Hereafter Vs. John Analysis

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INTRODUCTION A number of contending claims exist in relation to the Moreton Bay (hereafter ‘the painting’). Such claims stand to be most effectively analysed when they are evaluated via an application of contextually relevant principles extant under the law of property. Ultimately it appears that Dr. St John (hereafter ‘John’) shall most probably be found to be the true and rightful owner of the painting. Seemingly this is reinforced throughout the scenario as a result of the nature of the original transfer between Percy and John. Nevertheless, the issue at hand is the determination of whether John has a claim in law to retrieve the painting after being sold by the art gallery (hereafter ‘the gallery’). It must be established that the gallery…show more content…
This may pose a limitation regarding John’s claim whereby the gallery could potentially argue that John does not have a proprietary interest as the painting has not effectively been registered, which may exemplify the nemo dat quod non habet (no one can give what they lack) principle. The effect in equity of an unregistered voluntary transfer was in issue before the High Court in the leading case of Corin v Patton. In this case the wife had attempted to create a trust in favour of her by executing a transfer of her interest in the joint tenancy to a trustee. The wife died prior to registration without taking any action to obtain the certificate of title which would have enabled the transfer to be registered. The trial judge, McLelland J, held that the joint tenancy had not been severed. The Court of Appeal upheld the trial judge’s decision, applying the principles set down in Milroy v Lord and followed in later decisions, stating that the trustee had obtained no legal or equitable interest in the land. In dismissing the appeal in the High Court, Mason CJ and McHugh J, in a joint judgment, and Deane J, held that no interest arose in equity because the donor had not done everything that was necessary for her to have done to effect a transfer of legal title. The High Court did not consider the power of the donor to recall the gift to be strictly relevant to the issue of whether she had done everything necessary to effect a transfer of legal title. This is also not particularly relevant either as Percy has not asked for the gift to be returned. Mason CJ and McHugh J conclude
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