Account of Profits

A remedy given by courts where a person has made an unauthorised profit in breach of a rule of equity. The guilty respondent is forced to pay to the applicant a sum of money equal to profits they made from an unlawful abuse of the applicant’s reliance on them, or from the applicant’s confidential information. For example a company director making a commercial profit from a business using confidential information about the company, or a trustee mishandling trust money to their own gain.

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Act of Parliament

Laws passed by Parliament are assembled into a document called an Act. Known as a 'bill' until formal assent by the Governor or Governor General. See also Legislation and Statute. Compare with Regulation.

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Adduce

The action of questioning witnesses at trial and presenting their evidence to the court. Usage: 'To adduce evidence.'

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Administration

A corporation experiencing difficulty in avoiding insolvency may apply, or be mandated, to be placed under administration. Under administration the corporation may continue trading, but it is run by an accredited independent administrator who runs the company not for profit, but for the resolution of debt.

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Administrative Law

The rules governing the validity of decisions made by public officials, their delegates and their agents. Agents include companies acting on contract to administer a statutory regime.

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Admissibility

The status of any fact presented in evidence, relating to whether a court is lawfully able to consider it. For instance, if evidence originates from a person who is not at court to testify to it themselves, then it is inadmissible as hearsay. Other rules of evidence also govern admissibility.

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Adverse possession

A right granted to a person occupying the land of another without the title holder’s knowledge or consent, constantly for a period of 15 years. The occupant may claim full legal title to the entire property.

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Affidavit

A written statement of evidence, made under oath before a notary public, lawyer or other authorised officer. Similar to a signed statement, but of greater worth as evidence. Affidavits are required as part of a brief of evidence before a court.

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Agent

An independent person or company acting under authority on behalf of another. Eg: an insurance broker acting for an insurance client, or an employee of a government body making decisions on behalf of the Crown, affecting members of the public. Agents generally have the rights and responsibilities of their client or principal, with respect to the subject of their appointment (their scope of duty).

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Alternative Dispute Resolution (ADR)

 A range of methods for settlement of legal disputes without going to the trouble and expense of litigation. Common forms of ADR include mediation, conciliation and arbitration.

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Appeal

An application to a higher court to review a decision of a lower court or tribunal. An appeal from a trial decision of any court may be made to the Federal Court, or Supreme Court.

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Appellant

A party to a court case who lodges an appeal.

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Arm’s length

The description of the relationship between parties to a valid contract. They must be independent of each other and must not have a special relationship. Thus courts are disinclined to find a contract in existence between family members, or where there is a severe power imbalance exists, in spite of any written evidence.

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Assign

To transfer to another person – the assignee – all or some of the rights and obligations held by the assignor, under a contract. Noun: Assignment.

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Bailment

A form of property right used regularly by repair services and suchlike which take temporary possession of a chattel they with perform work on. The bailee (the service provider) has a right to retain the item of property until payment is made. More generally, a bailment may leverage a demand for some other obligation to be performed.

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Bar

Collective term referring to all barristers and their profession.

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Barrister

 A member of the legal profession who argues their clients’ cases at court. Compare with Solicitor.

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Beneficiary

A person or corporation who has been granted property rights over property or money held in trust. While the settlor had original control over the subject property, and while the trustee holds the legal title to it, the beneficiary has a form of ownership called equitable title. As long as the beneficiary’s equitable title remains, the relevant property cannot be interfered with.

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Bilateral contract

A contract formed by the exchange of promises. This includes not only contract whose terms (express or implied) are the result of negotiation or cooperative arrangements, but also standard form contracts written by only one party. See also unilateral contract. The law is the same for unilateral and bilateral contracts.

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Case law

Law developed by courts through the issuance of judgments. See also Common law, Equity. Different to Statutory Law.

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Cause of action

The law on which a plaintiff’s case is based.

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Causation

The link between the harm incurred by the plaintiff and the actions or omissions of the defendant. If the causation is indirect, the plaintiff must show that a chain of events led, without any assistance from other parties to the harm incurred. Causation is relevant in contract and tort cases.

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Caveat

Latin: Beware. A notice to holders of proprietary rights not to perform certain actions with respect to the subject property, pending a court decision. Such action include registration of further proprietary interests. A real property registered in the Torrens system has a caveat recorded on the register which results in actions concerning the property register to result in notification going to the holder of the caveat so that the holder may bring court action if they wish.

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Chattels

Items of property other than real property. Synonym: goods.

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Citizen's Arrest

The act of a private individual (not necessarily a citizen) arresting a criminal offender or suspect. Although it is recognised at common law, each state and territory in Australia has enacted legislation which provides variants on the common law principle. It is commonly required that the arrested suspect be handed over to police.

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Civil Law

Laws regulating the behaviour of individuals or organisations toward each other. Distinct from Criminal Law.

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Class Action

A court proceeding in which many plaintiffs exist. Commonly used when a large company or government is alleged to have wronged many people. Also known as representative proceedings.

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Coincidence

A type of evidence identifying two or more events bearing similarities in the events and/or surrounding circumstances. In such evidence it would be alleged that it is improbable that the events occurred coincidentally. Such evidence can only be admitted under certain strict circumstances.

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Collateral Contract

When a contract is formed one party may find it necessary to induce the other party to enter the contract. To do so they may make an entirely separate offer to be fulfilled upon execution of the primary contract. This offer and acceptance is a collateral contract. Acceptance of the collateral contract is constituted in execution of the primary contract.

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Common Law

A form of case law. This term is sometimes used to describe all case law. Common law is distinguished by lawyers from Equity on the basis of its tendency to require strict observance of formalities.

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Commissioner

A person imbued with power to be exercised on behalf of the Crown, with respect to specific subject matter. A commissioner is generally able to appoint agents to act on their behalf, and may also be authorised by statute to appoint delegates.

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Confession

A type of admission in which a criminal defendant confirms their guilt of an offence.

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Consent

Permission given by a person to allow an act or omission that would otherwise be an unlawful imposition on their personal rights. It is of great significance that consent can be implied, such as by continuing to tolerate an imposition, or by customary expectations on people in the consentor’s position. See also licence.

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Consideration

Anything performed in pursuance of a contractual obligation. Thus in a normal contact of sale, the consideration of the seller is passage of goods and the consideration of the buyer is payment of money. In a service contract, it is the performance of the required service. Performance must fit what is stipulated in the terms. It may involve abstaining from something the party would otherwise do.

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Constructive Trust

The constructive trust is a tool used by courts and brought into being by them when resolving issues that look like a breach of equity. If person A accepts any property right, or work done to enhance the value of any kind of property, or somehow leads B to expect benefit for things that they do, then A owes B accordingly. What is owed may be a share in the enhanced property, or a thing somehow commensurate in value to the things done. Not to be confused with a contract.

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Contract

1: An agreement having certainty of terms, reached out of free will between two parties, and setting out rights and obligations on both sides. Contacts can be written, verbal or implied by conduct. They usually relate to commercial transactions, but can be non-commercial. Rights and obligations may be proprietary or personal in nature.

2: A body of law dealing with the formation, execution and termination of contracts.

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Contributory Negligence

Where the plaintiff in an action for negligence contributes by neglectful, reckless or wilful action or omission, to the harm they have suffered. They are denied some or all of the compensatory damages to which they would otherwise be entitled.

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Copyright

A right that gives the author of “work,” (be it an art work or writing of any kind) for life plus 70 years, the exclusive ownership of the work and control over what others may do with it.

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Corporation

Any organisation formally constituted and registered, such that it has legal personality. It can sue and be sued in its own name and hold and transfer property in its own name. Type of corporations include public companies, private companies, not-for-profit organisations and owners’ corporations.

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Counsel

Synonym for barrister or solicitor.

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Counter Claim

A claim where the defendant in the original claim lodges a claim against the original plaintiff. Effectively both parties are defending and claiming at the same time.

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Criminal Law

Laws concerned with the conduct of individuals in terms of the right of the government to maintain order in society. While most criminal offences are against other individuals or companies, it is the usually government which prosecutes.

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Cross Claim

Where there are co-defendants or co-plaintiffs, one may sue the other irrespective of the existence of the original claim. A cross claim has to be closely connected to what is in dispute in the original claim or in a counter claim.

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Crown

The source of paramount government authority in a monarchy, personified in the ruling monarch. See also State.

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Damages

Harm done by one party to another; monetary compensation claimed to settle a legal dispute. Compensatory damages are calculated to cover the repair of harm done or to aid in coping with irreparable harm. Exemplary damages are designed to punish the defendant for bad behaviour. Damages is the most common form of remedy sought.

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Deed

A written document declaring obligations assented to or actions thereby executed. A deed is sworn before a solicitor and signed by the executor. A well known, but increasingly obsolete example is the title deed defining the ownership of real estate. Other deeds may have an effect like a contract, except that it is one-sided.

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Defence

Commonly, the argument of a defendant/respondent. More literally, a document putting the case of a defendant/respondent. Each allegation made by the plaintiff/applicant in their statement of claim must be answered in the defence. Points of disagreement between the parties are referred to as “issues”. See also Reply.

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Defendant

The individual or corporation against whom/which legal proceedings are commenced. Also known as a respondent – the choice of terminology depends on which court will hear the matter. In an appeal it is the party who/which did not commence the appeal. The defendant/respondent is normally required to commence their response by filing a document called a defence. Formerly the defendant to criminal proceedings was called the Accused.

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Delegate

A person imbued with authority to act on behalf of the government, often under a commissioner, to make decisions on behalf of the Crown. A delegate differs from a government agent in that they wield power in their own name rather than in the name of a commissioner or other such person.

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Determination of fact                                 

Also finding of fact. Court findings as to the meaning of facts presented to it. Determinations of fact cannot be appealed against.

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Discovery

A process initiated by solicitors in the interlocutory stage of proceedings. During discovery the parties must inform each other of documents they have in their possession which relate to the matters in dispute. The parties’ representatives then physically collect and copy those documents.

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Duty of Care

A duty incumbent on all persons under negligence law to protect the well-being of all other persons who may be affected by one’s own actions or omissions. A plaintiff must prove the defendant had a duty of care with respect to them in order to establish a negligence claim.

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Easement

A right of one party with respect to another party’s property, so as to benefit their own property. Typically easements allow for an access route, but may ensure non-obstruction of light, or other recognised restrictions. An easement must involve a property which benefits from it, a property which is imposed upon by it, and the two properties must be owned by different parties. There are various established methods of creating an easement.

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Equitable title

A partial (or virtually entire) right to control an item of property. Equitable title can be obtained through payment enabling the title holder to obtain the title, or work done to improve the value of the property. The size of an equitable title equals the proportion of payment or work to the total value.

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Estoppel

A rule of equity which prevents a person from asserting common law rights to the unfair disadvantage of another person. Only in Australia can it be used as a cause of action. It is of particular value where a party invests money in preparation during the negotiation of a contract, but the other party pulls out at the last moment.

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Equity

The body of case law applied to situations where the strict formalities of common law would bring injustice. The rules of equity centre around acting fairly and upholding agreements. In international law equity refers only to the general concept of fairness.

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Equitable

The adjective of equity.

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Equitable title

A form of property right deriving from the contribution of purchase funds, from the declaration or promise of the legal title holder, or from the free-of-charge application of labour and suchlike to improve the value of the item of property. Equitable title revolves around the basic principles underlying equity law and imparts a right to benefit from the item such that the legal title holder’s rights are compromised. Equitable title holders are entitled to a proportional payout upon sale of the property. Types of equitable title include a plain equitable title and the rights of trust beneficiaries.

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Estate

Estate is used by lawyers a little differently to its common usage in the term, “real estate.” In law estate refers to particular kinds of proprietary interests which are recognised historically by common law. These include estate in fee simple and leasehold estate. The defining characteristic is that each is capable of vesting immediately in the executor of a deceased estate, as trustee.

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Estate in fee simple

Land and all buildings and other fixtures on it. An estate in fee simple is comprised of the legal title (as recorded on the Torrens system register or as recorded in the title deed), and the right to control and benefit from the property, which arise for equitable title holders.

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Execution (of contract, deed or other instrument)

The moment at which an undertaking comes into force is the moment of execution. It may involve the final signature, the finalisation of an agreement, or sealing and delivery of a deed, or the fulfilment of a condition.

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Executory Contract

A contract which has been agreed upon, but which has yet to be performed.

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Exhibit

A document or item to be produced at court for the purpose of becoming part of the evidence in a proceeding.

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Express trust

A trust formed explicitly in writing, generally in the form of a deed. The description of the subject property, the identity of the beneficiaries, the manner of distribution of the property and the conditions affecting distribution are all to be stipulated in the written document.

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Fee simple

Land and all buildings and other fixtures on it. An estate in fee simple is comprised of the legal title (as recorded on the Torrens system register or as recorded in the title deed), and the right to control and benefit from the property, which arise for equitable title holders. The same as estate in fee simple.

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Fiduciary

A person who takes on responsibility over the interests of another, whose special skills or powerful position result in a special degree of reliance by the client, or principal. Equity recognises certain professions and roles as involving fiduciary duties, such as trustee, company director, solicitor, teacher, and medical doctor. Fiduciaries have equitable duties including not to make an unauthorised profit from their position and to maintain the confidentiality of information.

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Fixtures

Any object permanently attached to land or buildings, or so difficult to remove as to be effectively fixed. Thus trees, buildings, fences and walls are fixtures to land. Some furnishings of massive weight, or built in so that removal is extremely difficult, are considered to be fixtures.

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Foreseeability

A factor to be proven by a plaintiff bringing a negligence claim. The harm incurred must be a reasonably foreseeable result of the relevant breach of the defendant’s duty of care in order for the negligence claim to succeed.

Freehold estate

In modern times freehold refers simply to the ownership of land. Originally, a medieval concept grouping certain types of land ownership, including the estate in fee simple.

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Frustration

The status of a contract where a party is, through no fault of their own, totally unable to perform their obligations any longer, or where continued performance will inexorably lead to something alien to the intentions the parties had at first. This would be a common experience after a natural disaster. Courts rescind frustrated contracts.

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Full Court

Three or more judges sitting together to hear a proceeding.

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Gratuitous

A gift given or service rendered without expectation of return, is said to have been given or rendered gratuitously. Compare with contract, estoppel and constructive trust.

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Hearing

That part of a proceeding where the parties present evidence and submissions to a judicial body such as a court, before a judge, magistrate or tribunal member.

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Hearsay

An important rule of evidence disallowing a court from considering evidence that is not presented by the originator of the evidence. Thus a person who has seen an act take place or who has written a document needs to be presented to the court to testify under oath. Second hand witnesses can only be heard to confirm that such a thing has been talked about or that such a document exists. The one exception is where the originator of key evidence is deceased.

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Illusory consideration

A contract must have certainty as to the obligations and rights assigned to the parties. Vagueness as to what a party can expect to receive is termed illusory consideration and voids a contract.

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Implied consent

Consent which is deemed to have been given, due to the behaviour of the consentor, because of customary expectations, or for the sake of commercial convenience. Implied consent cannot contradict the terms of a written contract directly, or established laws.

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Implied Trust

A trust whose existence is inferred by various kinds of evidence as to the settlor’s intention, but not clearly expounded in writing. The settlor’s verbal remarks and conduct can form part of such evidence. The intention to form a trust, what the subject property is, who the beneficiaries are and the manner of distribution still need to be ascertainable with certainty.

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Inalienable

Impossible to take away. Non-transferrable.

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Incapacity

Inability to function normally. An incapacitated person who cannot manage their own affairs cannot form the degree of informed intention required to assent to contractual obligations. Such incapacity may result from medical or genetic issues or from the influence of intoxicating substances. Thus any contract with them is vitiated.  An employee incapacitated due to their employment may be entitled to WorkCover compensation.

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In lieu

Latin: In place of.

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Injunction

A court order making a person do, or refrain from doing, something. This can be given as a final remedy, or as a temporary measure to ensure that the plaintiff is not further harmed while awaiting trial.

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Insolvency

The status of a corporation where it is no longer able to pay its financial obligations in full, when they fall due. Relevant financial obligations can be of any lawful kind, not merely repayments of loans. A corporation must cease operations as soon as the directors reasonably believe insolvency has been reached. Types of insolvency include administration, receivership, receiver-management and liquidation.

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Interlocutory

The interlocutory stage of proceedings fore-runs a court trial. At this stage solicitors on either side communicate and exchange evidence. Claims are often settled out of court at this stage.

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Interlocutory proceedings

Court proceeding dealing with a specific issue, prior to the giving of the final hearing and decision. An interlocutory application may be for interim relief (such as an injunction) or in relation to a procedural step (such as discovery).

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Interrogatory

A method for obtaining evidence. One solicitor serves the other party's solicitor with a document containing a list of questions. The party served is to answer the questions under oath and in writing.

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Invitation to Treat

Any indication that a contract is available to take up. It may be the offeror or offeree who makes the invitation. Examples: advertisements, display of goods for sale.

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Joinder of documents

The conceptual connection of documents which relate to the one contract, so as to create a unified set of terms. It must be very clear that the separate documents are connected and refer to the same contractual relationship, and all essential terms of the contract must be present in the documents.

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Joint tenants/ joint owners

A joint tenancy is where tenants or owners hold equal shares in, and are co-holders of the one, real property estate. Their interests are not willable; when one dies or ceases to exist, the other(s) inherit the discontinued interest automatically. No one tenant can act independently so as to bind the other(s) to an arrangement of their own. Joint tenants cannot exclude their colleagues from any part or benefit of the property. See also tenants in common.

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Judgment

The reasoning of a judge and orders made by them after a hearing or appeal. A trial judgement sets out both the evidence of the parties usually condensed into a single account as accepted by the judge. It then deals with issues of law and how the judge applies the law to the situation. A judgment is said to be ‘reserved’ (as opposed to ‘ex tempore’) when the Court postpones the delivery of the judgment to a later date to allow time to consider the evidence and submissions. Judgments become part of the body of case law and are referred to by lawyers and judges in later cases.

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Jurisdiction

The extent of legal authority of a Court or of any agent of the Government to apply the law. Jurisdiction exists with respect to geographic territory, subject matter, the body of law involved, the type of court proceedings, and the level of invested authority.

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Jurisprudence

The study and philosophy of the legal system.

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Lease / Leasehold estate

A property interest in return for payments of rent (or otherwise as agreed), entitling the leasholder to exclusive possession of land and buildings on it, and imparting a certain range of rights and obligations. A lease can only be over an entire property title, unless there are strata within the title, in which case the lease concerns a particular stratum. The parties are entitled to privity of estate, and the tenant is entitled to unrestricted access to the property. The landlord cannot enter the property without the tenant’s consent, or interfere with the tenant’s agreed usage of the property. Failing these conditions in the agreement, it is not a leasehold estate, but a licence to occupy.

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Legal personality

The status of being recognised by the law as a person, in terms that one can sue and be sued in one’s own name and hold and transfer property in one’s own name. Animals, loosely associated groups and geographic places do not have legal personality.

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Legal title

The title held by the ultimate owner of an item of property. On its own, legal title amounts only to nominal ownership, but it is normally accompanied by full and total rights to control the item of property. Legal title is normally derived from purchasing the property in one’s own name using one’s own money. Competing rights exist which compromise the rights of the legal title holder – see property rights. In the case of real property, legal title is registered (under the Torrens system) or declared in the form of a deed. It cannot be obtained without a written document: see Statute of Frauds.

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Legal title to goods is obtained simply by payment to the previous holder of legal title. The right of control obtained by transfer of legal title is compromised by the existence of other forms of property rights held by other parties.

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Legislation

A general term referring both to Acts of Parliament and to Regulations. Synonym: Statute.

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Liability

The status of owing a legal obligation. Having committed an unlawful act a person becomes liabile to another to pay damages, to pay a fine (to the crown/state), or to incur a court order such as an injunction or similar.

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Licence

A personal right granted to a person (the licensee) to do, or continue doing, a certain thing that would otherwise be unlawful. In particular, such as to enter or remain on the licensor’s property for a specific purpose. A licence may often be granted in writing for regular payments, as is normal in agreements between shopping centres and the retailers occupying premises inside them. It is also implied by conduct, either in return for an up-front payment, or granted gratuitously, as is common when patrons enter an entertainment or sporting venues, a shop, or any private property that is unobstructed. A licence can be revoked if the licensee breaches the reasonable expectations or written conditions as to their conduct, held by the licensor. Compare with lease.

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Lien

A form of equitable property right used to assert security over property to ensure repayment of money or performance of an obligation. This includes the more specific rights of real estate mortgage and chattel mortgage. Then there are also bailments. The party receiving the property right is the lienee and the party giving it is the lienor.

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Another usage of liens is when a company takes a security interest over the shares of any of its members who are indebted to it for calls on other shares. Synonym: security interest.

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Litigant

Any party to a matter before a court.

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Litigation

The process of bringing any matter before a court and of arguing a case at court. Litigation commences with an interlocutory phase, and then proceeds to trial, either by judge alone, or by judge and jury. It may then go on to appeal and even a second appeal to the High Court.

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Limitation period

A period set as a maximum delay in bringing a matter to court. The limitation period for most civil actions is six years, but limitation periods vary considerably for different kinds of matters and in different jurisdictions. There is no limitation period on serious criminal law matters. See also Statute of Limitations.

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Liquidation

A liquidator may be appointed by a court to sell the assets of a corporation so that all of its financial obligations are met as fully as possible. Employees gain first priority, then creditors, then shareholders. For practical reasons payouts are rarely or never the full amount owing. Liquidation almost always results in termination of the corporation’s registration with ASIC.

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Mediation

A process in which an impartial third party (the mediator) assists the opposing parties to bring about an agreed settlement or compromise, without requiring a decision of the Court. The outcome has no binding force, unless the parties mutually assent to form a contract requiring their adherence. (They may then sue for breach). Mediation is popular with the legal fraternity as it involves less cost, less stress and antagonism, and less commitment of time than litigation.

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Mitigation of loss

Action taken to minimise losses incurred due to a breach of contract. A person suing for damages resulting from a breach of contract is expected to take reasonable steps to mitigate their losses rather than to allow the sum claimable to be maximised.

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Mortgage

A security interest over an item of property, taken when money is lent. This terminology is applicable whether the related transaction is the sale of goods or the sale of real estate, whether the agreement is entered at the instigation of the purchaser or seller. The lender is mortgagee and the borrower (customer) is mortgagor.

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Natural justice

The right to be given a fair hearing, to be able to present your case, and receive an unbiased and properly informed decision. Synonym: procedural fairness. See also the right to be heard.

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Negligence

A branch of tort law based on a concept that all persons have a duty of care toward each other, and requiring that harm incurred due to the failure of such duty be compensated. Factors to be considered in establishing or defending a negligence claim are: duty of care, foreseeability, causation, contributory negligence and voluntary assumption of risk.

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Offeror

A party to a contract who initiates the transaction. Normally it is the dominant party – the provider of goods or services, or the employer. In retail sales where goods are available on shelves for customers to select, the customer is the offeror. The rights of parties are not affected by being offeror or offeree.

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Offeree

A party to a contract who responds to the offer by accepting or declining the offer. Normally it is the subservient party – the purchaser of goods or services or the employee. In retail sales where goods are available on shelves for customers to select, the seller is the offeree. The rights of parties are not affected by being offeror or offeree.

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Parties

People involved in a court case. Applicants, appellants, respondents, defendants, are parties to a matter.

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Performance

1: Any act done as a contractual obligation. Commonly used in conjunction with the term, consideration. When consideration is performed to a required extent it give rise to rights which have been agreed as correlating with it.

2: An act done in response to a court order for specific performance. This is an order given in response to equitable claims, including claims of a breach of contract where the counter-party has not done all that is required under the contract. A specific performance order stipulates what is to be done by the party concerned so as to complete all equitable obligations.

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Person

Either a natural person (a human) or a corporation. A person can sue and be sued in their own name and hold and transfer property in their own name. Synonym: person at law.

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Personal

Adjective for person. Used by lawyers to describe the nature of rights and obligations, as opposed to proprietary.

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Plaintiff

A party who initiates a civil action with a petition (ie: complaint).

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Pleading

A formal written document detailing an applicant's claim or a respondent's defence. All of the material facts the parties allege and the issues in dispute are defined in the pleadings. The pleadings define the scope of the proposed trial. They include a statement of claim, statement of cross claim, defence and reply. It does not include the originating application, any interlocutory application or affidavits.

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Prima facie case

Latin: 'at first sight.' A case having such strong merit that it has a real chance of success.

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Principal

A person or company that, as a client, contracts an agent or fiduciary. Thus the client of a solicitor is their principal.

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Privity of estate

The relationship between landlord and tenant, as a unique and un-transferrable relationship. Unlike other contracts, a lease cannot be re-assigned to another party. It must be annulled with compensation or allowed to run its full term, unless consent to transfer is granted.

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Probative (value)

Evidence brought to court may be of varying degrees of importance to proving or disproving the facts in question. Evidence of great significance in this is described as having high probative value. Such evidence is more likely to be admitted under certain specific rules of evidence.

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Procedural Fairness

The right to be given a fair hearing, to be able to present your case, and receive an unbiased and properly informed decision. Synonym: natural justice. See also the right to be heard.

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Proceeding

The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the judgment.

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Property

Anything capable of being owned by a person at law. Property includes goods and real estate. Lawyers view property in terms of the rights of ownership adhering to a thing and look into the combination of different kinds of rights held by different parties, which may coincide in the one item of property.

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Property rights

A right to control an item of property. Property rights include legal titles, equitable titles, liens, mortgages, bailments, leases, trusts, easements, and caveats.

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Proprietary

Adjective for property. Used by lawyers when describing the nature of a right or obligation, as opposed to personal rights and obligations. (Legal action in rem can be brought against a person with respect to their proprietary interests, thus creating proprietary obligations if successful).

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Real property

Any property related to land or buildings, as well as any fixtures thereupon.

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Reasonable Man

A principle which appears throughout common law. The standard of behaviour required of a person in many situations is that of a reasonable man (or reasonable person). It based on a concept of a person of ordinary intellectual capacity and common emotional and cultural traits. However the principle is not unitary in that a reasonable man is generally expected to read and adhere to notices with efficiency, but is not expected to exercise sensible care for themselves where notices are deceptive or absent.

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Receiver Manager

A receiver (see receivership, below) appointed to an insolvent corporation, who also manages the corporation’s regular business. This is done where continued trading is desirable.

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Receivership

A creditor of a corporation may appoint a receiver or receiver manager to take control over a corporation in a state of insolvency so as to recover property subject to a security interest. This occurs often when a business has obtained finance through a mortgage, but has failed, or is close to failing, to repay its debt. A receiver has nothing to do with other assets of the company or its other financial obligations.

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Remainder

The remainder of a property is the property rights which are left over after all lawful claims to it are accounted for.  The remainder may automatically vest in one of the parties.

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Regulations

A form of legislation, also known as subordinate legislation, which is created by government departments and bodies within the scope of their authorisation to do so. Authorisation comes from Acts of Parliament which expressly grant authorisation.

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Remedy

The resolution to a matter given by a court, after finding in favour of the plaintiff/applicant. The remedy may be in the form of monetary damages, an injunction, specific performance, or some other order authorised by statute.

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Rescind

A remedy given for contracts that are frustrated or where there is total failure of consideration. Noun: rescission.

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Resulting Trust

A form of trust deduced not from a direct intention but from the conspiracy of circumstances. The word, “result” here takes an alternative derivation from the Latin root, and means to spring back. A resulting trust springs into being when one person is given possession of another person’s property with the intention that it be used for another purpose, and the purpose is defeated somehow. For example, person A gives cash to person B and has them go to a shop to buy something, but the shop is closed. A’s intention was not to make a gift to B, so B does not have full rights. When the trust fails B must allow A to resume possession.

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Reply

Part of the documentation that comprises a pleading. In the interlocutory stage of proceedings, after a defendant files their defence (in response to a statement of claim), the plaintiff may then respond to the defence with a reply.

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Representative Proceeding

A court proceeding in which many plaintiffs exist. Commonly used when a large company or government is alleged to have wronged many people. Also known as a class action.

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Respondent

The individual or corporation against whom/which legal proceedings are commenced. Also known as a defendant – the choice of terminology depends on which court will hear the matter. In an appeal it is the party who/which did not commence the appeal.

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Security interest

A proprietary right over any item of property, allowing the holder to claim the item and/or sell it, retaining the proceeds, upon failure to repay a debt or perform an obligation. Synonym: lien.

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Settlor

A person or corporation who sets up a trust over trust property. The settlor’s declarations or conduct must define the basic trust parameters with certainty. They then surrender legal title to the trustee and bind them to distribute the trust property to the beneficiaries.

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Specific Performance

An order given by a court in response to equitable claims, including claims of a breach of contract where the counter-party has not done all that is required under the contract. A specific performance order stipulates what is to be done by the party concerned so as to complete all equitable obligations.

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Standing

The fact of the plaintiff having standing means that the plaintiff has the right to sue on the particular matter. A person suing on behalf of another would lack standing unless they have a particular relationship, such as parenthood or power of attorney.

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State

The republican alternative to the Crown, as the source of paramount government authority. The state’s power in republics may be vested ultimately in the office of President, but dispersion of power may be too great to identify any single ultimate authority.

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Statement of claim

A set of documents in which the applicant/plaintiff alleges all of the material facts that show their cause of action and its enforceability against the respondent/defendant. The statement of claim may formulate any question of law that the Court will be asked to determine and must set out the court orders sought by the applicant against the respondent.

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Statute

A general term referring both to Acts of Parliament and to Regulations. Synonym: legislation.

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Statute of Frauds

A group of statutory laws require a written, signed document to validate certain contractual rights. These include the legal title to real property and marriage. Each of these laws derive from the antecedent Statute of Frauds, an Act of the British Parliament of 1677, which dealt with problems arising from a rash fraudulent claims. Where a party has failed to follow the writing requirement, or where the requirement itself is used fraudulently, claims under the rules of equity can provide them with a remedy.

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Statute of Limitations

A group of statutory laws set limitation periods for the bringing of action in the civil law jurisdiction. These laws derive from the antecedent Statute of Limitations, an Act of the British Parliament of 1623. Today the time limit for most civil actions is six years, but limitation periods vary considerably for different kinds of matters and in different jurisdictions. There is no limitation period on serious criminal law matters.

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Subpoena

A subpoena compels the appearance of a person at a trial to testify and to produce documents. A subpoena is a court order. Therefore if properly issued and disobeyed, the recipient could be in contempt of court.

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Summons

A document issued by a court directing a person to appear before it.

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Sunset clause

A clause in a contract or other document giving a final date after which no remedy may be sought, regardless of the grounds of complaint.

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Tenant

The holder of a leasehold estate. The term is also used occasionally for the holder of an estate in fee simple.

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Tenants in common / Owners in common

Owners of land - not necessarily leaseholders, but any estate holders – who occupy land together. Tenants in common can own the property in differing proportions to each other. Their estate is willable at individual initiative. Tenancies in common operate as separate tenancies over the one title. No one tenant can act independently so as to bind the other(s) to an arrangement of their own. Tenants in common cannot exclude their colleagues from any part or benefit of the property. See also joint tenants.

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Tendency

A type of evidence which includes evidence of past acts by a defendant. Such is used to demonstrate a pattern of behaviour making it more likely that the defendant committed the act under question, but can only be admitted under strict circumstances.

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Trust

A legal mechanism used in asserting the rights of other parties over one’s own property. Trust rights supersede most other lawful claims on property. While the settlor of the trust may have a conflicting legal duty with respect to the trust property (eg: a tax liability), the existence of beneficiaries who are innocent and who lack such duties, prevents the being fulfilled. A means of transferring a gift at a delay. There are a variety of trusts: express trust, implied trust, resulting trust, constructive trust, and Quistclose trust.

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Trustee

Person or corporation who is made responsible for a trust. The trustee holds legal title to the trust property, but equitable title is held by the beneficiaries.

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Tort

A branch of law coving day-to-day actions by persons in relation to each other. It principle branches are negligence, trespass, action on the case, nuisance and defamation.

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Torrens system

A government-administered system for the recording and management of real property titles, as opposed to the much older deed system. In Australia approximately 98 percent of titles are recorded on the Torrens system.  The system overcomes many inefficiencies and vulnerabilities of the deed system. Created in South Australia in the 19th Century, and named after its inventor, the system is now in use throughout the world.

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Trial

A court hearing characterised by judicial examination and determination of issues between parties, either by judge alone, or by jury. When a jury is present, the jury must determine the meaning of facts presented to it. The application of law is the solely the role of the judge. When there is no jury, the judge also makes findings as to the case facts. Trial by judge alone is encouraged when case facts are highly complex or esoteric.

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Tribunal

A specialised adjudication body. The term is generally used to refer to administrative dispute resolution bodies other than courts. Tribunals are used in Alternative Dispute Resolution, and in international disputes.

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Trespass

A branch of Tort law based on a concept of a right of inviolability, where the slightest touch or breach is actionable.

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Ultra vires

Latin: Beyond power. Where a body or decision maker has acted outside its jurisdiction, its decision or action is deemed void. This is especially relevant in Administrative Law when challenging the decisions of government officers and authorities.

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Unilateral contract

A contract comprised of terms that are set by one party only, such as a reward notice. A significant aspect is that the offeree does not need to give notice of their acceptance, only to perform the action required, to entitle them to the consideration on offer. The law is the same for unilateral and bilateral contracts.

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Vitiation

Under certain conditions a contract can be rendered completely void, in such manner as to recognise that it never even existed in the first place. Conditions include the mental incapacity or age of the party and serious duress placed on them to agree to the contract. The remedy given by courts is rescission.

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Voir Dire

Old French: Truly say. Often characterised as a ‘trial within a trial.’ When a dispute as to the admissibility of evidence or the competency of a juror or witness is complex and cannot be settled quickly, a miniature trial is convened in which this one question is addressed. In a trial by jury, the jury is excused so that the voir dire can be heard by judge alone.

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Voluntary assumption of risk

A defence to a claim of negligence in which the defendant argued that the plaintiff knew and accepted the risk which led to the harm they incurred. This is applicable in situations where the risks are obvious, such as in competitive sport, but it does not extend beyond such risks as are normally to be expected.

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Warranty

1: A term of a contract, either implied or express, or imposed by statute, requiring reparation by the manufacturer or service provider for failure of a product or service. Repair, replacement, or a new rendering of service is normally required.

2: A term of a contract of minor significance, whose breach does not have any serious effect on the validity or acceptability of the performance of consideration. Rescission is not available as a court remedy, but damages and specific performance are available.

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Writ

A document from a court, ordering a person or corporation to do something or refrain from doing something.

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