Authors Name: 
Oscar Han
University: 
Monash University
Category: 
Law
Highly commended

Should the judgment of Laws LJ in Manchester Airport plc v Dutton [2000] 1 QB 133 be adopted as the law in Victoria?

In the context of property and contract law, this article attempts to refine the legal basis and scope of enforceability of a contractual licence. It asks whether the novel UK case of Manchester Airport plc v Dutton [2000] 1 QB 133 should be adopted as the law in the Australian state of Victoria; it argues in the negative.    Traditionally, a contractual right was enforceable only against parties to the contract under which that right arose. In contrast, a property right was traditionally enforceable against the entire world. Thus, the distinction between a contractual right and property right lay in the extent to which each could be enforced against other parties. Where, however, the subject of a contractual right has involved real property, the distinction between contract and property has become blurred. In particular courts have had to decide whether a contractual licence, which provides a licensee with permission to enter land for a specific purpose, can give rise to rights against third parties—rights more simply described as ‘property rights’.    Dutton allowed a contractual licence to transcend its traditional status of a mere contractual right and take on the more expansive status of a property right, so as to be effective against third parties in general. This article, however, contends that Dutton should not be adopted in Victoria on two key grounds: (a) the Victorian common law is potentially capable of enforcing a contractual licence against specific third parties even without adopting the radical reasoning in Dutton and (b) the reasoning in Dutton itself is, with respect, deficient and susceptible to being overruled as it leaves unanswered a number of crucial questions.