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(1) Legal Chose in Action (A) Effected at Law?

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(1) Legal Chose in Action (A) Effected at Law? ASSIGNMENTS (3) Equitable chose in action to sue in tort not assignable, but principle in this case does not preclude the Answer structure I.e. beneficiary’s interest under trust; interest of equitable mortgagee; assignment of the verdict (future property), i.e. the ‘fruits’ of the action – such Legal chose in action or equitable chose in action? partner’s interest in partnership assets; legatee’s right under un-administered an assignment does not give the assignee any right to interfere in the (1) Legal chose in action estate to have will administered (Schulz). proceedings of an action or insist that the action be carried on. (1) Assignments of legal choses in action at law (a) Effected at Law? (i.e. assignable under statute) Either: Legislation requires assignment to be absolute – that is not in part only, or • Must be an absolute assignment – i.e. not part only of a chose in • (1) Clear intention to assign- make an immediate and irrevocable subject to condition, in writing, signed by assignor and with express notice to action or assigned for a limited term transfer and compliance with S 11(1)(c) PLA formality requirement the debtor. • Look to relevant statute requirements: Corps Act, s 199 PLA • No requirement to give notice to obligor – however notice is prudent s 199 Property Law Act • Formalities: (advantage is first to give notice to obligor has priority over other (1.) Any absolute assignment by writing under the hand of the assignor o In writing competing interests – Dearle v Hall), and informs other party as to (not purporting to be by way of charge only) of any debt or other legal thing in o Signed be assignor who is to pay action, of which express notice in writing has been given to the debtor, o Express written notice to the obligor (debtor etc) Or trustee or other person from whom the assignor would have been entitled to § Express written notice must be direct and definite • (2) S 199 PLA – if you substantially comply with requirements the claim such debt or thing in action, is effectual in law (subject to equities statement of the fact, rather than supplying materials assignment will be effected in equity having priority over the right of the assignee) to pass and transfer from the from which the existence of the fact has to be inferred (4) Future property date of such notice— (Showa Shoji v Ocean Life) • Not assignable under statute or in equity since it is not a present (a) the legal right to such debt or thing in action; and o Assigned absolutely and not by way of a ‘charge’ entitlement (b) all legal and other remedies for the same; and § Has to be the whole right, not partial, and can’t be for a • Has consideration passed? (c) the power to give a good discharge for the same without the limited use/can’t be conditional o If yes, equity binds conscience concurrence of the assignor. Consequences of valid assignment s 199(1) PLA – assigned chose in § Assignment takes effect as an agreement to assign • (2.) If the debtor, trustee or other person liable in respect of such debt or action is effective at law. property when it vests in the assignor (Palette Shoes thing in action has notice— Pty Ltd v Krohn; Norman v FCT). (2) If statute applies, but is not complied with: (a) that the assignment is disputed by the assignor or any person claiming o If no, equity does not assist the volunteer – purported (a) Has it been effected in equity? under the assignor; or transaction fails • (i) Formalities not complied with (2)(a) (b) of any other opposing or conflicting claims to such debt or thing in Introduction o Clear intention to assign; AND action; Assignment: an immediate transfer of existing property/proprietary right, o Consideration has passed (Holroyd v Marshall), or by way of the debtor may, if the debtor thinks fit, either call upon the persons making vested or contingent, from the assignor to the assignee (Norman v FCT). gift? claim to the debt or other thing in action to interplead concerning the same, or Chose in action: all personal rights of property, which can only be claimed Ø If gift (voluntary): equity will not complete the gift unless pay the debt or other thing in action into court under and in conformity with or enforced by action (legal action), and not by taking physical possession donor has done everything they alone can do to put it the provisions of the Acts relating to relief of trustees. beyond their recall (s 200 PLA; Corin v Patton – two (Torkington v Magee). Can be legal or equitable. • Shares Carob Industries v Simto: when its (legislative) requirements are fulfilled, step test clarifies rule in Milroy v Lord) the statutory assignment effects a divesting of legal title correlative to the • Money sums due and owing (debts) § (1) whether donor has done all that is transfer of the right, so that if notice has been duly given, the debt or chose in • Rights/benefits under a contract necessary to place vesting of legal title within action no longer belongs to the assignor and he cannot take proceedings to Mortgagor’s equity of redemption control of donee • recover it. § (2) and beyond the recall and intervention of the • Beneficiary’s rights and interests under a trust Showa Shoji Australia v Oceanic Life: no special form of notice is donor • Legatee’s rights under un-administered will/estate (Schultz) necessary, and the notice need only convey the fact that the obligation has Ø I.e. for choses in action assignable under s 199 – must Choses not assignable at law or in equity been transferred to an assignee. But the notice must do so expressly by a be in writing and signed, but notice not required to bind (1.) Purely personal rights (e.g. right to rescind K by purchaser) direct and definite statement of the fact rather than by supplying materials assignor (Norman v FCT). (2.) Obligations – generally (unless parties mutually agree to transfer – from w/ the existence of the fact is to be inferred; and because the notice o Note: obligor still legally bound to A, rights assigned are novation) must be in writing the room for incorporation of surrounding events, even binding between A and B, B can enforce rights by obtaining (3.) Public pay by holder of public office (under most circumstances) direct oral notice, is limited. benefit from A or could sue O jointly with A (4.) Bare rights of action Sale of shares: Corps Act • Includes rights to sue in tort, sue for unliquidated damages for • S 1071A: subdivision applies to shares in company, debentures of (b) Legal chose in action not assignable under statute breach of K, sue in equity company and interests in a registered scheme • Consideration, or by way of gift? • Not assignable for public policy considerations – assignment • S 1070C – share certificate must state name of company, class of o If gift: need a clear intention to assign – to make immediate amounts to maintenance of champerty – incentive to maintain shares and amount unpaid on shares. and irrevocable transfer of present property of the chose in legal actions by a third person with no interest in the COA, just S 1071B(2): instrument of transfer, a company must only register an action receives a part of any verdict upon completion of action • instrument of transfer of securities if a proper instrument of transfer • Requirements Glegg v Bromley: Mrs G was suing Mr B in tort – tried to assign to husband has been delivered to the company, despite anything in its o Not required to be in writing ‘all that the interest sum of money or premises to which she is or may constitution or anything in the deed relating to debentures o Notice not necessary but prudent become entitled under or by virtue of . any verdict compromise or agreement which she may obtain or to which she may become a party in or • Note – if share certificate exists this must be lodged consequent upon the said action [for slander against Bromley]’. Held: rights • S 1072F: (1) a person transferring shares remains the holder until the transfer is registered and the name of the person they are being transferred to is entered into the register of members in respect of the assign the equitable property. Notice to the trustee may be important to bind sever JT by assigning interest – executed 3 docs: memo of transfer to her shares. him to respect the assignment and in order to preserve priorities, but it is not brother subject to mortgage of bank which held CT; trust deed declaring her • (2) the directors not required to register transfer unless the transfer a condition precedent to the operation of the expression of intention as an brother held interest on trust; and a will leaving her estate to her children in and any share certificate have been lodged at the registered office; (ii) assignment. (iii) intending donor for whom property is held on trust may give equal shares. At time of death her transfer to her brother had not been any fee payable on registration of transfer has been paid; and (iii) the his trustee a direction requiring him to hold property upon trust for the registered nor had any steps been taken to have bank produce CT. Held: no directors have been given any future information they reasonable intended donee. legal assignment since transfer not registered, no equitable assignment since require to establish the right of the person transferring the shares to Norman v FCT (summary of rules) no efforts had been made to produce CT.
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