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In T A Dellaca v PDL Industries Ltd the court considers part Paper

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Paper type: Essay , Subject: Animals

In T A Dellaca v PDL Industries Ltd the court considers part performance in 2 steps there has been an oral agreement between mark and Frieda which a) showed a step in the performance of contractual obligation or the exercise of a contractual right under the oral contract and b) when viewed independently of the oral contract was, on the possibilities, done on the footing that a contract relating to the land and such as that alleged in existence. under land transfer act 1952 (s 5 (1) and under land transfer act 2017 the trees and timber are part of the land therefore mark cannot do anything about that, but this was before the Property law act was enforceable on the 1st January 2008. After the property law act 2007 came into consideration under s 333 of the property law act 2007 provides that a court can order to remove obstructions, including the trimming or removal of trees that can cause damage or adjoining land. Mark can legally chop down the tree because it was coming in his drive way. In Schedule 5 property law act which was s 9 before 2007 states that covenants implied in grants of vehicular rights of way (2) which states the right to go pass and repass at all times, with or without vehicles, machinery and equipment of any kind. Over time things modernize mark is entitled to the driveway therefore also taking care of costs and damage. But the sovereign land can argue nuisance in torts.

In Ceda drycleaners Ltd v Doonan 1998 shows esstopel which then leads to him performing his actions with Frieda accepting that agreement. under section 218 and 221 property law act 2007 the schedule 3 convenats apply to the specified leases unless a contrary intention is expressed, Under the common law test mark would not be able to bind future owners but he does have an interest in equity as mark can claim in equity as equity looks at substance and not form. In Seton v Slade 1802 “once a mortgage, always a mortgage” per lord eldon this shows that what frieda said to mark was a promise and it goes the same way “once a promise, always a promise”. Whereas common law is about form and equity is about beyond substantial (intention). Noakes & Co ltd v rice (1902) AC 24 (HL) was about how mortgagor bound by a covenant in mortgage to continue to buy the beer even after payment to the mortgagee of all money secure by the mortgage this was held as the convenant was not enforceable after redemption of the charge. Whereas for Mark Frieda’s words under equity was enforceable as it doesn’t require form but oral words. Therefore, according to this legal cases and acts Mr Mark could secure his obligations towards the future owners of Frieda’s Land. Under s (a) 210 property law act 2007 the lessee is in possession of the land, although the lessor and the lessee implication, on the duration of the term of the lease, there was a covenant between mark and Frieda as the intention of the agreement was that it will run with Frieda’s land and bind purchasers of her property perpetuity (last forever). Therefore the purchaser has no right to state that mark or anyone should work across the farm anymore this comes under the agreement that was made by Frieda

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Yes there is arguments as there was no contract between the two parties which ends up questioning how can there be a lease? Under s 9 Registrar to keep register 2 (a,b) records information and permits the recorded information to be readily accessed or reproduced in useable form. Under Section 9 of the property law act 2007 which was s 9 property law act 1952 exercise of powers it states that the deed must be in writing, executed, and delivered. Whereas in this case the agreement was sealed with nothing more than a handshake. Even though this agreement was made in 2003 it was a term of 20 years which now can be applied under property law act 2007.In the spencer case held a lessee covenant to build a wall was enforceable against assignees as it was a burden that ran with the land, as it “touched and concerned the leased land” therefore this agreement was made before 1st January 2008 when the property law act 2007 came into effect. In P & A Swift investment v Combined English stores [1989] this was a case involving a guarantee tenant would pay the rent. Here the reversion interest was assigned Whereas the garage that was promised to be given to mark by sally and this case supports it. In other words the covenant effects the nature, quality, mode of use or value of the land of the reversioner and the covenant is not expressed to personal. Therefore this are the arguments that there was no lease of the garage.

There was a oral agreement which was very straightforward. And the lawyer of mark was to draw up the paper work within the following two weeks and pay all the associated legal costs. Once sally has signed the documentation and mark pay and take the possession. Under s 97 of the property law act 2007 (1) the current mortgagor or any other person entitled to redeem mortgaged property may redeem it in accordance with this subpart at any time before it has been sold. Under the power of sale, by the mortgage or a receiver. Therefore under the deed of assignement unless it is signed between the parties creating this privity of contract when the assignment occurs. Under s 241 (1) if there has been a transfer or assignment of a lease, the transferor or assignor remains liable to the lessor for (b) the observance and performance of all covenants of the lessee. In Tulk v Moxhay 1848 it was about how the purchaser sold the part of the square to somone else and the court held that if the agreement has been a contract instead of a convenant, it would have been enforceable, therefore in the case of Mark and sally it was both as it was a oral contract and a oral convenant which was to be turned into legal documentation by the lawyer within the following two weeks. Therefore mark under equity it shows that mark would be claiming a right of way entitlement on the torrens title by lodging a caveat which shows his claim of an interest. In NZ meat nominees Ltd v Sim 1990 tipping js judgment relates to mark as there was a settlement by both parties for registering a transfer of the lease of the garage. From this arguments mark can claim for the garage which sally decided to give someone else. Under promissory esstopel the contract is made once you give your words to someone so the court looks at that. In Ceda Dryers it states that esstopel of your communication can amount to your part performance. Where the equity looks at part performance.

Under clause 18 it restricts the ability to drive on the island roads after dusk and before dawn so as not to disturb the noctrurnal birdlife. Therefore the possibilities are that they can use some kind of ride which doesn’t disturb the birdlife at the specific time whereas non motor rides can be used but this is if they don’t take any of the acts into consideration and have love for wildlife. But under the land transfer act 1.7.03 which is to do in things with land which birds come under animals, it states that wildlife is not chattel as birds are included in it. In Yanmer v Eaton states that no person has property in wildlife if they are not with them from when they were born or either killed this is owed as property by the hunter. Under s 3 of the wildlife act 1953 ss 4-7 enjoys less than full protection which means birds love to whistle around and roam at nights and in the morning therefore it would not affect the birlife as they themseleves love being around loud noises. Therefore birdlife is included as a wildlife which is owed by the crown and I don’t think covenant 18 is binding to Mark as he is not the owner of the wildlife unless he decides to haunt the wildlife legally.

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