GARCIA v LAM and ANOR [1996] NSWCA 204

GARCIA v LAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA

24 November 1995, 2 July 1996

[1996] NSWCA 204

Gifts — Inter vivos — Imperfect gifts — When enforceable — General principles

Milroy v Lord (1862) 4 DeG F and J 264,45 ER 1185 Anning v Anning (1907) 4 CLR 1049 Corin v Patton (1989-1990) 169 CLR 540

Sheller JA I agree with Powell JA.

Powell JA This is an appeal by leave from an interlocutory Judgment delivered by Hulme J on 17th August 1993 when sitting in the Equity Division of the Court, pursuant to which Judgment his Honour ordered that the operation of a Caveat which had earlier been lodged by the Appellant in respect of certain strata units of which the First Respondent was the Registered Proprietor should cease as from 23 August 1993. Although an application for a stay of the operation of that Order was later made to this Court, that application was dismissed in the light of certain undertakings (see Appeal Book at 123-124) which were given to the Court by the Second Respondent which, by that time, had become beneficially entitled to the strata units in question, and which, by reason of that fact, was joined as an addition Party/Respondent to the appeal.

Although the written submissions which were lodged by Mr DA Smallbone who appeared on the hearing of the appeal for the Appellant ranged more widely, and although the question for the Court which was formulated by Mr Smallbone in the course of his opening the appeal (see Transcript at 1) was framed in a slightly different way, the questions for determination by the Court appear to me to be: -

1. whether the terms of a document entitled "Deed of Assignment" dated 26 November 1991 made between the First Respondent as Assignor and the Appellant as Assignee operated as a present assignment of a chose in action which was enforceable at the suit of the Appellant:-