The owner of property

In a lease transaction who is the owner of the property?

Lessor

A lease of property concerns which of the following:

The granting of exclusive possession and use of property for a term;

Which type of security interest arises by operation of law?

A lien

What is ownership in property law?

The highest recognized legal interest in a thing, encompassing an absolute bundle of rights including management, income, alienation, and destruction.

What is the fundamental difference between joint tenancy and tenancy in common?

Joint tenants share equal unified ownership with rights of survivorship, whereas tenants in common hold distinct undivided shares without rights of survivorship.

According to DKLR Holding, does an absolute legal owner of property hold separate legal and equitable estates?

No, an absolute owner holds a single, entire, unqualified legal interest, not two separate estates.

What tort remedy applies when a defendant wrongfully detains goods after a lawful demand for their return?

Detinue, which allows the court to order the return of the specific goods or their value plus damages.

What tort remedy applies when a defendant intentionally deals with goods in a manner inconsistent with the true owner's possessory rights?

Conversion.

What is delivery in personal property law?

The voluntary transfer of physical or constructive possession from one person to another.

What is constructive delivery (Gamer's Motor Centre)?

A transfer of possession that takes place without any physical change in the actual custody of the goods, such as when a seller acknowledges holding sold goods as bailee for the buyer.

In Samwise Holdings, how did the court interpret "obtains possession" for a PMSI under the PPSA?

"Obtains possession" refers to obtaining possession in the capacity of grantor under the relevant security agreement, not mere initial physical custody.

What constitutes actual possession?

Physical control over a thing combined with the mental intention to exercise exclusive control.

What is custody?

Holding physical control of goods without having legal possession, such as an employee holding a master's coat.

What rule regarding finders' rights was established in Armory v Delamirie and Parker v British Airways Board?

A finder of a lost item acquires possessory rights superior to everyone in the world except the true owner.

Under what condition can an occupier of a building claim superior rights to lost items found on the premises over an honest finder (Parker)?

Only if the occupier manifested an intention to exercise control over the building and everything inside it before the item was found.

What presumption regarding finders' rights applies to private residential premises (NCA v Flack)?

Occupiers of private residential premises are legally presumed to have a manifest intention to exercise control over all items inside the home, even if unaware of their existence.

When does an employee who finds an item acquire finders' rights (Parker)?

An employee who finds an item in the course of employment acquires finders' rights on behalf of their employer, unless the finding was wholly incidental.

What is a chose in possession?

Tangible, moveable, visible personal property of which physical possession can be taken.

What is a chose in action (Torkington v Magee)?

All personal rights of property that are intangible and can only be claimed or enforced by legal action, not by taking physical possession.

What are three defining legal characteristics of a chose in action?

Enforceability by legal action, incorporeal/intangible nature, and conferring a bare legal right in relation to property.

Name four common examples of legal choses in action.

Debts, shares in a company, negotiable instruments (cheques/promissory notes), and insurance policies.

What is an equitable chose in action?

A personal property right historically enforceable only in a court of equity, such as a beneficiary's interest under a trust or a partner's interest in a partnership.

What is the difference between a pure intangible and a documentary intangible?

A pure intangible exists without physical evidence (e.g., copyright or debt), whereas a documentary intangible requires a physical document to prove and transfer the right (e.g., bill of lading or cheque).

How do documentary intangibles interact with the nemo dat rule?

A transferee of a negotiable documentary intangible in good faith and for value acquires title free from prior hidden defects, overriding the nemo dat rule.

What two primary tests determine whether an item of personal property has become a fixture annexed to land?

The degree of annexation and the objective purpose of annexation.

How does the degree of annexation affect the legal presumption regarding fixtures?

If an item is attached to land by more than its own weight, it is presumed to be a fixture; if resting merely by its own weight, it is presumed to be a chattel.

In Agripower Barraba v Blomfield, why were heavy processing items outside the shed held to be fixtures?

They were extensively welded and bolted into steel frames to enable integrated processing operations on the land, and removal would cause substantial damage to the land.

Why were the items inside the shed in Agripower Barraba v Blomfield classified as chattels?

They rested on their own weight, were capable of removal without major damage, and served as production equipment rather than land improvements.

What is real property?

Property consisting of land, soil, and corporeal fixtures annexed to the land, or incorporeal rights over land such as easements.

What is personal property?

All recognised forms of property other than real property, including tangibles (goods) and intangibles (rights).

Are naturally growing crops classified as real or personal property?

Naturally growing crops form part of the real property until harvested, whereas crops produced through human labor/cultivation are treated as personal property.

Are wild animals considered personal property?

No, wild animals are not personal property unless and until they are captured or tamed.

What are chattels real?

Personal property interests relating to land, historically referring to leasehold interests.

Into what two main categories are chattels personal divided?

Choses in possession (tangible property) and choses in action (intangible property).

What three elements define a mortgage at common law (Handevel; Waldron v Bird)?

A promise by the mortgagor to repay debt, a transfer of property to the mortgagee as security, and a proviso that property will be retransferred upon full repayment.

Does a Torrens land mortgage transfer legal title to the lender in Australia?

No, a Torrens mortgage operates as a statutory charge over the land rather than a transfer of title.

What is a chattel mortgage (Palgo Holdings v Gowans)?

A finance agreement where title to personal property/goods passes to the lender as security while the borrower retains physical possession.

What is a pledge (In re Morritt)?

A bailment security interest where a debtor (pledgor) delivers physical possession of personal property to a creditor (pledgee) as security for an obligation.

What special property right does a pledgee hold over pledged goods?

The right to retain possession and sell the goods upon default after giving notice to the pledgor.

How is a legal charge defined?

The appropriation of real or personal property for the discharge of a debt without passing general/special property title or physical possession to the creditor.

What is the difference between a fixed charge and a floating charge?

A fixed charge attaches immediately to specific identified assets restricting their disposition, whereas a floating charge hovers over a shifting class of assets until a triggering event crystallises it.

What is a lien?

A right conferred by law to retain possession of, or have a charge upon, property until certain demands or debts are satisfied.

How does a lien differ from a charge?

A lien arises by operation of law (such as a mechanic's or vendor's lien), whereas a charge arises by agreement between parties.

What is a bond in corporate finance?

A debt instrument where an investor loans money to a company in return for periodic interest and principal repayment at maturity.

What is a discounted security?

A type of bond issued for an upfront sum less than the face value debt promised to be paid at maturity.

What is a convertible note?

A bond or debt instrument that can be exchanged for shares in the issuing company.

What is a debenture?

An unlisted investment bond where security is provided over the assets of the issuing company.

What is a promissory note?

A written negotiable instrument containing an unconditional promise by the maker to pay a specified sum of money to a payee at a fixed/future time or on demand.

What is the key distinction between debt financing and equity financing?

Debt financing involves selling debt instruments that create creditor obligations that must be repaid, whereas equity financing involves selling shares to inject capital without creating a debt repayment obligation.

How does factoring differ from invoice discounting in receivables financing?

In factoring, a company sells its receivables to a third party who collects them, whereas in invoice discounting, the company retains responsibility for collecting the debts.

What is securitisation?

The process of selling a portfolio of income-generating loans (such as mortgages) to a special purpose vehicle that funds the purchase by issuing tradable securities on capital markets.

What defines a sale of goods under s 6(1) of the Sale of Goods Act?

A contract whereby the seller transfers or agrees to transfer property in goods to the buyer for money consideration.

How does a sale differ from an agreement to sell under s 6(3)–(4) of the Sale of Goods Act?

A sale transfers ownership immediately, whereas an agreement to sell transfers ownership at a future time or upon fulfillment of a condition.

What is a lease of personal property?

A contract where the owner (lessor) grants exclusive possession and use of property to a lessee for a set term in exchange for payment.

How does an operating lease differ from a finance lease?

An operating lease is for less than the asset's economic life with the expectation of returning the goods, whereas a finance lease covers most of the asset's useful life and often leads to ownership acquisition.

How does a licence differ from a lease?

A licence is a personal permission to perform an act that would otherwise be unlawful, without granting exclusive possession or a proprietary interest in the property.

What is a consignment transaction?

An arrangement where an owner (consignor) sends goods to a consignee to sell on the owner's behalf to a third party and remit the net proceeds.

What fundamental feature distinguishes a consignment from a bailment?

In a consignment, the express intent is for the goods to be sold to a third party, whereas in a bailment, the intent is for the goods to be returned or dealt with according to instructions.

What is a hire purchase agreement?

A structured purchase where the hirer pays in instalments and property/title passes only upon payment of the final instalment.

What is commercial law?

Commercial law concerns the rights and duties arising from the supply of goods and services across all stages of sale, manufacturing, marketing, and financing.

What is lex mercatoria?

A historical system of custom and law used to determine the rights of commercial traders across Europe.

What are the primary sources of commercial law in Australia?

Common law, equity, statutory legislation, voluntary codes of practice, and international conventions.

According to Yanner v Eaton, what is the legal definition of property?

Property is not a physical thing itself, but a description of a legal relationship with a thing based on a degree of power legally recognized over it.

What are the core indicia of a property right identified in National Provincial Bank v Ainsworth?

A right must be definable, identifiable by third parties, capable of assumption by third parties, and possess a degree of permanence or stability.

How do rights in rem differ from rights in personam?

Rights in rem are proprietary rights over property enforceable against the world at large, whereas rights in personam are personal obligations enforceable only against a specific individual.

Is general information considered property under Australian law?

No, general information is not property unless it is commercially valuable confidential information or protected intellectual property (Farah Constructions).

Are human body parts recognised as personal property at common law?

No, as established in Moore v Regents of the University of California, there is generally no common law property right in human body parts.

According to Yanner v Eaton, does statutory declaration of Crown property in wild animals confer absolute ownership?

No, statutory references to Crown property in wild animals confer a regulatory guardianship rather than full beneficial ownership.