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1‘… [W]here … title [is] … taken in the joint names of the spouses … [t]here is no occasion for equity to fasten upon the registered interest held by the joint tenants a trust obligation representing differently proportionate interests as tenants in common’, Trustees of the Property of John Daniel Cummins v Cummins [2006] HCA 6 [72] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

What were the reasons that their Honours offered in support of this assertion? Do you agree with it? Do you consider that the same reasoning should apply with respect to de facto marriages?

Fully explain your reasons and illustrate them by reference to decided English and/or Australian cases. If you refer to legislation, you should refer to Western Australian legislation and or Commonwealth of Australia (ie federal) legislation.

2. In Cuckmere Brick Co v Mutual Finance [1971] EWCA Civ 9; [1971] Ch 949, 965; [1971] 2 All ER 633, 643, Salmon LJ state that ‘… both on principle and authority, a mortgagee in exercising his power of sale … owe[s] a duty to take reasonable precaution to obtain the true market value of the mortgaged property at the date on which he decides to sell it.’

Describe the duty to which Lord Salmon refers. Is this true in Australia? Ought it to be? Why/why not?

Fully explain your reasons and illustrate them by reference to decided English and/or Australian cases. If you refer to legislation, you should refer to Western Australian legislation and or Commonwealth of Australia (ie federal) legislation.

Background of Property Law

Property law is a segment of law that specifically deals with legal matters relating to land, certainly tenancy and ownership in real estate. Considerably, various lawful systems have presented the explanations of property law all with a point of coincidence.Property law entails land, tangible, intangible, mobile and immobile assets. Therefore, this report seeks to present the legal issues regarding the case in hand and offer assistance to the victims of the casein regard to assimilatedprecedents of Australian courts.  

The case at hand calls for an elaboration of some law terms and the related concepts. The first law terminology is co-ownership that denotes a single piece of land or estate is owned by two or more identities, the trustees.The trustees have same rights of ownership in the estate or land. Significantly, co-ownership applies to estates or land not goods and automotive. The trustees have beneficiaries to the estate only that the beneficiaries are not entitled to legal ownership of the land. The beneficiaries have the possession in equity that is covered by the trustee.There exists no co-ownership connection between the trustee and the beneficiary.The connection is mutually based on trust.

The property law integrates joint tenancy and tenancy in common. Joint tenancy assimilates four key aspects that include time, possession, title and interest. For joint tenancy to exists, each trusteeneeds to obtain the right of ownershipin land. The unity of interest denotes that each of the owners should have equal degree of leasehold or freehold. Under the unity of title, each trustee needsto attain ownership documents under the same act as its legal owners. Finally, the unity of time explains that the interest of the trustees should be obtained during the same time. The essential feature of joint tenancy is the facts that rights of ownership after the death of one of tenants is directly transferred to remaining (surviving)trustees regardless of the directions of the trustee.

Tenancy in common is other type of ownership though no needs to incorporate the four unities; time, title, possession and interest. Reference to Obergell v. Hodges, tenancy in common is characterized by verses of severance, for instance, same shares.The lack of implied or express assertions and statements of severance results to the assumption that the joint tenancy and equity must take its way.Thus, Tenancy in this case is used in general base of argument in share of property to the respective beneficiaries.

According to the case at hand, “John Daniel Cummins v Cummins HCA 6 [72], 2006”, this is an expression of joint tenancy. The legal elements of interest, possession, title and time were integrated. A valuation of the property is conducted by Harris on behalf of Cummins to ascertain the indicated reasons of stamp fee duty and to disclose the valuation for thehouse.The disclosed value indicated in the agreement is a stipulation of the Cummins property purchase price. However, Sackville explains that Mrs. Cummins did not make any payment rather than the stamp fee duty which transferred the ownership for the property.

Co-Ownership and the Case at Hand

By declaring insolvent, the property owners impacted the sale of the house by indicatingthis to the shareholders.Sackville orders Mrs. Cummins to ascertain a proportion of sales and accumulated interests for the house. The accountability of the proportion was summed by Sackville and indicated Cummins to pay only the stamp fee duty not the acquisition price for the house. Cummins then decided to transfer the ownership rights to Aymcopic. Hence, the accountability for the shares were contradictory since the acquisition value was reflected to be the stamp fee duty and registration for shares were madeby Aymcopic, an indication to fraud.

In Property Law, the transfer of property by a person (or identity) who afterwards intentionally turns bankrupt is illegal.This is since the estate (or land) would remained under the ownership of the transferring person and could be accessible to the creditors if the transferring process would not have taken place.In simple terms, to transfer property is void if the reasons for the process were to defend the property from being shared among its creditors. According to precedents in US v. Windsor, it was determined that trustees require substantial material to win a trial. However, the expectations of the trustees are always overturned to be equitable under certain inferences like in the case “John Daniel Cummins v Cummins HCA 6 [72], 2006”.Moreover, Trustees expects that the determination of the inferences should be based on the prime facts in regards to the significance of the accusations declared against the owners, for instance, considering the Cummins and the severity of the penalties of the results contrary.

The allegations that Cummins were obligatory was enough to the main Judge and was attributed in the first finding. The assertions indicated that Cummins intentionally issued revenue for the prior periods, thus accountable for the obligations. Moreover, Cumminsdelivers the revenue yet intentionally does not lodge the annual tax return.This act is contrary to property law and is void.The exercise of remitting revenue coupled with the lodge the annual tax returndeprives Cummins available properties. Consequently, Cummins considers shifting shares as the only available option in protecting he’s properties since the revenue received was not to be reconciledagainst he’s tax obligations.

The absence of information if Cummins contributed to the procurement of the house and the shift of shares substantially provide for ill intentions of the Cummins to be beneficiaries of the sale of the house. This is one of the key reasons why the honors were in support of the assertion. Other include, The Cummins only paid for the stamp charges required for the contract.There is no necessary inconsistency between the conventional bases as to the nature of the ownership being dealt with. In August 1987, and the later conventional basis on which the litigation are conducted, noted that the consideration stipulated was not paid and that the property interest, ascertained as just described, was being dealt with on a voluntary basis.

Joint Tenancy and Tenancy in Common

It is important to put into consideration all the issues concerning the operation. For instance, the principles governing trusties that the registered title was that of joint tenants rather than tenants in common should be a key basis of argument in property law.  The severance enacted in August 1987 had the effect of puttingan end torights of survivorship. The dislike by equity of survivorship, and of what Deane J described as the expression of its preference for proportionate carriage of benefit and burden, is the equity reacted against the operation of chance to produce a result at odds with proportionate distribution between claimants. The intervention of equitable rights is engrossed by elements of joint tenancy that were examined through definite purposes and in views of noble morality. The elements notes that the equivalence of the welfare of members should not divide the liberty that makes up the possession. This is so irrespective of intent or role and there is freedom of progress by survivorship. The existence of lawful tenancy requires compensation that assimilates equity and integrates interests forits beneficiaries.

Considering opinions, there are important questions to be answered. For instance, what action is to be taken in determining whether subsequent admissions or conventional assumptions or arrangements were part of the purchase process? Also, is the registered title to the Hunters Hill property acquired by Mr. and Mrs. Cummins not at variance with an equitable title?  The Hunters Hill property, at the time of registration as joint tenancy dated 10 August 1970 was a vacant land.  The purchase moneys were contributedin proportions. A mortgage over the Hunters Hill property executed by Mr. and Mrs. Cummins in favor of the Commonwealth Savings Bank of Australia on 16 July 1971 secures an advance to Mr. Cummins. The advance is a joint payment of $8,000 on a covenant that the Cummins would erect and complete the dwelling house within six months of that date at a cost of not less than $33,500.  The tax return forMrs. Cummins for year ended 30 June 1971 was lodged by her accountant showed that the Hunters Hill property was Cummins’original place of residence.Similarly, pursuant to equitable rights, the tenants deserve the right for the property.

During the second judgement, Justice Sackville refers to the operation of statutory law to produce different outcomes todifferent classes of cases.  In particular, His Honor refers to the precedents on similar ruling. New South Wales law provides for the declaration of title or rights with respect to property by either party to a "domestic relationship".  The term is broadly defined as "de facto relationship". The doctrine elaborates the extent to which statutory law advancements needs to assimilate the doctrine of equity in substantial verdicts over the years.Consequently, Cummins was liable for his portion of the obligations since there was an absence of material information proving Cummins contributed to the procurement for the property and the shift of shares was made to protect the hisproperty.

The perception in the above case is applicable to spouses if there is joint tenancy of title. There are yet no indications of equity to apply if the spouses disclose the shares in the tenancy since honesty is still the base of argument in determining the tenancy of the spouses.The sustainability of the spouses’ supports towards contraction or acquaintance of a property is the optimal measure of the tenancy. The provision of equity is that, the overall intent favors the tenancy in common. The extent of revenue and fortuitous instances invested by the spouses is the consideration of equity. This goes hand in hand to neutralize the inequity between the degree of constructive efforts and the involvement to the possession of spouses’ residence.

Alexander, Nadja M. "Verdicts in Court-related ADR’, 22." Law in Context Special Issue: Alternative Dispute Resolution and the Courts 8 (2004): 1-18.

Craig, Paul, and Gráinne De Búrca. EU law: text, cases, and materials. Oxford University Press, 2011.

Dalhuisen, Jan. Dalhuisen on Transnational Comparative, Commercial, Financial and Trade Law Volume 2: Contract and Movable Property Law. Bloomsbury Publishing, 2013.

DratlerJr, Jay, and Stephen M. McJohn. Intellectual Property Law: Commercial, Creative and Industrial Property. Law Journal Press, 2017.

DratlerJr, Jay, and Stephen M. McJohn. Intellectual Property Law: Commercial, Creative and Industrial Property. Law Journal Press, 2017.

Ellison, Nicole B., and Danah M. Boyd. "Sociality through social network sites." In The Oxford handbook of internet studies. 2013.

Garnett, and Mary Keyes. Private international law in Australia. LexisNexis Butterworths, 2011.Mortensen, Reid, Richard

Gleeson, Gummow,Hyne,Heydon and Crennan. Trustees of the property of John Daniel Cummins v Cummins. HCA 6 [72], 2006.

Graham, Nicole. Lawscape: Property, environment, law. Routledge-Cavendish, 2010.

Jones, Alison, and Brenda Sufrin. EU competition law: text, cases, and materials. oxford university Press, 2016.

Keyes, Mary. "A Critical Analysis of Jurisdiction in International Litigation." PhD diss., unpublished PhD thesis, Griffith University, Brisbane, 2004.

Means, Gardiner. The modern corporation and private property. Routledge, 2017.

Obergell v. Hodges, 135 S. Ct. 1039, 576 U.S., 190 L. Ed. 2d 908 (2015).

US v. Windsor, 133 S. Ct. 2675, 570 U.S. 12, 186 L. Ed. 2d 808 (2013).

vanErp, Sjef, and Bram Akkermans, eds. Cases, materials and text on property law. Bloomsbury Publishing, 2012.

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