LAW5213 Assignment 1: Property Rights and Opal Possession for Kelly

This case study analyzes a property dispute in Groomsville, Queensland, involving Kelly, the property owner, and various parties including tenants, a construction company, and an opal discovery. The assignment delves into the legal rights concerning the possession of opals found during property renovations. The analysis covers the rights of tenants (Nicky and Fisho’s Fishing & Lure Shop Pty Ltd), the construction worker (Paul), and the property owner (Kelly), referencing relevant Queensland property law, tenancy agreements, and lease agreements. It examines the application of the Torrens system, residential and commercial tenancy laws, and the implications of unregistered leases. The study also addresses the roles of solicitors representing the involved parties and the legal principles governing property ownership and possession in the context of found valuables. The document explores the importance of written agreements and the impact of the Real Property Act 1900 (NSW) and other relevant legislation and case law.

Assignment 1
Name:
Tutor’s Name:
University:
Date:

Table of Contents
Question A.......................................................................................................................................3
Overview......................................................................................................................................3
Solicitors Claim...........................................................................................................................4
Advice to Kelly For the possession of opals...............................................................................9
Summary....................................................................................................................................12
Question B.....................................................................................................................................13
Introduction................................................................................................................................13
Definition of ‘Property’.............................................................................................................13
Compare and Contrast of the Definition of Property in Respect to Domestic and International
Legislation.................................................................................................................................14
Common Law Fundamental Concepts with the Chosen Law...................................................15
Major Differences or Issues.......................................................................................................17
Conclusion.................................................................................................................................19
Bibliography..................................................................................................................................20
2

Question A
Overview
As per the case, Kelly is the owner of the real property in the town of Queensland in Groomville.
The property is being repaired and constructed but the property has one commercial office and a
granny flat which is for the residential purpose. The commercial property has been leased by the
business named Fisho’s Bait & Lure Shop Pty Ltd on a written basis for the period of three
years. On the other hand, the residential property is let by Nicky who is the cousin of Kelly.
Nicky is a tenant but has no written agreement for tenancy. Kelly being the owner of the real
property decides to renovate the property however it is noted that during the process of
renovation Fishing shop would continue to trade its business from the land. The fishing shop will
not have access to a few sites of the construction site which will be mentioned as do not enter.
Nicky, on the other hand, has moved out of the property because of the health and safety
concerns.
It is noted that during the process of construction Paul who is the workman employed by the
“Easy Build Constructions Pty Ltd” found a black opal which is highly valued. Paul found a total
of four opals and two were discovered from the fishing shop. On the other hand, the last two
opals were found by Paul from Nicky’s room. All the four opals were snatched by Kelly from
Paul and workers working in the site were dismissed. The case is about advising Kelly, Nicky,
Paul, Fisho’s Fishing & Lure Shop Pty Ltd and Easy Build Constructions Pty regarding the legal
possession of the opals respectively.
3

Solicitors Claim
Nicky is a tenant and is the cousin of Kelly but the tenancy is not supported with any written
agreement. Nicky cannot claim the opal as she is not a legal tenant of Kelly because no written
agreement has been prepared. The owner thus has no obligation towards the tenant and at the
same time tenant has no rights towards the property. In this case scenario, the Torrens system of
New South Wales is to be considered as it gives title of the land only by registration. The system
is effective as it ensures ownership towards the property which is guarded not only through
physical possession of certificate. The Torrens title is based upon the Real Property Act 1900 in
order to reduce fraud1. The claim by Nicky is not effective as she is legally not part of tenant
rights along with obligations. Nicky does not have any Residential Tenancy Agreement which
has clear understanding of the changing consideration. The law are governed by the Residential
Tenancies Act 1995 which helps in to determine the rights and obligations. Nicky has no rights
over the possession of property as the tenancy agreement is present. The Residential Tenancy
Agreement is a binding contract on legal basis which leads to success. As per the legal
consideration, it is important to note that during tenancy it is vital to inform the tenant regarding
the entry of other people on the premises2. Similar case was faced of UK Court of Chancery case
Pilcher v Rawlins (1872). The tenant usually has the right to determine the accessibility of
people in the room even of the owner. However, in this case, Nicky is not liable for such
consideration as there is no tenancy agreement. Another reason that is to be determined is that
Nicky was stated by Kelly about renovation and construction thus Nicky cannot claim for the
opal even though it was attained from the premises where she was residing. The solicitors acting
1 Reisa, Information for Tenants (20 April 2019) <https://www.reisa.com.au/publicinfo/renting/information-for-
tenants>
2 Ashby, Rod and Ashby, Duncan. Successful Land Leasing in Australia. Rural Industries Research and
Development Corporation, 2011.
4

for Nicky states that she should have the right over the opal as it was attained from her property
as she was there as a tenant. The claim can be mitigated by Kelly as no legal agreement was
considered.
Paul, as mentioned, was the worker who was working for the Easy Build construction Pty Ltd.
He was the person who surprisingly found the four opals while working. The solicitors for Paul
state that as Kelly, Fish shop and Nicky were unaware of the opal hence Paul has the right to
possession. He found the opals which he attained while working for the renovation. As per the
legal aspects, it is important to state that being the worker Paul is liable for the payments that are
to be paid by the company. He is not a part of the property and is neither a tenant nor leaser but
is working for renovation in the property of Kelly. He is appointed by Easy Building Ltd for the
purpose of repairing and maintenance, therefore, anything that is found in the owner’s property
he is not liable to attain3. It is claimed by the solicitors that owner was not aware of the valuables
that Paul has attained and hence is liable for the attainment of the same. It is noted that Paul is
not liable for the claim as he is not associated with the property and is working for the third
party. As per the law, he is only liable for the payment by the company and might attain reward
by Kelly if she intends to reward for the opal he found. The solicitor acting for Paul is asking for
the opal as is claimed that being the first person to find the valuables he has the right to attain the
same.
Concerning the aspects of Fisho’s Fishing & Lure Shop Pty Ltd, it is noted that the owner's
property has been leased through a written agreement. The lease is a grant which is offered by
the owner to the lessee for the land. As per the Residential Tenancy agreement the tenants are
3 Aitken Whyte Lawyers Pty Ltd ACN, Leases Commercial and Retail (20 April 2019) <
http://www.awbrisbanelawyers.com.au/powers-of-the-lessor-enter-the-premises-commercial-leases-brisbane-
lawyers-solicitors.html >
5

able to take the possession of the stated property for a specified period as mentioned. The rights
and responsibilities are mentioned. The rental bond is created to ensure the security and is sent to
the owner to avoid breaches. In this case, Fisho’s has the possession of the property on the basis
of the Residential Tenancy Agreement. It is vital to inspect the condition of the premises is of
concern. The alterations in the premises were done by Kelly without written concern but it was
mentioned in the agreement about the emergency. In this case, the lease is commercial in nature
as space has been given for trading. It is noted that commercial lease is regulated to a lesser
extent and must be in writing4. The leased property was in writing so that the property is
enforceable for efficiency. The fraud is being committed by the registered interest holder on the
property of the owner. For instance the case of Efstratiou, Glantschnig, and Petrovic v
Glantschnig, is about the fraud leading to the title of the property. The lease by Kelly and
Fisho’s shop was done in page document and was signed. The letter of intent is a document
which is stated as pre-lease and in this case, the lease was dated for a period of three years. The
registration of the lease is not mandatory but it offers protection to tenants along with the
landlord5. Fisho’s can claim for the compensation for the damages that has been attained due to
the actionable wrong. The case of 12(1) Halsbury's Laws of England, Damages (4th ed. Reissue),
§§ 815, p. 271. The lease is not registered by Fisho as it is not for the period of more than three
years. As per the Queensland law, it requires registration if it is more than 3 years. Registration
increases the rights to protection and helps to attain better diligence. As per the Queensland law
when a party enters the lease it attains exclusive rights upon the property unless any breach is
done. For the protection of the property, registration is being considered an important factor.
4 Academike, Basis of Privity of Contract and Consideration.( 20 April 2019)
<https://www.lawctopus.com/academike/basis-privity-contract-consideration/>
5 Rose Lawyers, What are the legal obligations of a Landlord in a Commercial Lease? (20 April 2019)
<https://roselaw.com.au/resources/what-are-the-legal-obligations-of-a-landlord-in-a-commercial-lease>
6

There are several benefits which are attained in the long term lease if it is registered. The case of
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28 is based upon the
residential Tenancies Act6. The case law was about the termination of the tenancy acts which was
facing issues in favouring tribunal discretion. Registration increases the effectiveness as tenant
name would be written upon the land. International Conventions is about treaties and agreement
that ate signed amid countries on the basis of the contract between the states. There are several
laws that are part of the force in Australia which includes Real Property Act 1925 (ACT); Real
Property Act 1900 (NSW); Real Property Act 1886 (NT); Land Title Act 1994 (Qld); Real
Property Act 1886 (SA); Land Titles Act 1980 (Tas); Transfer of Land Act 1958 (Vic); Transfer
of Land Act 1893 (WA); Land Transfer Act 1952 (NZ).
It is noted that leasing a premise is a binding contract which offers certain rights upon the
property. The lease that is long term offers stability and offers rights to the occupier leading to
protection. The leased property offers the tenant the rights of possession during the tenure of the
agreement. The property is legal of the tenant and not the owner to an extent as it is bind by the
agreement7. The power of the lessor is depicted under 107 properties Law Act 1974 which states
that the property belongs to the tenant. The role of the agreement is huge because the property
needs to be written so that the authentication is effective and it builds support. The premises by
Fisho’s are owned by Kelly and as the land is legally binding the property rights are also given to
Fisho are based upon certain terms. A lease agreement is signed by the two for a period of three
years. Leases are of various types it includes short term renting along with long term leasing. The
6 Griggs, Lynden. The Doctrinal Coherence of the Torrens System of Land Registration in
Australia: Evolution or Revolution? Faculty of Law 2016.
7 The State of Queensland, Property Law Act 1974. ( 20 April 2019)
<https://www.legislation.qld.gov.au/view/html/inforce/current/act-1974-076#pt.8-div.1>
7

long term leasing is effective as it helps the business to establish its growth. In this case, Fisho is
claiming that the opal found in the leased property should be part of the Fisho wealth. The
premises were being renovated therefore the third party was allowed to enter the leased property.
Anything that is found in the leased property is legally part of the Fisho’s even though the valued
substances are found in the absence of the leaseholder. ‘In Australia, the land can be leased to
individuals and corporations. In this case scenario, the land is leased to the corporation for its
effective trading and growth8. The underlying title holder continues to attain the land title in
Australia. In this context, it is worthy to note that land in Queensland is maximum leased by the
state for several purposes. The lands are leased for commercial shops, pastoral purposes and
more. The leaseholder has temporary rights over the property and they pay some amount for the
property as rent. Therefore the tenancy law is also applicable. As the property is leased by the
Fisho’s they have exclusive possession of the property in terms of rent payment. The lease
between Fisho and Kelly is written and is marked under the lease agreement with a few
important elements. The essential elements that are written under the lease agreement include:
 The land which is to be leased
 The agreement terms are written including several factors
 Rent payable and the rent review
 Obligations by the landowners are mentioned
 The obligation of the lessee are mentioned
 The dispute resolution process is mentioned in the written agreement
8 1The State of Queensland, Leasing disputes, (20 April 2019)
<https://www.business.qld.gov.au/starting-business/premises-location/leasing/disputes>
8

 Several other factors stating special conditions on the aspects of leasing9
However, there are several issues that are faced due to leasing and increase the risk of tenant and
owner. The standard principle of the leasehold property is that agreement is ensured and
developed to ensure transparency in the process along with maintenance of the legal factors.
Providing value for money is another factor that increases the level of risks and augments
strategic direction. Landlord Kelly needs to minimise the risk by protecting the resources from
loss and damage of property. The landlord protection insurance would be beneficial for Kelly to
attain proper rights over the property and its belongings. The case is about ownership and
principle that prevents deprivation of the property. The Indefeasibility recognition impacting the
estates and interest are the laws that are affecting the landlord and tenant. The case of Breskvar v
Wall (1971) 126 CLR 376 states about the estate interest and deferred indefeasibility.
From the understanding attained as per the case, it is noted that Fisho’s Fishing under the lease
agreement is trying to use its power under the Queensland law to attain the custody of the opals.
The agreement of lease states that the leaseholder has the power over the property. However, it is
advised to Kelly that even though the property is leased through legal agreements it is vital to
note that Kelly being the owner has rights over the property10. Therefore the solicitors asking for
opal for Fisho’s Fishing can be countered by Kelly on the basis of tenancy law and leasing
property disputes.
Another solicitor acting for Easy Build Constructions Pty Ltd claimed for the possession of the
opals that was found by Paul. Paul the worker was from the Easy Build Constructions, therefore,
9 Thynne & Macartney, Legal guide for primary producers. 2013.
10 Queensland Law Society, A legal guide to business leases (20 April
2019) <https://www.qls.com.au/For_the_community/Legal_brochures/A_legal_guide_to_business_leases>
9

they are claiming that as the valued opals were found by their worker they are liable for the
possession. The builder appointed Paul and pays him for his services so that construction and
renovation can be done in the land by Kelly. The solicitor is claiming the opals as their worker
has found the opals from the property they have been working upon. The builder is stating that as
the land was under their strict surveillance during renovation and neither Fisho’s, Nicky nor
Kelly were present nor were aware of such belonging in that site. The solicitor is claiming for the
opals with regard to the third party rights over the leased property. The third party has no legal
rights on the property for the operation in the property. The company was appointed by Kelly as
he is the owner of the property. The renovation and construction are being done upon the rented
property and the leased property11. During the process of renovation, neither leaseholder nor the
tenants were present. They were just informed about the renovation that would be done. As per
the traditional law, it is stated that third parties have no consideration over the land property.
Furthermore, there is no contract along with consideration of Kelly with the Easy Build
Constructions Pty Ltd. Therefore, on the legal aspects, the builder has no such legal
consideration over the property. It is also revealed and claimed by the company that opal was
found by Paul the worker accident while working for the company. Easy Build Constructions Pty
Ltd have no legal position in this matter as it has no direct relationship with the owner, tenant,
leaseholder and at the same time, no written consideration is made in case of any disputes. Here
the issue is regarding the recognition of the property rights along with coherent framework. A
similar case was witnessed in the case of Mason v Clarke [1955] AC 77812. The case states that
11 Queensland, Body Corporate and Community Management Act 1997 (20 April 2019)
<https://www.legislation.qld.gov.au/view/pdf/2017-07-03/act-1997-028>
12 QUT Law, Property Law Review Issues Paper 2 Property Law Act 1974 (Qld) – Part 8 Leases and Tenancies.
2016
10

there was no proper and sufficient memorandum or written agreement thus affecting the activity
of Mason and its performances.
Advice to Kelly For the possession of opals
From the case scenario, it is noted that Kelly is the owner of the property that has been leased to
Fisho’s fishing and have been rented to Nicky. Kelly is the owner of the property and enjoys
several rights and has obligations towards the tenant and lease. There are several responsibilities
of the landlord over the tenants. The first responsibility of the owner is to manage the property in
an effective manner. There needs to be a proper agreement with the tenant for the safety of the
property. Being the owner of the property it is important that landlord take cares of the property
and manages the rent13. The repairing of the property is to be done by the landlord on a timely
basis. Therefore, as per the legal aspects, Kelly the owner has rights upon the property that is
enjoyed by the tenant. The tenancy agreement states that the tenant will pay for the property he is
staying in but has no authority over the property. The owner has the rights upon the property
even though the tenant is staying on the stated premises by paying rent. The agreement is made
and it is clearly stated about the rights and obligations of the tenant. In this case, Kelly can deny
the claim of Nicky who is the tenant in that property. It is advisable that Kelly can deny the claim
of the opals because Nicky is her cousin and is leaving in the property without any legal
considerations. Nicky legally has no rights on the property and the values that are attained from
her room. Furthermore, Nicky was informed about the renovation, therefore, she left the
premises. In this scenario, it can also be stated that during the repair of the property tenant has no
rights over the property14. Therefore, the claim by Nicky can be ignored as there is no tenancy
agreement amid the two.
13ibid 9
14 ibid 8
11

It is further advisable to Kelly that she has can deny the claims by Paul on legal aspects because
he is the worker and has no legal obligations towards the property. Kelly is in a strong legal
position in this case because he cannot claim the property as it is Kelly’s assets. The property is
of Kelly and Paul was just a worker who was appointed for the purpose of renovation. However,
it is advisable that Kelly can reward Paul as he discovered the valued opal from the property.
Under the legal aspect, Paul has no rights to claim and Kelly is not obligated to pay for the opals.
The Residential tenancies Act 2010 have provision regarding the aspects of renovations and
alterations in the premises which are rental. The consent of tenant and landlord is vital under the
Tribunal section 69. The property is damaged during the process of which is part of the Civil
liability Act 2002. The treaties as per the conventions need to be well bind so that the contract is
effective. The property is of Kelly therefore any private valuables and investment impact the
bilateral treaty. The case of binding nature can be determined from Medellin v. Texas, 552 U.S.
491 (2008) based upon the international convention for the passing legislation.
Fisho’s fishing has the lease for the property as enjoys certain rights over the property. The fact
is that Kelly has leased the property to Fisho’s fishing for commercial purpose. The company is
trading its business and is gaining profits without the interference of Kelly. In this case, the issue
that is faced is regarding the claim from Fisho’s towards the attainment of the valued opals as it
was found from that land. The legal expression to it is that Kelly the owner had leased the
property for the purpose of doing business and it is written under the agreement. The clause
within the agreement stated the use of the land for the purpose of the business. The property is
the asset of Kelly and anything that is attained from the premises is legal of Kelly. The business
premises might have been leased or rented but Kelly is the owner of the property. The law of
Torrens and the convention attains significant importance thus affecting the tenancy. The
12