Discuss the legal principles applicable to determine if there has been a breach of duty of care in negligence.
MARKING GUIDE TO BUIL 1247 ASSIGNMENT 2014.
Discuss what are equitable (real) property interests.
1. In a paragraph discuss the distinction between
legal and equitable real property interests.
a) Legal as of right.
b) Equitable descetionary-see equitable maxims.
c) Where in conflict legal interest prevails.
2. List equitable property interests.
a) Beneficiary of a land interest under a will.
b) Purchaser of contract of sale of land which includes a land interest before registration.
c) Lease ( can be considered an estate or perhaps an interest),
d) Mortgage,
e) Easement, and
f) A profit a prendre
that do not conform to the common law or statutory formalities but do conform to the requirements in equity of
*See the rule in Walsh v Lonsdale.
* Doctrine of part performance.
*Re mortgage see deposit of title documents.
g) Restrictive covenant-always an equitable interest.
h) An equitable easement and mortgage could also be created by the principles equitable estoppel.
3. Torrens Title System of Registration.
a) As a general rule all unregistered interests are equitable.
b) Exception is an oral lease 3 years or less.
Discuss the processes a court could use to interpret legislation.
1. Use the definitions in the Act.
2. Use the recital, headings and marginal notes in the Act.
3. General rule the construction that best promotes the purpose or object of the Act.
4. Direct precedent case law of that legislation.
5. Use of the common law key principles
a) Consider the entire Act.
b) Words are presumed to a have a consistent meaning throughout the Act.
c) Technical words are given the technical meaning
6. The common law rules of statutory interpretation.
a) The literal rule.
b) The golden rule.
c) The mischief rule.
d) The purpose rule.
7. Use of extrinsic materials. See parliamentary debates.
a) Commonwealth government. See s. 35 of the Acts Interpretation Act 1901.
b) Victoria. See S. 35 of the Interpretation of legislation Act.
8. The equitable maxims of interpretation.
a) Ejusdem generis rule.
b) Noscitur a sociis.
c) Contra proferentum.
d) Other.
Discuss the statutory and common law principles that will restrict….
1. Damage thresholds. See PART VB and VBA. (W.A.)
2. Damage caps. See Table 3.1 p 97 of the text book.
3. Professional Standards Act 2003 S31.
4. Contributory negligence. S26 (W.A.)
5. Voluntary assumption of risk. S54 (W.A.)
6. Proportionate liability. Part IV AA (W.A.)
7. More severe limitation periods. Ss 27D and 51A Limitations of Actions Act
8. Obligation to mitigate loss if the plaintiff has the means.
9. Test for causation and remoteness.
General.
1. Introductions.
2. Presentation.
3. Logical development.
4. Syntax.
5. Research.
6. Other
