Section 25(6) of the Judicature Act 1873: A ‘procedural’ approach

• Main Author: THAM, Chee Ho
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2023
• Subjects: Common Law; Jurisprudence
• Online Access: https://ink.library.smu.edu.sg/sol_research/4318; https://ink.library.smu.edu.sg/context/sol_research/article/6276/viewcontent/9781509960101.ch_003_av.pdf
• Institution: Singapore Management University

Section 25(6) was re-enacted as section 136(1), replacing the law French ‘chose in action’ with the more Anglo-Saxon ‘thing in action’, together with other minor differences, but to no substantial effect. Largely unchanged, the construct now found in section 136(1) has been part of English law for 150 years. However, understanding what section 136(1) does, and how it does it, remains muddled. On the one hand, given Lord Macnaghten’s pointed observation in William Brandt’s Sons v Dunlop Rubber that, ‘[section 25(6)] does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree’, Smith & Leslie takes the view that English law does not follow the Australian position, suggesting that Olsson v Dyson, the leading Australian decision, was wrongly decided. On the other, Guest on Assignment suggests that ‘[t]he position to be adopted in English law awaits resolution by the courts’. Snell’s Equity is also equivocal. This chapter agrees with Smith & Leslie that English law justifiably takes a different view of sections 25(6) and 136(1) from their Australian equivalents. This chapter explains how section 136(1), like section 25(6), operates at what may be termed a ‘non-substantive’ or ‘procedural’ level to effect a slightly non-obvious manner of ‘transfer’.