*Please note that the links to the content in this Part will direct you to Westlaw AU.
The latest issue of the Australian Law Journal (Volume 89 Part 2) contains the following material:
CURRENT ISSUES – Editor: Acting Justice Peter W Young AO
- The siege of Sydney
- Discretion to prosecute
- Victoria is not a sovereign state
- Good news for fraudsters
- How far does Quistclose go?
- A judge’s duty to listen
CONVEYANCING AND PROPERTY – Editor: Peter Butt
- Incentive deeds and contractual penalties
- Sharing the costs of and maintaining an easement: A postscript
- No “taking” by order to cease prohibited use of land
- Volunteer gets indefeasibility
- Caveat extended pending appeal to High Court on issue of director’s liability
- Caveat claiming interest under constructive trust not extended
- Caveat claiming wrong interest removed
PERSONALIA – Editor: Clare Langford
- Justice Geoffrey Arthur Akeroyd Nettle
- Justice Iain James Kerr Ross AO
- New South Wales
- Justice Francois Kunc
- South Australia
- Justice Kevin Gordon Nicholson
- Justice Stephen Estcourt
RECENT CASES – Editor: Acting Justice Peter W Young AO
- Valuation of land
- Informal wills
- When can an undischarged bankrupt sue?
- Common law lien: Possession – Database
- Deeds: Whether a person is estopped from denying that an imperfectly executed document is not a deed
- Freezing orders in aid of foreign court process
- Lawyers: Injunction to restrain acting
What are accumulations and why they remain important – David K L Raphael
The law as to accumulations of income under trusts is often thought of as a difficult academic matter not relevant in practice. This article seeks to upset that view. It explains the origins of the present rules and how proper consideration of the circumstances in which beneficiaries may benefit from accumulating income may result in tax savings and other benefits.
Part 1 of this article explored the development of new approaches to the concept of possession in respect of land. A false approach to the concept has emerged in England, and to some extent in Australia. In particular, possessory remedies have been used to vindicate, or are considered available for the protection of, rights of occupation or use of land or various “degrees of control” of land. This Part considers more recent directions in the English and Australian positions and the parallel development of the ideas of possession enforceable against limited third parties and “possession for a purpose”.
Restitution sans rescission: Exposing the myth of a fallacy – Daniel Morris
Critics of Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 say that the court in that case confused termination with rescission when awarding restitutionary quantum meruit (RQM) to the plaintiff contractor against the repudiating principal. This alleged confusion became known as the “rescission fallacy”. This article seeks to disprove the existence of the rescission fallacy and goes on to argue that in fact, Renard and subsequent cases did not go far enough because they only established the contractor’s right to “get what its work is worth” where the contract’s failure was the principal’s fault. In fact, a repudiating contractor should be recognised as having the same rights because RQM has not been fault-based since unjust enrichment replaced implied promise or quasi-contract as the juridical basis for RQM awards.
For the pdf version of the table of contents, click here: ALJ Vol 89 No 2 Contents.