- In Austino Wentworthville Pty Limited v Metroland Australia Limited [2013] NSWCA 59 Barrett J summed up what he considered to constitute an absolute assignment:
- An “absolute” assignment is one that is unconditional and does not attempt to affect part only of the chose in action.
- The fact that an assignment otherwise absolute is accompanied by an express proviso for redemption, an implied right of redemption or the creation of a trust in respect of future proceeds does not deprive it of its absolute character.
- An assignment by way of charge is one the effect of which is to give a right of payment out of the subject matter assigned without outright transfer of that subject matter. Such an assignment occurs when, for example, there is a transfer of a right to be paid out of a particular fund or of so much of a debt as is sufficient to satisfy a future indebtedness.
- The character of the assignment must be ascertained from the terms and effect of the instrument, according to the construction of it as a whole.
William A.J. Higgs PhD