LA2019 Lecture 5 - Luke Neal PDF

Preview

Summary

Luke Neal...

Description

LA2019 Lecture 5 Torts dealing with interferences to property Trespass to property, Conversion and Detinue Torts dealing with interferences to property -

Introduction’ Trespass to property; Conversion and Detinue; ‘Property’ is interchangeable with ‘goods’ or ‘chattels’; What is ‘property’? o Refers to a specific type of property – personal, tangible property (does not deal with intangible property or real property such as land) - Each tort involves an interference with possession; - Different types of possession: o Actual possession;  Is where the property is actually held by the individual o Constructive possession;  Where it’s not actual possession but it is under my control (e.g. place something on desk, then walk away is under constructive possession) o Legal immediate right to possession  The plaintiff has a legally enforceable right to regain possession (e.g. pass something to someone else and say, hold this until I ask for it back  not actual or constructive possession, but you do have the legal immediate right to possession) The interests protected under each tort Trespass to property To establish trespass to property the plaintiff must establish: 1. Title to sue the plaintiff 2. There was a direct interference with the property -

Is actionable per se: do not have to prove actual damages

To avoid liability the defendant must establish at least one of the following three: 1. That the interference was consented to by the plaintiff; OR 2. The interference was contact in the ordinary course of life; OR 3. There was an absence of fault -

Directness o Directness will include an unbroken series of continuing consequences: Scott v Shepard o Consequential interference is insufficient: Hutchins v Maughan  It was held that where the dogs were brought onto the land and the dogs ate the poisoned bait and dies, that action was not sufficiently direct to base an action of trespass

o Examples of interference sufficient to constitute trespass to property: Penfold’s Wines v Elliott per Latham CJ; Fouldes v Willoughby per Alderson B; Lord Abinger  Example of interferences sufficient enough to constitute trespass:  The movement of property  Causing physical damage to property  If the property is an animal – injuring, killing, or moving the animal o Mere touching? Penfold’s per Latham CJ cf Everitt v Martin [1953] NZLR  Courts said the mere movement of goods or the handling of goods is a trespass  The mere touching of goods in accidental conduct would NOT constitute trespass o Fouldes v Willoughby:  Scratching a car would be trespass -

What must be the nature of the plaintiff’s possession? o Actual or constructive possession is sufficient: Penfold’s Wines Pty Ltd v Elliott o Example of constructive possession: Wilson v Lombank Ltd [1963] 1 All ER 740 o Four exceptions to general principle that plaintiff can only sue if has actual or constructive possession:  Trustee – interference goods in possession of beneficiary  Interference occurring before personal representative takes actual possession  Interference occurring before franchise owner takes possession  Bailment at will

Bailment at Will -

-

What is a bailment? (Bailment at will; Bailment for term) o Bailment contains two parties – bailor and bailee o Transfer of possession of property, from one person to another for a limited period of time o Two types of bailment:  Bailment for term  Simply, where the property is lent for a certain period  Bailor has no rights if the goods are interfered with  Bailment at will  When bailment is for an uncertain period of time  When the terms of the bailment is that the property is to be returned at the discretion of the bailor (when they ask for it back) When can bailor sue? Bailment at will – bailee’s actual or constructive possession in interfered with third party: Penfold’s Penfold’s case  The bailee’s unauthorised use is insufficient; exception? o Penfold’s is a wine company. When they sell a bottle of wine, they retain ownership of the bottle. Customer bought a bottle, consumed the contents

and then gave the empty bottle to his brother. The brother than filled the bottle up with competitor’s wine. Was sued for trespass to property. High Court said that Penfold’s was a bailor – when a consumer purchases a bottle, they hold that bottle under a bailment of will. They have a right to immediate possession (they could demand the return of the bottle). The court stated that by the bailee handing the bottle to his brother, there was no interference with the bailee’s physical possession of the bottle because they voluntarily handed it over. Also demonstrates, the unaurhorised use is not sufficient to give the plaintiff title to sue. Here there was no question that when the brother filled the bottle with competitor’s wine, that was unauthorised use of the bottle – unauthorised use without interference of physical possession of the bailee, is insufficient to grant title to sue. Trespass to property -

-

-

Does a finder have sufficient possession to sue? Amory v Delamirie (1722) o Chimney sweep found a gold bracelet on the floor of an airport lounge. He handed the bracelet in to the airport terminal company. When no one came to collect the gold bracelet the plaintiff requested its return from the airport terminal company but was sold they had sold it for 850 pounds. Sued the airport company for damages claiming this conduct was a trespass to property. Crucial issue was whether plaintiff had title to sue. Court said plaintiff did have title to sue. Crucial issue was whether or not the airport company had exercised sufficient control over the lounge area that amounted to constructive possession of the gold bracelet. If the airport company exercised such control over that area, then the bracelet would have been under the constructive possession of the airport terminal which would have prevented the plaintiff from gaining possession of the bracelet. Court found that they had not. Has constructive possession of the property been taken by the individual exercising control over the area in which the property was found? Parker v British Airways Board [1982] QB 1004 Presumption relating to private residential homes: Chairman, National Crime Authority and Another v Flack o The plaintiff’s son was suspected by the police to have been involved in selling drugs. Poice believed the drugs were being kept by the brother’s residence. It was clear from the facts that the son was a licensee of the property – he could enter the property but he was not a tenant. Police found a drugs in a suitcase in a wall cavity and they took possession under the belief of proceeds of crime. Mother sought return of suitcase and police refused. Issue was whether or not the refusal to return the suitcase was an action of trespass. Court held that the mother had title to sue – noted that in relation to residential property either the owner or the tenant exercise control over the property. Right to possession, even if the plaintiff is unaware of it. Even if a mere licensee had access to the property. Crucial to determine where the property was found. The significance of where the property is found

*FROM HERE ON LISTEN TO RECORDING – MISSED EVERYTHING*

-

-

The defendant may avoid liability by establishing a lack of fault: voluntaries, intention, negligence o The defendant can establish the conduct was not voluntary with a lack of conscious will National Coal Board v Evans [1951] Example – picking up a book Must there be an intention to unlawfully interfere with possession? Consent and ordinary life exception Remedies: o Damages are available per se: Moore v Lambeth (No2) [1970] 1 QB 560 o Are aggravated or exemplary damages available?  Aggravated damages are available for trespass to property  listen to recordings  Makryllos v George Laurens

Conversion 1. A title to sue; 2. The defendant’s conduct was intentional; and 3. The defendant’s conduct must be an exercise of dominion over the property that is repugnant to the plaintiff’s immediate right to possession A conversion of text and possession for the dominion of the property of another Compare trespass to property and conversion: - Title to sue-immediate right to possession - Direct interference - Conduct amounting to trespass or conversion - Fault o Trespass can occur when the interference was reckless, negligent or intentional o Reckless and negligent is insufficient for conversion, only intentional is sufficient - Remedies o Conversion  Court can order the defendant to purchase the goods and the plaintiff is compensated with that sale price o 1. Does the plaintiff have title to sue? a. Conversion: i. Plaintiff will have title to sue if the plaintiff has actual possession or constructive possession or (in limited circumstances) an immediate right to possession ii. Note: like trespass, the plaintiff will have title to sue for an immediate right to possession when there is a bailment of will

2. Was the defendant’s conduct a conversion of the property? The Plaintiff’s title to sue 1. Actual or constructive possession of the property when the wrongful act was done 2. The right to immediate possession at that time -

-

A mere finder of the property: Armory v Delamirie (1722); Parker v British Airways; Chairman, National Crime Authority v Flack The bailee and bailor’s title to sue under a bailment for term or at will Can the bailor’s common law right to immediate possession by limited by contract? Union Transport Finance v British Car Auctions There must be an intentional dealing with the property Not an intentional act of conversion; an innocent dealing is sufficient: Rendell v Associated Finance Pty Ltd [1957] Example from Sappideen, Vines, Grant and Watson

What conduct may constitute conversion? In Penfold’s Wines v Elliot, Dixon J said (at pg. 229) that: - ‘The essence of conversion is a dealing with a chattel in a manner repugnant to the [actual possession] or the immediate right of possession of the person who has the property or special property in the chattel’ What conduct constitutes conversion? -

Destruction of property Movement of property Wrongful Detention: no conversion if the refusal is not unreasonable; there need not be a demand: Flowfill Packaging Machines v Fytore (1993) Sale and Delivery – nemo dat rule generally applies. Must also include delivery: Glass v Hollander (1935); Both vendor and purchaser commit an act of conversion: Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989)

Conduct that Constitutes Conversion -

Wrongful delivery: Sydney City Council v West (1965) HC; An intentional dealing with property that amounts to an exercise of dominion of the property: Aitken Agencies v Richardson [1967] cf Schennell v Pommery (1989) 50 SAST 450; The bailee’s use of goods: Model Dairy Ltd v White (1935); Penfold’s Wines

Conversion -

Remedies Forced sale: Sinclair v Haynes

Detinue -

Involves the unreasonable interferences of the refusal to return goods

-

Title to sue o Same as trespass to goods and conversion o The goods are actually in their physical possession (constructive possession) Requirement of Fault: intentional and negligent acts Act of detinue: o The demand must be specific: Lloyd v Osborne (1899) 20 LR (NSW) 190; Brambles Australia Limited t/as CHEP Australia v Tatale Pty Ltd and Venasti Pty Ltd [2004] NSWCA 232; Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) o The refusal – must be unqualified and unreasonable o Remedies – damages: General & Finance Facilities v Cooks Cars

-...