TRANSFER OF PROPERTY DEFINITION OF CONTRACT OF SALE OF GOODS S.

S. 6 SGA CHANGE IN OWNERSHIP MAY OR MAY NOT ALSO INVOLVE CHANGE IN POSSESSION IMPORTANT TO KNOW POINT OF TRANSFER OF PROPERTY 1. 2. 3. RISK BANKRUPTCY RIGHTS and REMEDIES

Sue for price/sue for non-acceptance Conversion/damages for non-delivery Damages for breach of warranty v. rejection for breach of condition TITLE OF THIRD PARTIES TP1

TRANSFER OF PROPERTY UNASCERTAINED GOODS - S. 21 SALE OF GOODS ACT WHERE there is 1. A CONTRACT FOR THE SALE 2. Of UNASCERTAINED GOODS 3. NO PROPERTY in the goods 4. IS TRANSFERRED TO THE BUYER 5. UNLESS AND UNTIL 6. The GOODS ARE ASCERTAINED Jansz v. GMB Imports Pty Ltd The purported sale of tobacco Unlicensed at the time property passed Agreement to sell only Nothing to sell at time of agreement Agreement could not achieve what was impossible Tp2

TRANSFER OF PROPERTY SPECIFIC OR ASCERTAINED GOODS - S. 22 SALE OF GOODS ACT WHERE there is 1. A CONTRACT FOR THE SALE 2. Of SPECIFIC or 3. ASCERTAINED GOODS 4. The PROPERTY in them is 5. TRANSFERRED to the buyer 6. AT SUCH TIME AS THE PARTIES 7. TO THE CONTRACT 8. INTEND it to be transferred For the purpose of ascertaining the intention. Regard shall be had To the TERMS OF THE CONTRACT THE CONDUCT OF THE PARTIES and THE CIRCUMSTANCES OF THE CASE Tp3

TRANSFER OF PROPERTY RULES FOR ASCERTAINING INTENTION - S. 23 SALE OF GOODS ACT Unless a different intention appears RULES 1. Where unconditional contract Goods in deliverable state Property passes WHEN CONTRACT IS MADE Immaterial that payment, delivery postponed 2. Specific goods But Seller bound to do something To put them in deliverable state Property only passes when DEED DONE AND BUYER HAS NOTICE 3. Specific goods in deliverable state But, seller bound to weigh, measure, test etc To ascertain price. Property does not pass until ACT DONE AND BUYER HAS NOTICE 4. Goods on approval or on sale or return WHEN BUYER SIGNIFIES APPROVAL, ACCEPTANCE, OTHERWISE ADOPTS Or, expiration of fixed or reasonable time for return 5. Unascertained or future goods ..By description. Property passes when GOODS FITTING SAME UNCONDITIONALLY APPROPRIATED TO CONTRACT (Express or implied, before or after appropriation) Either by seller with assent of buyer Or buyer with assent of seller

CASE NOTES RULE 1 CASE Dennant v. Skinner & Collum NOTES Auction sale of car, cheque bounced, buyer sold to innocent buyer, then 4th. Property passed on fall of hammer Nothing in conditions to negative intention. Signed document later, therefore not effective. Immaterial that payment came later Caravan with shower to be installed.Paid. Partly installed, when stolen. Caravan not in deliverable state until delivered with functioning shower Property had not passed, at risk seller Buyer to get his money back with interest Sale of bark at price/ton.to be reweighedfloodprice calculated on summer weight..purchaser would not pay Weighing necessary to determine price Property did not pass, at risk seller In any case, not delivered and count for goods sold and delivered inappropriate. Waller took jewellery "on appro" to sell to actresses, but pawned it instead Action of pledging it to pawnbroker was adoption Property passed to Waller as buyer at that point. Poole was car dealer who let his salesman put 2 cars in yard of his brother over holiday period. Could be sold if prices paid to Poole. One sold and price paid. Despite reminders, no return. Ultimatum passed. Refused to take it back Not returned within a "reasonable" time on particular facts Property passed. Not car was damaged. 140 unascertained bags of rice..paidseller advised 125 bags ready for collection at..and 15 atcollected the 125, left the others for a month by which time they were stolen. Implied assent of buyer Property passed and therefore at buyers risk.

Wallace v. Safeway Caravan Mart

Simmons v. Swift Note too old for SGA

London Jewellers v. Attenborough Poole v. Smiths Car Sales

Pignataro v. Gilroy

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TRANSFER OF PROPERTY MASSEY V. ARLITZ (1923) VLR 132 1. Ms Arlitz agreed to buy 2,000 lbs wool 2. When they arrived, she refused to pay 3. Did not correspond with samples 4. Bill of Lading and draft for payment sent to Australia. 5. Ms. Arlitz refused draft 6. Plaintiffs agent kept other documents preserving right to resell Mann J No property intended to pass prior to delivery No delivery of goods or documents Falls within s 24 of Victorian Sale of Goods Act Tp6

PASSING OF RISK ALLIED MILLS LTD V. GWYDIR VALLEY OILSEEDS (1978) 2 NSWLR 26 1. Gwydir agreed to buy 130 tons of linseed meal 2. Property to pass on making of contract in February 3. Allied deliberately did not deliver 100 tons as planned 4. Destroyed by Fire in March 5. Gwydir had to buy elsewhere for $30/ton more Hutley JA s. 25 Sale of Goods Act Property (and therefore risk) transferred to buyer subject to PROVISO Where Delivery delayed through fault of either buyer or seller, goods are at risk of party in fault as regards any loss which might not have occurred but for such fault. Allied at fault. Allied responsible for loss. Nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party Was seller the bailee? Yes, bailee for reward. Allied cannot take advantage of its own wrong. Bailee liable unless establishes it took reasonable care Allied Had not discharged that burden. Tp7

TRANSFER OF TITLE BY NON-OWNER THIRD PARTY RIGHTS GENERAL RULE - NEMO DAT No one can pass a better title than they themselves have To protect property rights EXCEPTIONS To protect commercial transactions and innocent third parties S. 26 SGA: SALE BY PERSON NOT THE OWNER Confirms nemo dat rule - Subject to exceptions Estoppel Factors Act Special powers of sale S. 27 SGA SALE UNDER VOIDABLE TITLE Sale effect if conducted prior to avoidance S. 28 SGA SELLER OR BUYER IN POSSESSION Floorplan arrangements - Consignment S.5 FACTORS (MERCANTILE AGENTS) ACT 1923 Powers of a Mercantile Agent

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TRANSFER OF TITLE BY NON-OWNER EASTERN DISTRIBUTORS V. GOLDRING (1957) 1 QB 600 1. Murphy owned Bedford 2. Gave documents to Coker, 3. Murphy kept possession Bedford 4. Documents enabled Coker himself as owner 5. Coker sold Bedford to Eastern 6. Murphy sold Bedford to Goldring 6 weeks later English equivalent of s. 26(1) Owner (Murphy) by his conduct precluded from denying Cokers authority to sell? Goldring argued Murphy and Coker would have been estopped. But, he was not! Devlin J Directly within s. 21=NSWSGA s. 26(1) Coker armed with apparent authority Enabled him to represent himself as owner with right to sell Murphy precluded from denying Cokers authority to sell Plaintiffs acquired Murphys title Murphy had no title left to pass to Goldring Ttno2

MAGNUSSEN V. FLANAGAN (1981) 2 NSWLR 92 1. Mrs Flanagan owned Cobra 2. Peter Smythes Classic Care Centre authorised to sell 3. Authority valid for 30 days. 4. 5.5.79 Magnussen bought Cobra from salesman 5. paid two weeks later. 6. Meant to be left in car park. Not done. 7. 23.4.79 Flanagan collected the Cobra 8. 27.4.79 Magnussen received registration certificate in his name 9. Flanagan refused to hand over the car Was sale by Peter Smythe in the ordinary course of business of a mercantile agent? Did Magnussen without notice? Foster J. Nothing unusual about the transaction Admitted mercantile agent At business premises Ordinary hours Ordinary way Car to be handed over to Magnussen Ttno3

TRANSFER OF TITLE BY NON-OWNER THOMAS AUSTRALIA WHOLESALE VEHICLE TRADING CO V. MARAC FINANCE AUSTRALIA (1985) 3 NSWLR 452 1. 2. 3. 4. 5. 6. Barclays owned a Mercedes Leased it to International Sold to Thomas Who sold it to Marac Barclays repossessed Marac sued Thomas Nature of Estoppel? Did owner owe him a duty of care?

McHugh JA s.26 a codification of existing law duty required proper test of duty formulated in Moorgate

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CAR AND UNIVERSAL FINANCE CO V. CALDWELL (1965) 1 QB 525 1. 2. 3. 4. 5. 6. 7. Caldwell agreed to sell Jaguar to Norris Norris paid by cheque Caldwell allowed Norris to take Jaguar Cheque dishonoured Caldwell immediately informed police and AA Norris sold to Motobella, with notice of defect Motobella sold to McGhie to Car VOIDABLE TITLE NEED TO COMMUNICATE RESCISSION?

Sellers LJ Necessary to consider particular circumstances Communication an impossible task for seller He has to establish, clearly and unequivocally

That he terminates the contract Ttno5 Here, on discovering fraud he took all possible steps to regain the goods Even if he could not find rogue nor communicate with him

TRANSFER OF TITLE TO NON-OWNER WORCESTER WORKS FINANCE V. COODEN ENGINEERING CO (1972) 1 QB 210 1. Cooden owned Zephyr 2. Agreed to sell to Griffiths, a motor dealer 3. Griffiths paid by cheque, took delivery, became registered owner 4. Cheque dishonoured 5. Sold to Worcester, who entered HP agreement with Millerick 6. Griffiths retained possession 7. Cooden took it back 8. Griffiths acquisced. 9. Worcester sued Cooden Lord Denning MR s.25=s28 SGA Did Griffiths continue in possession? Does possession mean lawful possession? Was retaking by Cooden delivery or transfer by Griffiths? Did Cooden act in good faith? Without notice of sale to finance company? Yes No, continuity of physical possession enough Yes Yes Yes

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NEWTONS OF WEMBLEY V. WILLIAMS (1965) 1 QB 560 1. Newtons owned Sunbeam 2. Agreed to sell to Andrew 3. Andrew paid by cheque, took delivery and became registered owner 4. Cheque dishonoured 5. Newtons immediately informed police 6. Authorised 2 agents to trace sunbeam. 7. Andrew sold to Biss to Williams 8. Newtons demanded the Sunbeam Sellers LJ English Factors Act ss. 9 and 2 = s.5(1) & (2) F(MA)Act NSW Was Andrew a Mercantile agent? Had Newtons left car in his possession? Did it matter that was unwillingly? Was Andrew acting in ordinary course of business Did Biss act in good faith? Title transferred Ttno7 Yes Yes No Yes Yes

GAMERS MOTOR CENTRE (NEWCASTLE) V. NATWEST WHOLESALE AUSTRALIA (1987) 163 CLR 236 1. Evans was car dealer 2. Natwest agreed to finance on floorplan arrangement 3. Evans agreed to buy 8 cars from Gamer 4. Evans obtained possession, but property not to pass until paid for 5. Natwest provided finance 6. Evans did not pass it on to Gamer 7. Gamer took the cars back. 8. Sued by Natwest Ttno8

s.28(2) SGA actual delivery required? Constructive delivery good enough? Discussion of evolution of statute from common law Delivery interpreted in legal sense to include constructive delivery As did common law Change in character of dealers possession? Dealer took possession, Delivered receipts to Natwest Against which cheques were drawn Dealer then held as bailee for Natwest

RETENTION OF TITLE CLAUSES ASSOCIATED ALLOYS PTY LIMITED V. CAN 001 452 106 Pty Limited 2000 HCA 25 11.5.2000 Associated (seller) sold steel to CAN 001 (buyer) between 1981 and 1996 Around 1987,88, Seller began to issue invoices with retention of title clause printed on reverse with note on front Buyer did not pay Seller full amount. Buyer used steel as well as other steel to make pressure vessels, heat exchangers and columns. Buyer came under administration then liquidation Bank, which held fixed and floating charge appointed receiver and manager. What are the proceeds referred to in the clause? Was trust re future receipts constituted? Interaction between trusts and other contractual relations Note that seller no longer has property because steel can no longer be ascertained because now in product blended Proceeds were book debtscharged the moment they came into existencetrust? OR Registrable charge? NSWSC said yes.void as against liquidator HC said by majority it was a trust of future acquired property not a charge; therefore not void.To treat the clause as one which falls foul of the law is to rewrite the statute Kirby dissented. However, evidence lacking of receipt and therefore failed anyway Appeal dismissed.

Associated Alloys clause Reservation of title It is expressly agreed and declared that the title of the subject goods/product shall not pass to the Buyer until payment in full of the purchase price. The Buyer shall in the meantime take custody of the goods/product and retain them as the fiduciary agent and bailee of the Seller. The Buyer may resell but only as a fiduciary agent of the Seller. Any right to bind the Seller to any liability to any third party by contract or otherwise is however expressly negatived. Any such resale is to be at arms length and on market terms and pending resale or utilization in any manufacturing or construction process, is to be kept separate from its own, properly stored, protected and insured. The Buyer will receive all proceeds whether tangible or intangible, direct or indirect of any dealing with such goods/product in trust for the Seller and will keep such proceeds in a separate account until the liability to the Seller shall have been discharged. The Seller is to have power to appropriate payments to such goods and accounts, as it thinks fit notwithstanding any appropriation by the Buyer to the contrary. In the event that the Buyer uses the goods/product in some manufacturing or construction process of its own or some third party, then the Buyer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods/product in trust for the Seller. Such part shall be deemed to equal in dollar terms the amount owing by the Buyer to the Seller at the time of the receipt of such proceeds.