property assignment (1 Viewer)

[iwannarock]

^^ lol

Ah, so its to do with merits/legality stuff, yeah?

.... How?

no no i havent read the case. i didnt even make an attempt to use it in q1.

"MIMIA v Nystrom (today) is a unanimous High Court decision on
jurisdictional error and failure to take into account a relevant
consideration. I haven't read the judgment yet but attach the High
Court's summary of it. I have also placed the summary on the homepage.
The judgment is available on AustLII. Credit will be given for taking
this decision into account if it turns out to be important. Not taking
it into account will not lose marks."

i just read that and thought.................meh

 

[MaryJane]

no no i havent read the case. i didnt even make an attempt to use it in q1.

"MIMIA v Nystrom (today) is a unanimous High Court decision on
jurisdictional error and failure to take into account a relevant
consideration. I haven't read the judgment yet but attach the High
Court's summary of it. I have also placed the summary on the homepage.
The judgment is available on AustLII. Credit will be given for taking
this decision into account if it turns out to be important. Not taking
it into account will not lose marks."

i just read that and thought.................meh

Oh great, ta for that IWR.

The judgement isnt on Austlii yet, either (or, from what I could find). Only the transcript. They have "reserved judgement"

 

[iwannarock]

8 November 2006

MINISTER FOR IMMIGRATION AND INDIGENOUS AFFAIRS v STEFAN NYSTROM

The cancellation of one of Mr Nystrom’s two visas should be taken to have cancelled the other, the High Court of Australia held today.

Mr Nystrom was born in Sweden on 31 December 1973 while his mother was visiting relatives. His parents had migrated to Australia in 1966. Mr Nystrom and his mother returned to Australia on 27 January 1974 and he has not left Australia since. He knows little of his Swedish relatives and does not speak Swedish. Mr Nystom has a criminal record of 87 offences dating back to when he was aged 10 and he has served eight prison terms. His convictions include theft, burglary, criminal damage, armed robbery, drug offences, driving offences, arson, intentionally causing serious injury and aggravated rape. In 2004 the Minister cancelled Mr Nystrom’s transitional (permanent) visa because, based on his substantial criminal record, he failed to meet the character test specified in section 501(6) of the Migration Act. He claimed he also held an absorbed person visa. There is no difference in the substantive rights conferred by the two visas. Mr Nystrom argued that because he had been a permanent resident for 10 years before the commission of the crimes he was not liable to removal from Australia on cancellation of a visa. He also argued that the Minister had either cancelled the wrong visa or failed to take his absorbed person visa into account.

A federal magistrate upheld the Minister’s decision on the basis that, even if accepted that Mr Nystrom was deemed to hold an absorbed person visa, section 501F(3) of the Act applied. This provides that if the Minister cancels a person’s visa and the person holds another visa, the Minister is also taken to have decided to cancel that other visa. When Mr Nystrom appealed to the Full Court of the Federal Court, the Minister argued that an absorbed person visa only applied to those who became absorbed persons before 1984 although they had originally been illegal immigrants and Mr Nystrom was not such a person. The Full Court, by majority, held that Mr Nystrom met the criteria for the visa. It set aside the Minister’s decision to cancel the transitional visa and held that the Minister had committed jurisdictional error. If Mr Nystrom did not hold a transitional visa then cancelling a non-existent visa is not a valid exercise of statutory power. If he held both visas, the Minister had not considered the fact that he held an absorbed person visa which would also be cancelled by operation of section 501F(3). The Minister appealed to the High Court.

The High Court unanimously allowed the appeal. It held that the Minister did not fail to take into account a relevant consideration when she did not refer Mr Nystrom also holding an absorbed person visa. The Court held that he qualified for and acquired simultaneously each of the deemed visas. Accordingly, the absorbed person visa was also cancelled upon cancellation of his transitional (permanent) visa in accordance with section 501F(3) of the Act. Both visas conferred the same rights, so the same considerations applied whichever visa was cancelled. The power conferred on the Minister by section 501(2) to cancel a visa could be exercised in Mr Nystrom’s case. The Court also held that this power is not restricted by the deportation power in sections 200 and 201 of the Act which enables the deportation of non-citizens convicted of an offence attracting at least one year’s jail and who had been in Australia for less than 10 years. It held that the provisions are capable of operating concurrently and the deportation provisions did not “protect” Mr Nystrom from removal via visa cancellation.
• This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.

thats all i can find on it.

its just the attatched summary Ian Stewart gave with the post on the bulletin.

 

[MaryJane]

Ta for that IWR. I'm not going to use it. I've just finished off all the footnotes for q1 *dances*

Now, to proof-read and footnote q2. I hate footnoting. i think its the worst part.

 

[iwannarock]

Ta for that IWR. I'm not going to use it. I've just finished off all the footnotes for q1 *dances*

Now, to proof-read and footnote q2. I hate footnoting. i think its the worst part.

i never understand why people don't footnote as they go.

i used to do it all at the end......it was such a pain finding everything i've used and all of that.

once i used the footnote as you go method i never went back. it just seems quicker.

 

[MaryJane]

Oh no, i footnote as I go, but what I do is write "ref 1", "ref 2" etc up the top of my references. And so, when I'm footnoting, I just write "ref 1 at 23", and then come back and fill it in.

I use this way, because, like you, I used to do all te footnoting at the last minute. And then I'd either delete a footnote, or add one, which screwed up my "above" and "ibid" stuff. I think my method works ok... sometimes!

Off to hand this bastard in. Yippee!!!!!!!!!!!!!!!!!!!!!!!!

 

[scarecrow_of_oz]

sorry for the lack of response mj i was crazy scrambling to get the thing done in the end

i didn't end up incorporating the case in the end either - i'd read it, and had a kick ass way to include it in a paragraph i didn't get time to write

not complaining tho - just so so damn happy i got it finished in time. thanks for ur help again guys - again, u are seriously my sanity come evil assignment time!!

 

[iwannarock]

sorry for the lack of response mj i was crazy scrambling to get the thing done in the end

i didn't end up incorporating the case in the end either - i'd read it, and had a kick ass way to include it in a paragraph i didn't get time to write

not complaining tho - just so so damn happy i got it finished in time. thanks for ur help again guys - again, u are seriously my sanity come evil assignment time!!

now on to property exam we go!

well not me yet.........i still have a music essay to write for thursday. but after doing law essays music essays seem like nothing. i think i'll start it 2morow.

 

[scarecrow_of_oz]

where are u darlings?

property tommorrow..... arrrrhhhhhhh!!!!

how u going with cotterel? what do u think the question will be?
i'm thinking it'll be something along the lines of the first question in the pink book - i.e. modern significance of the trust.

 

[iwannarock]

i've been listening to the lectures and cramming to make summaries whilst simultaneiously trying to answer problem questions

i have really screwed myself this time.

then once i finish all that..........i hope to figure out the cotteral stuff........although if its not cotteral.........im screwed.

it could be quistclose stuff......or something stupid. i hope not.

if its cotteral i'll atleast be able to regurgitate stuff for some marks.

fuck so much to learn so little time.

quote cameron

"this is a subject with teeth, and by that i mean if you don't do the readings and don't keep up with stuff on a week to week basis you'll get to week 13 and realise you're screwed. in the exam it will all come back and bite you in the ass. theres a good chance you'll fail"



its like he's speaking to meeeeeeee!

ah back to study i go.:wave:

 

[MaryJane]

Ah yes, its all good fun, hey?

I have noooo idea what the theory question is going to be. I'm just looking at Cotterrell (just learnt how to spell it correctly yay!). Also, I think quistclose is a possibility, but thats pretty simple (resulting vs express).

A quick question, I have written in week 2 (or something) that constructive trusts are mere equities... are they? Ive totally confused myself. I dont think they are.

edit: they are only bare trustees. That it.

 

[iwannarock]

i'm almost getting through all the lectures yay.

and cameron said that he wont be asking anything that wasnt already asked in CM's tute questions.

so i guess that'll help me a tiny bit for the problem questions. the only thing i have to do now is learn how to identify what issues in problem questions relate to what weeks tute reading so in the exam i can go "oh yeah this is from week so and so" and try and figure it out from there.

back to work i go.

 

[scarecrow_of_oz]

cotterrell is driving me up the damn wall

i get that he has three main reasons (albeit interconnected and convoluted) for acknowleding its modern significance - recognition of power, influence in popular conciousness, understanding legal doctrine's weaknesses - right?!)

but how on earth do you counter argue? plus the modern trusts thing - i.e. quistclose and charities - they don't really pose threats to his overall view do they (which seems to be - let's understand trusts?) damn cotterrell. let's stab him.

 

[MaryJane]

I havent yet done the Cotterrell readings, but my friend told me that his second argument is almost the exact opposite of the first one, because he realised that charities etc were right against his view.

Cant really help much... I'm more planning on using my substantive knowledge to get me through, seeing Cameron drove home how much you have to apply it to the actual law. Sigh. So over all of this.

But I like looking at my little wad of notes, all highlighted and post-it-noted. I feel all smart

 

[scarecrow_of_oz]

nice one
i'm going off the text book for it - would prolly help if i'd read all the chapters (like confidential info, rights and remedies) but oh well. i had notes (off a fourth grader) but managed to lose them. twice. i swear i'm out to get me.

i agree that his second article seems to contradict his first in many ways - but i don't think it's totally about charities - he acknowledges them as 'special' in his first article. hey what are u going to apply it to? i was going to focus on charities, quistclose (and maybe CI - which i really should read at some point).

 

[iwannarock]

well im done listening to lectures and my failed attempt to make conclusive summaries of each chapters.

its time for cotterell.

i'll stick with that for 2 hours. if it doesnt make sense to me then........oh well.

and no matter how much i read about something......i look at a problem question and think

then i read the solution and im like ooooooooooh.......yeah i know that.

not gonna help in the exam when theres no solution to look at.

really in a dilly of a pickle this time.

my mantra going into the exam "8/20 for each section here........then no more property im in the clear!":wave:

(i need 24/60 to get my raw mark to 50 %)

 

[MaryJane]

Ok dude, basic summary:

* Cotterrell has two articles, right?
- Article 1: Power to the Beneficiaries. It is 'hidden' by the trust relationship, where it appears as though the Trustee (as they hold legal title) are the king shit of the trust relationship. But, according to Cott, they aren't. Its all hidden because the law has taken the social relationship (where the weaker party (B) is trusting the Trustee) and reversed it. It is because we are perceived as 'equal' before the law, but what we own (our assets) arent.

- Article 2: He kinda realises that his first article has been bagged to the shit, because there are charitable trusts (which he mentions towards the end of Article 1), and Quistclose, and those powers in week 12, that really grant the power to the Trustees. And now, because of our modern world, where the biggest, well-known trust is Superannuation, the Trustee's hold all this management expertise, and so discount the beneficiaries. The beneficiaries have become obsolete and are separated from the Trustees. Now, the Trustees hold all the power, and the beneficiary has none.

... Although he still thinks that the B's have the power... its just weakened and more difficult to enforce.

Would recommend reading Dobris (who also states that big trusts have wrecked the social, trusting nature of trusts, and the Trustee holds all the power), and possibly Voyce (but he just goes on about how women have no power).

Hope that helps... My brain is fried. Off to have a shower - yay! Procrastination!!

 

[iwannarock]

alright...............here we go!

to think at 12pm this will all be over.

8marks in each section..........8 maaaaaaaaaaaaaarks.

i can dooooooooo this.

 

[iwannarock]

wow.

it was not so bad. well it was bad.

but the way i look at it........last semester i thought i did really bad..........and i needed 27/45 to get to 50% then.

so if that happened.......maybe i can pass this.

the essay question.......fuck! couldnt have been worse for me.

what i did was define what a quistclose was......then went through cotterrell's principles...........then spent the rest of the time trying to figure out how they interrelate together writing lots of roundabout ways whether the existence of quistclose trusts support cotterrells arguments.

problem questions........well..........some sections i was good in. others i wrote shitall in.

secret trusts....charitable trusts........the mere power etc disposition and the resulting trust thing in the second problem i did decent in.

in the first problem question........well whether it was effective......i totally hit a blank and just babble about crap.

all the other parts seemed to be about the stuff in the lecture on remedies and rights of trustees/beneficiaries.

i answered all those sections, but definetly not with relevent authority. i struggled to remember/find the cases in my notes. so it was just like.......yes maxwell has a right to reimburse himself..........this is because...........um...........um.

oh well.

let us never speak of the exam again.

time to live in ignorance until dec 20th or whenever the hell we get results.

8/20.........8/20..........8/20! c'moooooooooooooooon.

 

[MaryJane]

So glad that over. Late reply, I know.

I have wiped it all from my mind. Pure bliss....

Thanks again guys for your love and support!!!!!