Topic%204%20-%20Part%202%20-%20Assignments

When a future chose in action comes into existence it

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: When a future chose in action comes into existence it “shall answer the description in the assignment” – a vague description of the property will not be enforced The contract must be of a type for which equity will grant specific performance - equity will not aid a volunteer
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43 Re Goldcorp Exchange Ltd (in rec’p)   [1995] Different parties had contracts to buy gold: Some non-allocated purchasers Some who had contracts with Walker, which was acquired by Goldcorp – bullion was originally allocated Co made representations re ownership Company insolvent; had insufficient gold Purchasers claimed proprietary remedy H of L refused their claims – why?
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44 Re Goldcorp Exchange  cont. [U]nder a simple contract for the sale of unascertained goods no equitable title can pass merely by virtue of the sale… [I]t is impossible to have a title to goods, when nobody knows to which goods the title relates
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45 Norman v FCT  (1963) We know N assigned interest on part of a loan to his wife. N also assigned to his wife, by way of gift, dividends from shares for one year He assigned by deed ‘all his right title and interest for a year to the dividends on the shares, and to the interest on £3,000 of the loan’ HELD: At the date of assignment, the dividends had not been declared, they were a mere expectancy – a future chose in action The interest to be received on the loan was also future property
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46 Judgments in  Norman   Dividends : Windeyer J: A dividend is not a debt until it is declared. It is impossible for anyone to own something that does not exist and it is impossible for anyone to make a present gift of such a thing...however sure he may be that it will come into existence The assignment fails
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47 Norman  - interest Menzies J: Majority view was that any interest which may accrue in the future upon an existing loan has “the character of a right to come into existence” The assignment fails Windeyer was in dissent re the interest Why?
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48 Williams v CIR  [1965] NZ case W had a life estate in a trust over farm property By way of gift, W assigned by deed for a period of four years the first £500 of the net income of his farm to his local church HELD: Money not yet acquired is a mere expectancy and cannot be assigned
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49 Shepherd v FCT  (1965) S granted C a licence to use his inventions at a monthly rental of 5% of the gross sale price. S assigned by deed ‘all right title and interest’ to 90% of the royalties. Was this present or future property – for tax purposes? HELD: Was a valid assignment of a presently existing right - a contractual relationship that must continue throughout the ensuing 3 years – couldn’t be terminated Distinguished Norman where the loan could be terminated at will
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50 Post  Shepherd A present right to future income may be assigned: Shepherd It doesn’t matter whether that right actually results in any income or not; if it is a presently existing right it can be assigned: Shepherd Conversely an attempt to assign income that
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