o Wideyer said dissent that has been accepted subsequently as a better

O wideyer said dissent that has been accepted

This preview shows page 92 - 94 out of 160 pages.

o Wideyer said dissent that has been accepted subsequently as a better articulation. Shepherd v. Comm. Of Taxation (1965) 113 CLR 385 - Facts: George Shepherd was an inventor. He invented a particular Caster Wheel and was granted a license to a manufacturer to make and distribute the castor wheels for a share of the profits. - Subsequently Shepherd attempted to assign by deed 90% of his income under that agreement for a period of three years . - The Federal Commissioner of Tax tried to assess Shepherd on 100% of his royalties. - If Shepherd had effectively assigned 90% of his license fee then the Federal Commission of Tax would only be able to tax Shepherd on the remaining 10%. - The Federal Commissioner of Tax argued that Shepherd had FIRST received the right to 100% of the royalties and THEN assigned them and as such should be liable at 100% of the royalty rights.
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93 - Hence, did George Shepherd assign the right to receive income under the agreement? (presently existing property which can be gifted) Or did he assign the royalties if and when they would be received? (future property which can only be assigned if someone pays value for them) - Held: Barwick CJ and Kitto J; the deed constituted an effective assignment of 90% of Shepard’s existing property and there was no need for valuable consideration. The uncertainty element did not prevent the assignment pertaining to presently existing property . - Kitto J drew the analogy between the tree and the fruit. The tree may or may not bare fruit, however, the tree is presently existing property . o The tree is a presently existing thing , (the contractual right for 3 years to receive royalty) 90% of which he was assigning voluntarily to someone – can do it voluntary, as it is existing, if it is the tree you are assigning you can do it voluntarily, on the other hand the fruit may not be borne out of the tree, if you are attempting to assign the fruit, assignment is only effective if you pay valuable consideration for it. Reasoning in shepherd criticized because even though we thought kitto nailed it with the metaphor, he proceeded to look at Normans case and agreed with the majority! Equitable Assignment Of Legal Property Equity recognises the failed legal assignment of legal property in different ways in three different situations: ( may be saved in equity) A. Where the assignment is for valuable consideration but it fails to comply with writing requirements; B. Where the assignment is voluntary and fails to comply with writing requirements; C. Where the assignment is of legal property which is not assignable at law. Note: Writing Requirements for the types of property: - The Statutory Writing Requirements for the type property that is being assigned are as follows: LAND: - Transmission of Interest MUST BE IN WRITING: o For OST: s23C(1)(a) [interest in land created or disposed of) ; s23B (transmission in will) o For TT: S23C(1)(a) CA;s40-42 RPA [must be registered] PERSONALTY - Chose in Action: s12, Conveyancing Act 1919 (NSW): Eg. Debt, inheritance under a will, shares, copyright, bills of exchange, life policies, promissory notes o
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