Case Study Analysis: Equitable Interests and Assignment of Property

Running head: CASE STUDY ANANLYSIS
CASE STUDY ANANLYSIS
Name of the Student:
Name of the University:
Author Note:

1CASE STUDY ANANLYSIS
Issues:
In the present case study assignment, the issues involved are what rights being available
to Cyril, Dominique and Linda as acquired by them in Mollie’s property. The second issue is
whether any of those purported transfers can be made binding if they are not already so. In this
analysis, the nature, creation and priority of equitable interests along with assignment of property
in equity have been discussed.
Rules:
Equitable interests usually arises in three ways; firstly in perusal to the intention of the
creator of the interest or the assignor (example: express trusts); secondly by implication of law
(example: resulting trusts) and lastly, by the operation of law (example: constructive trusts).
Equitable interests are mainly three types which are equitable proprietary interests, personal
equities and mere equities. Mere equities in some cases are referred to as only equity to
differentiate from other two branches of it.
No dealings to transfer any estate or interest in any land shall be effective until they are
registered in the manner provided by Section 41 of the Real Property Act (NSW)1. Hence, unless
such transfer is recorded in the register kept under the provisions of the said Act it is not valid.
Similar observation is found in section 23B of the Conveyancing Act (NSW) 1919 which says
that no assurance of land will be valid to pass an interest at law unless it is made in deed2.
1 The Real Property Act 1990 (NSW) s 41.
2 The Conveyancing Act 1999 (NSW) s 23B.

2CASE STUDY ANANLYSIS
In the case of Barry v Haider (1914) 19 CLR 197, Griffith CJ observed that equitable
claims and interests are recognized in the Real Property Act, hence, section 41 while denying
effect to an instrument unless registered, does not touch the rights that are behind it3.
Assignment of property means the immediate transfer of an existing proprietary right,
vested or contingent, from the assignor to the assignee. This definition was given by Windeyer J
in the case of Norman v Federal Commissioner of Taxation [1963] HCA21; 109 CLR 94. Hence,
“assignment” can include any of the following transfer of property like sale of real property, sale
of personal property, intervivos gift and bequest or device of testamentary gift. It is nothing but a
transfer of a right from one person to another. A chose in action is in most cases is deemed to be
a chose of action that allows enforcing of rights.
An assignment incorporates an ‘assignee’ who transfers some or all of his rights under an
agreement of contract to an ‘assignee’. Thus the assignee is entitled to enforce those rights
transferred to him, against the non- assigning party. Assignable contractual rights are choses in
action and are a sub category of personal proprietary right. It can be transferred to a third party
even at law or in equity according to provisions controlling such transfer of rights. All personal
rights of property which can only be claimed or enforced by legal action and not by taking
physical possession are choses in action. It is observed in Torkington v Magee5. According to
Butterworth’s Concise Australian Legal Dictionary, “ an intangible personal property right
recognized and protected by law, which has no existence apart from the recognition given by
law, or which confers no present possession of a tangible object’ is termed as chose in action.
They can be legal as well as equitable. Examples of choses in action include shares, money sums
3 Barry v Haider (1914) 19 CLR 197.
4 Norman v Federal Commissioner of Taxation (1963) HCA21, 109 CLR 9.
5 Torkington v Magee (1902)2KB 427.