Barwick cj in j h just arming someone with docs gives

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Barwick CJ in J& H Just: arming someone with docs gives apparent authority. NO requirement for detrimental reliance. Does not strictly follow agency law. Estoppel Theory: Gibbs CJ in Heid. Need representation and detrimental reliance. First will be estopped from relying on their priority in time. Is a representation being made to the second interest holder? Indirects representations/ arming conduct are sufficient. More difficult because must show detrimental reliance. Must be a nexus/causation between postponing conduct of the 1 st and belief of the 2 nd . Flexible Approach: Mason and Deane in Heid. Show that there needs to be a real causal link. Rodrick points out that there are 2 situations where the connection might exist but foreseebility might not Jacobs v Platt – did not see the need to caveat. Heid v Reliance (in obiter) – not postponed if you leave your title with your solicitor and they wrongfully use it because it is not RF. 45
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Problem Qn: Factors of conduct – what is normal? Postponing behaviour? First in time? If there is postponing conduct look at the second person’s conduct. Latec Investments v Hotel Terrigal Facts: Terrigal gave a mortgage to Latec. Latec exercised the power of sale and did so badly. Sold to a wholly owned subsidiary of it – Southern Hotels. Southern used the property as a floating charge in favour of MLC. Hotel Terrigal tried to have the original sale set aside for fraud – claiming that there had been collusion between the mortgagee and the purchaser. MLC would have a subsequent equitable interest and Hotel Terrigal would have… Kitto J: The mortgagor has a mere equity until it obtains a court order. MLC would have priority and Hotel Terrigal would receive whatever was left after the charge was satisfied. Taylor J: Preferred the line of authority in Phillips . Takes a view that it is a full equitable interest – but whatever it is it has been postponed anyway because the mortgagor needed court assistant Menzies J: If the court makes good then retrospectively there is an interest that may arise. For priority purposes it was a mere equity and MLC should receive priority. Swanston [6.110] Facts: Although in Latec it was held to be a mere equity it was treated as proprietary. Held: It is a mere equity that is not proprietary in nature. Vasilou v Westpac Facts: Mrs V was the RP. Her dad represented her in court. The bank exercised a power of sale. The tenant in the property was asked whether he would put in an offer. The bank sold the property of private sale for $400,000. Did not inform the Vs that they had sold the property. The bank did not give them the surplass over and above the mortgage debt. Mr V argued that s77(1) “Power of Sale” had been improperly exercised. It was not about caveatability but priority.
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