John comes into your law practice for advice. He tells you of the following series of events:
He states that he owns property in a town called Mermaidland, a town in Queensland. Some building and construction is occuring at the location. He is having renovations done to both the Commercial premises and the granny flat attached to it. The commercial premises is let, for a period of three years to “bait and Tackle Pty Ltd” under a written lease. The granny flat is let to his cousin Jack. There is no written agreement in place. The Bait shop has continued to trade, with some areas roped off with signs stating ‘Keep Out – Construction Site’ whilst John has moved out due to Workplace Health and Safety concerns. As construction continued an amazing thing happened. Bill, a workman employed by the builder, ‘Hard Constructions Pty Ltd’ found a gold bar under a concrete slab that had been removed and was to be relaid. Another gold bar (but damaged) was located behind a lose brick in the storeroom wall. Both these finds were made in the Bait shop. Ben, a subcontractor (not employee of) Hard Constructions Pty Ltd saw Bill surprise find. Ben immediately and thoroughly searched the residence. Ben found some more gold bars sitting on the coffee table in Jacks lounge room. It appeared like the bars had been extracted from the ground under the house. The floor boards next to the coffee table had been prised up. Ben found a final lone gold bar on a steel beam above the window in the main bedroom. John was inspecting the works on the day, and upon hearing the commotion, he immediately snatched the two bars from Bens hand. Upon hearing that Bill had found something as well John took all the bars which he had collected and added them to the ones he located in an unlocked toolbox on the back of Bills work ute which he sneakily searched. John immediately dismissed everyone from the site and claimed all the bars were his. This find had become so news worthy in Mermaidsville that the local news service had set up a live cross, which included a mobile camera platform which could be elavated and lowered to enable a view of the property over his 10 foot high colour bond fence. John wants this invasion of privacy to stop. Further John has received letters from legal representatives of Jack, Bill, Ben, and Bait and Tackle Pty Ltd and the Queensland Government, claiming all or some of the gold bars. John gives you the gold bars for safe keeping in your safe. They are of value. He wants to keep them all.
Provide a short description of the property in this scenario and its relationship to each person.
In 3500 words discuss John’s position in relation to the legal claims against him. You are a property lawyer confine your answer to the law of property unless some other matter is necessary in your discussion.
Modules 1, 2, 3 and 4 of the course discuss elements of Property Law. Now consider the law under sections 10, 12, 14 and 22 (other sections may be applicable) of the Personal Securities Act 2009 (Cth). Is the Act consistent or inconsistent with the common law principles set out in the common law fundamentals in this course. Discuss any major differences or issues which may present. Cite case law where relevant. You must correlate the two bodies of law in relation to property in your answer.
Merle comes to you with questions about clauses in her wil. You are a new expert property lawyer and she wants a written response. Merle draws your attention specifically to Clause 10 which says:
“Upon my death, I Merle Gweneth Jorgensen, direct my trustees to hold my stock market share portfolio UPON TRUST for the children of my sons in equal shares as Tennants in Common. My said grand children must agree on the operation of that stock portfolio and if they do not, then my trustees may decide any issue that shall be binding.”
Clause 10 of the will contains a clause called a residuary clause which provides that if any gift in the will should fail, then that gift should be paid to all of Merle’s children (a son and two daughters) equally. Merle tells you that she has had a falling out with her son over his lack of commitment to settling down and further she does not want him to benefit from Clause 10 via clause 12. He is unmarried and has no children.
Assume Merle has had independent success planning advice and you only need to advise on Property related matters. Provide statutory references for any of your opinions where relevant.
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