Laws3111 Lecture12 2011

Week 12 – Dealing with Competing Rights

  • Reminder: Multiple rights in the bundle are not inherently ‘competing’ rights

Theberge v Galerie

  • Lawful authorised prints turned into canvas without artists consent – was this ‘reproduction’ for copyright purposes?
  • General Rule: Once an authorised copy is sold up to the purchaser, what happens to it is up to the buyer (providing they don’t violate copyright)
  • Held: Transfer of ink was not a reproduction, as reproduction requires multiplication. No economic interest infringed, and no desire to create additional uncertainty in tangible property rights

Nemo Dat Rule (Sale of Goods s 24(1))

  • However estoppel is exception – if true owner represented the seller DID have the right to sell it (accepted in Thomas v Marac Finance for identical NSW provision)
  • Express statement sufficient to grant estoppel (Big Rock v Esanda)
  • Ommissions require actual negligence (Moorgate Mercantile v Twitchings) unless you adopt Kirby’s dissent in Thomas v Marac Finance

Moorgate Mercantile v Twitchings

  • Failed to register vehicle on registry used by 98% to indicate ownership – but not mandatory. Hire-Purchaser sold to third party
  • Minor held that may have been sufficient to constitute an estoppel, but majority held that an omission can only constitute estoppel if there is a duty to act (aka negligent omission)
  • Wilberforce found a ‘positive content’ in a reasonable person recognising the need to register.

Thomas v Marac (NSWCA)

  • Analysed Sale of Goods Act – held it supported estoppel as per Moorgate
  • Held estoppel could only arise from negligent omission – must actually breach a duty owed (Applied Wilberforce testfrom Mercantile)
  • Held Barclay’s breached no duty of care in this instance – at worst they allowed vehicle registration, which was never actually connected to/consequential to the actual loss
  • Kirby dissented (gasp) – said Sale of Goods Act did not require a duty be owed (statutory interpretation – not Wilberforce test) and looked further, including to policy considerations and statutory registries (broader context)

Johnson Matthey v Dascorp

  • Sale of gold by a thief – did third party buyer gain good title despite lack of notification of the theft?
  • Held: They had no duty to safeguard (so theft did not breach) and while they may have a duty to disclose the theft if they knew about it/their agents misconduct, but had no duty to notify that particular buyer – so failure to do so did not breach any duty (in the absence of a general trade practice to notify)

Sale of Goods Exceptions

  • Voidable title (s 25) can still pass good title
  • Seller still in possession (s 27) – passes title if good faith purchase
  • Buyer already in possession (s 27 + PPSA security interest until paid for)

Conflict of Laws (Interstate/International) - Douglas v Price

  • Chain of sales – car leased in NSW, sold in Qld, re-registered in Qld, then sold again in Qld
  • Nemo dat – lessor retained ownership at all times
  • Statute – Qld & NSW held security interests must be registered and good faith purchase in the absence of a registry WOULD pass title
  • Applied Qld statute (as car was sold in Qld) and no registration of the security interest had been made in Qld (Would probably be different under PPSA today)
  • Held: Movable property – law of the location of the property at the time of transaction applies
  • Note: Foreign laws (such as Italian) is much friendlier to BFPV w/ N (Winkworth) – so simply launder everything through Italy