{[ promptMessage ]}

Bookmark it

{[ promptMessage ]}

What amounts to notice 1 brooking ja says that notice

Info iconThis preview shows pages 43–45. Sign up to view the full content.

View Full Document Right Arrow Icon
What amounts to notice? 1. Brooking JA says that ‘notice’ here means notice as opposed to knowledge 2. s199(1) PLA says that a purchaser shall not be prejudicially (ie adversely) affected by notice of any instrument fact or thing, unless it is within his own knowledge or that of his 43
Background image of page 43

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
44 agent in the transaction, or it would have come to his (or his agent’s) knowledge if such inquires and inspections had been made as ought reasonably to have been made by him (or his agent) Priorities problem: method 1. Establish what the interests are – are they equitable interests or mere equities? When was each created? 2. Apply notice test from Moffett v Dillon first. Was second interest acquired with notice (actual, constructive or imputed) of the existence of the first interest? If yes, the first interest holder will have priority (unless he has waived it or is estopped by his conduct). 3. If notice is not clearly established, proceed to the merits test. 4. Note the two formulations of the merits test – ‘better equity’ and ‘prima facie first in time’ (favoured by the weight of authority) from Rice v Rice. 5. Under the latter, question is whether there is conduct that makes it inequitable as between the parties that the prior interest holder should retain priority 6. Identify any relevant act or omission on part of the first that contributed to misapprehension by the second that the prior interest did not exist. 7. Given that act or omission, what makes it inequitable that the first should have priority? Estoppel fits best with ‘arming’ cases – but need to find representation and detriment Reasonable foreseeability fits best in the ‘inconsistent interest’ cases. Was it reasonably foreseeable at the time of the relevant conduct that a subsequent interest would be created in the belief that the prior interest did not exist? 8. Consider relevance of failure to caveat in this framework, and in light of other protection eg possession of land, DCT. 9. Make out your argument, then consider if it would make any difference to your answer if you applied the ‘better equity’ formulation. Prior equity v Subsequent equitable 1. Personal equity: ‘A right to seek the assistance of a court of equity that is personal to the plaintiff‘. Distinguish from ‘mere’ equity (which is better than a personal equity, but still not a full equitable interest) (proprietary) 2. A proprietary equity is enforceable in rem, but not assignable. It is usually a right to an adjustment of property rights eg Inwards v Baker 3. What about an equity to set aside a transaction for fraud? Latec Investments v Hotel Terrigal 1. Latec was reg’d mortgagee of HT’s land. On default by HT, Latec exercised mortgagee’s power of sale. Latec fraudulently sold to SH, its wholly owned subsidiary, at an undervalue. SH became reg’d and gave MLC a floating charge over its assets (an equitable interest). But for MLC’s intervention, HT would have been entitled to set aside
Background image of page 44
Image of page 45
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

Page43 / 47

What amounts to notice 1 Brooking JA says that notice here...

This preview shows document pages 43 - 45. Sign up to view the full document.

View Full Document Right Arrow Icon bookmark
Ask a homework question - tutors are online