131 EXAM PREP- Finders + Stat Intp PDF

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FINDERS Finders’ Test as per Parker v British Airways 1. Was the chattel lost or abandoned? 2. Did the finder take possession by having physical control and intent to control? Grafstein 3. Did trespass or dishonest intent limit the finder’s rights? Herbert 4. If the finder was an employee, did they find the chattel on behalf of their employer? Steel Tube 5. Did the finder fulfil their obligation to the true owner? Bridges 1.

Was the chattel lost or abandoned? Moffat v Kazana The true owner of a chattel found on land has a superior title to that chattel A true owner can lose their title in three ways: - Abandon o Requires an intent to abandon and the physical act - Gift o Intent and handing over to gift - Sale o In property law, you don’t sell tings inside a house, you sell the house itself; the sale in Moffat was of the house and the property around it

2.

Did the finder take possession by having physical control or intent to control? Parker v British Airways Board Both physical and mental control need to be considered: You need an intent to control, which coincides with physical control (Graftsein v Holme) o In Parker, British Airways showed physical control but not intent to control; they needed to make it known lost articles were to be handed in o The intent assumed when it is a bank vault/private home/room which has strict controlled access (OBITER from Parker) o Presumption of possession of contents Graftstein: ‘it contains tools – put it on the shelf’ o This showed mental control and interest in the contents of the box § He had possession when Holmes came to him Handing the chattel over to the occupier doesn’t weaken the rights of the finder (Bridges v Hawksworth)

3.

Did the finder come into possession of the chattel with dishonest intent or while trespassing? Parker v British Airways Principle = stop people going onto stranger’s private property and finding chattel Was shown in Hibbert v McKiernan [1948] o Private golf course with Police office on duty to warn off trespassers o Finders trespassed onto course and found golf balls o Court § Was clear intent to exclude trespasser and occupier had prior right § Trespasser didn’t have rights The finder committing a wrong limits the rights of the finder. Trespassing: implied license o If there is a ‘keep out’ sign, the property is to be considered private.

4.

If the finder was an employee, did they find the chattel on behalf of their employer? Was it incidental or collateral to employment? Steel & Tube NZ Ltd v Hopkins Finding in course of employment or agency is done on behalf of the employer (obiter) Exceptions to this: o Where entirely incidental or

§ Steel & Tube: not incidental because steel was found during employment Collateral to employment (would not have found if not employed) § Parker: was passing through lounge, was not ‘working’; had finders rights § Were it found by a British Airways worker in lounge, this would not have been the case Found during assigned task; not incidental - Steel & Tube: Steel was found during employment, rights are with the employer o

5.

Did the finder take reasonable measures to acquaint the true owner of the finding and chattel, caring for it meanwhile? Parker v British Airways Finders have an obligation to take measures to acquaint the chattel with true owner (Bridges v Hawkesworth) - Put in lost property - Advertise The rationale is that the true owner has the best claim and the rules around finding facilitate reuniting the true owner with the goods

How to get rid of your title as a true owner: It is possible to get rid of your true owner title; these are the elements to losing the title: Abandonment: - Physically leaving something behind o Leaving something behind and forgetting about something are NOT the same thing - Abandonment requires the intent to abandon o You are no longer wanting something, and therefore you leave it Gift - Handing it over to someone or something - Having the mental intent to gift the chattel to someone Sale - Selling a house requires that you sell the building, and the permanent fixtures attatched to the house - Loose chattels in the house are not technically part of selling the property o this is as per the Property Law Act

Duties of the Finder The main obligation of the finder is that once they find the chattel, they must - take reasonable care of the chattel - make a reasonable effort to reunite the chattel with its true owner.

Occupier’s Test 1. Occupiers have prior rights if chattel is attached to or under land/buildings Sharman 2. If the chattel is on the land, the owner must manifest intent to control the chattel Grafstein, Parker 3. Did the occupier fulfil their obligation to the true owner? Bridges 1.

The occupier will have superior rights if the chattel is attached to or under land/buildings South Staffordshire Water co v Sharman 1869 The occupier of the land will have prior rights over the land if the chattel is attached to or under land/building. o Things that are found under the land are ‘priorly possessed by the occupier’ § The occupier does not need to know about the existence of the chattel Rationale: to prevent unwanted interference with the land/building/property rights in general o In Sharman, the rings that were found in the mud were classed as ‘attached or under the land’

o

Distinguished from Bridges, where the finders found the money in a public area of a shop.

2.

If the chattel is on the land, the owner must manifest intent to control the chattel For chattels that are on the land, but are not attached to the land or buildings, the occupier must manifest an intent control both the land and the things that are on it o This includes signage, indicating a request to stay off the land This also includes implied intents to control, such as: Obiter from Parker v British Airways Board - Bank Vaults - Private homes - Rooms with strictly controlled areas.

3.

Did the occupier fulfil their obligation to the true owner? Bridges v Hawkesworth Was there a reasonable attempt to reunite the chattel with it’s true owner?

FINDERS CASES: •

Rights + Duties of a finder as against the true owner of the goods Moffat v Kazan 1969

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Rights of a finder as a complete stranger Armory v Delamirie 1721

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Rights of a finder as against the occupier of the land on which the goods are found Bridges v Hawkesworth 1851 South Staffordshire Water Co v Shareman 1869 Helson v Mckenzies Ltd 1950 Grafstein v Holme & Freeman 1958 Parker v British Airways Board 1958 Steel & Tube NZ Ltd v Hopkins 1993

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Rights of a finder as against his employee Parker v British Airways Board 1982

Moffat v Kazana Finder against the true owner of the goods *Mr Moffat is acting for Mr Russell, who is the true owner of the land, but he passed away. Timeline: 1950: Mr and Mrs Russell bought the house 1961: They sold the house to Mr Kazana - When they sold the house, there was a tin of money left behind in the chimney. 1964: Mr Stokes finds the tin and takes it to the police - Stokes was doing work in the house - He found the tin, acted honestly and then took the tin into the police The police then returned the tin to Mr Kazana, and put the money into his account. Moffatt bought action to the court, on behalf of Russell. Moffat said that Russell was the true owner of the of the money and that it should go toward Rusell’s estate. Reasoning + Judgment - Mr R was the true owner based on evidence o The court accepted the evidence that Russell has the money when he lived in the house o They accepted that he put the tin of money in the roof o He was now accepted as the true owner of the money

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Mr R did not divest himself of true owner titles when he died o He did not show any intent to leave the tin can/money behind o The tin was in the chimney; that could constitute as a mistake/not know that it was there The courts found that because there was not intent of abandonment, the rights of the chattel fall with the true owner, Mr Russell.

Amory v Delamirie 1721 Rights of a finder against a complete stranger - Chimney sweep finds a jewel. He then took it to shop to try and see how much money he could get for the jewel. - The apprentice then took out the stone, and the jeweller offers 3 pence for the stone The Jeweller, a stranger, tried to take possession over the jewel by saying that the chimney sweep had not claim - The courts ruled that the finder has the best claim against all but the true owner, and therefore, the jeweller did not have any rights over the chimney sweep.

Bridges v Hawkesworth Rights of the finder against the occupier of the land on which the goods were found Notes were found on a floor of a shop. Customer handed it into the shopkeeper. - The shopkeeper tried to find the true owner by putting up notices - No one claimed the money This caused a dispute between the shopkeeper and the finder. The court ruled that if the shopkeeper had had prior possession, then he would’ve had rights, but instead in this case, the finder has the best claim above all but the true owner.

South Staffordshire Water Co v Sharman Rights of the finder against the occupier of the land on which the goods were found Sharman and his friends, employees of the SSW, were cleaning out a public pool. They found two rings under mud at the bottom of the pool. Judgment: In the judgment, the contentious issue was to do with the rights of the occupier of the land, and whether the occupier of the land would have rights over the finder, due to the ring being found in the mud - The court found that something being on the land is very different to something being attached to the land o Distinguished from B v H, where the money was found on the floor of the shop, rather than attached to the shop in some way. - The court found that the occupier of the land would have better rights over the finder, due to the ring being embedded in mud at the bottom of the pool - The courts formulated the principle: you control the land and the things on it, and this gives the right to possession before the item is found.

Grafstein v Holme and Freeman Rights of the finder against the occupier of the land on which the goods were found Holme and Freeman were employees of Grafstein. They found a locked box in Grafstein, and asked Grafstein what to do with it. Grafstein told them to leave it on the shelf, but Holme and Freeman opened it later and found the money. Judgement: The court ruled that there were two elements required for possession: physical act and mental intent. - As per this, despite Holme having physical control, by asking ‘what should I do with this’, he is showing lack of mental intent to possess. - Grafstein gave the instructions to Holme, showing mental intent, but not physically put it there himself. The court ruled that Holme was acting on behalf of Grafstein when he put the box back on the shelf, and therefore Graftstein won the case. - Courts also found that if you take possession of the box, you also take possession of its contents.

Parker v British Airways Board Rights of the finder against the occupier of the land on which the goods were found Rights of a finder as against his employee Parker was in the British Airways lounge and finds a gold bracelet. He hands the bracelet into the lounge, but then came back to find out if anyone had claimed the bracelet. - He found out that the BA had sold the bracelet for 850 pounds. Parker tried to get this claimed back, and BA fought this quite hard because they wanted a right to the chattel that was found in their lounge at their airport. Judgment: The court ruled that - BA did not make a reasonable effort to reunite the chattel with its true owner - There was no evidence that BA manifested intent to assert control over the lost article. The courts found that the BA did not fulfil the obligations of a finder, and therefore Parker was given finder’s rights.

STATUTORY INTERPRETATION Interpretation Act 1999: S5: ‘The meaning of an enactment must be ascertained from it’s text and in light of its purpose’ S6: ‘An enactment applies to circumstances as they arise’ = Contemporary meaning is used. Vincent’s Structure when answering a statutory interpretation question: 1.

Identify the issues that you need not deal with and the relevant legislation It is useful to consider the relevant act as a whole to begin with and how the provisions fit together.

2.

According to s5 of the Interpretation Act 1999, you have to look at the text of the relevant provision that you need to interpret. a) Is there any binding precedent available? If there is, then you must follow the interpretation that was provided by the court a. Same provision, same statute, same issue, same facts? Etc. b) Looking at the words, is there a statutory definition in the act? c) If not, what is the ordinary and natural meaning of the words? Is there any relevant technical/special meaning? Is the punctuation relevant? d) Do the words call for the application of a canon of construction? e) Can the immediate internal context assist in shedding light on the meaning of the words? a. Surrounding sections, parts etc. f) Can the wider external context assist in shedding light on the meaning of the words? a. The act as a whole b. What is the wider purpose of the act? c. Any indications as per s5(2)-(3) of the Interpretation Act? g) Are there any applicable presumptions that can held shed light on the meaning of words that are unclear? Any presumptions that can assist in modifying the literal reading of words so they can accommodate a modifications? a. Is the same word used in different parts of the act? b. How does this apply to the word c. Does the literal reading of words lead to an absurd result? h) Is the meaning of words enlightened by relevant case law? a. Parliamentary debates b. Legislative history c. Other external aids such as statutes in NZBORA, pari materia etc. i) What conclusion can you reach at this stage?

3.

Is the conclusions confirmed or amended by taking account of the purpose of the provision and the purpose of the act as a whole? a) Is there any internal context that assists in determining the purpose of the provision? i. Preamble, purpose section etc. b) Is there any external aid that assists in determining the purpose? Can any applicable presumption assist in determining the purpose? i. Relevant case law, ministerial speech etc. c) Does your sense of the purpose assist in either confirming or amending the conclusion? d) If amending, how can the words be read, modified, and understood in a way to fit the purpose?

4.

Apply the interpretation of the facts to the problem

5.

State conclusion.

Canons of Construction: Noscitur a sociis: the meaning of a word can be determined by the words around it - Ex: ‘to stab, cut or wound’ Ejusdem generis: ‘of the same type genus kind class’ A general term is limited to the class, type or nature of the specific words that precede the general term. Reddendo singula singulis: ‘By relating individual terms to individual terms’ - Red means stop and green means go makes sense - ‘women and men like cats and dogs’ does not make sense, be careful of context Expression unius: ‘the mention of one excludes the other’ - Assume deliberate omission

Presumptions of the Law Presumptions of the law are assumptions about the meaning of certain law that are based a number of factors 1) Legislation does not have an extraterritorial effect 2) Against infringement of international law 3) That the crown is not bound a. Presumption that the crown is not bound by this enactment, unless it specifically says so b. Supported by s27 of the IA1999, ‘no enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment’ 4) Against alteration of the common law a. Unless parliament has identified a defect in the existing common law, then parliament does not interfere with the common law, and simply only codifies it. 5) Against implied repeal of an earlier statute a. The idea that if the courts can try and apply both statutes together, they should do so, but only while preserving the initial intent and purpose of the text b. If two statutes are incompatible, then the later statute repeals the earlier one i. The intention of parliament is to repeal the earlier statute by adopting the later one. 6) Against retrospective effect a. Legislation is created for the future, not the past b. This means that if something occurred in 2005 but legislation prohibited that action comes into action in 2007, then the law cannot be retrospectively applied, and that person will not be punished 7) Against criminal liability without mens rea

a.

8) 9) 10) 11)

The idea that if the language of the statute allows, then the interpretation is to be favoured when being interpreted in regards when taking someone’s property or penalty. Against deprivation of property (without reasonable compensation) Against exclusion of the Court’s jurisdiction Against interference with personal liberty Ignorance of law is no excuse

Shorter Method from Nathan Introduction:...