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
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