Legal tests for first test PDF

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Legal tests, topics covered: possession at common law, transferring goods, abandonment, bailment, liens, things in action (intangibles). ...

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Possession at common law: Exclusive physical control + ● Even if the taking of control was unlawful. Intention to possess - Often inferred by the physical control itself, they wanted it (animus possidendi = circumstances implicate intention) = possession at the common law ● Possessory title is relative (Armory v Delamirie: prior possession, chimney) OCCUPIER // FINDER: Occupier has superior rights to finder if: (Parker v British Airways) ❏ Thing is attached to the land; (Sharman: pond)  OR ❏ If occupier has m  anifested an intention to exert control over land and buildings or things upon or in it. ❏ If occupier is employer and finder is employee (Sharman) ● MOI may be express or implied by circumstances (Parker) ● Spectrum of MOI from public place to bank (Tamworth:  KFC) - Public place (Bridges: shop) ● Presumption of MOI in case of personal house that an owner intends to control / possess things in their house ( Parker, applied in Flack + Tamworth) - Presumption rebutted if goods illegal (Flack: mum) - Irrelevant if goods are suspicious or hidden (Flack) - Knowledge irrelevant for possession (Flack) LJ Donaldson (Parker) + Roberts’ critique: ● Finder has no rights unless goods have been abandoned or lost (not hidden or in its usual place) - Roberts’ rejects ● Finder has more fragile rights if wrongdoer; wrongdoers should not benefit from their wrongdoing; need to avoid a free-for-all - Roberts’ rejects, title should not be impaired ● If finder not a wrongdoer, has some rights but occupier will have better title, bases this with support from Sharman  (cleaning pond, jewellery found, occupier held to be entitled). - Criticism: occupier an employer of finder + arguable rings more attached to land (as deep in mud) ● Obligation to find true owner and care for thing meanwhile

Transferring Goods: Gifts Donor a proprietary right to the thing ● Not just limited to ownership, could be possession (Williams) Donor must express intention to gift ● Future intention not enough (Shower: plates)  Donee must accept gift Actual or constructive delivery ● Constructive delivery: - Intention can come after delivery (Rawlinson + Kilplin: pointed to furniture) - But, need some sort of ceremonial action for constructive delivery (Rawlinson: hand on organ) - Or symbolic thing, like a key needed (Williams: pianola + Bashall: wife = both did not have sufficient delivery) - Finding gift upon instructions enough for delivery (Thomas: manuscript) Extras: ● Cannot transfer unascertained goods (StockCo: cows) ● Cannot transfer intangibles (Smith v Jones: $500k escort)

Abandonment Old law: cannot abandon (Haynes:  graves) New law: can abandon (Robot  Arenas) 1. HAS GOODS BEEN ABANDONED? Physical relinquishment + ● Unequivocal actions (Shanghai Banking) Intention to divest ● Look to actions of physical relinquishment ● Specific intent of desertion (Simpson) ● Distinct from colloquial abandonment: just abandoning the search, not the thing (Palmer) ● Subjective intention appears relevant (Robot  Arenas) ● Looking at intention objectively relevant too: at what point is it reasonable to assume the thing has been abandoned? (Robot Arenas) - Value of goods: higher value, more reasonable has not been  time waited + reasonable enquiries (Robot) abandoned (Ngan) + 2. IF GOODS: Have been abandoned: can do whatever. ❏ Have not been abandoned: involuntary bailee. ● Cannot destroy or use for own purpose (Robot Arena) ● Must take RC in circumstances (Robot Arena) ● Can charge owner $ for costs involved in being an involuntary bailee when acted reasonably (FM Custodians v Cribb: RC taken in storing goods)

Bailment Old law: Holt J’s 6 categories of bailment with different obligations (Coggs: brandy) New law: One standard, RC in the circumstances (Wellington Racing: coat + Southland Hospital Board v Perkins: dead, ring) 1. IS THERE A BAILMENT? Bailee must take possession for there to be a bailment (Ashby v Tolhurst: carpark: no possession = no bailment = license to park car) ● Intention to possess; and ● Physical possession: exclusive physical control ● Bailment obligation can be contracted out of (Ashby v Tolhurst) - Wellington Racing: must be clear - Southland Hospital Board: bylaws did not practically apply 2. BREACH OF BAILMENT OBLIGATIONS? Bailee must take reasonable care of the thing in the circumstances - Wellington Racing: no RC (expected to be safe against thieves, ticketing system) - Southland Hospital Board v Perkins: no RC - Barton Ginger: YES RC; fishing rod, uneconomical to do more ❏ Onus shift in bailment: ● Obus on bailee to prove on BOP they did exercise Rc in circumstances (Wilson) ●

Things to consider: - Gratuitous? (Southland Hospital Board) - Sign? (Wellington Racing: not clear) - Value? (Wellington Racing: coat + Southland Hosp: diamond ring)

SUB-BAILMENT 1. WAS THE SUB-BAILMENT AUTHORISED, EXPRESSLY / IMPLIEDLY? YES, AUTHORISED: did bailee exercise RC in sub-bailing? ● Original bailor, the owner, can sue sub-bailee despite no K between bailor and sub-bailee (Morris: mink, dry cleaners + York: clocks, lost on docks) BAILMENT ON TERMS: (Pioneer Container) When bailor suing sub-bailee directly, bailor can be bound to terms of K between bailee and sub-bailee when: ❏ Bailor has authorised bailee to create a new bailment on new or different terms (expressly or impliedly) ● Subject to what is reasonable / usual in commercial situation (Pioneer: sub-bailment allowed “on any terms” - jurisdiction clause reasonable) - Contra preferentum: if issue if interpretation in K, a Court will read the ambiguous term against the party that included it. Palmer: sub-bailee can rely on terms if bailee held out that they had authority – ostensible authority – to include that term. If sub-bailee can show that if they and knowledge that they were the sub-bailee and would not have taken goods, free from liability. NO, NOT AUTHORISED: strict liability applies. ● It is no defence to say exercised RC in sub-bailment - Edwards v Newlands: furniture, bombed) - Power Farming v McCaw: tractor, fire, lease not complete) ● EXCEPTION TO STRICT LIABILITY: no causation. Strict liability for sub-bailment when no authorised UNLESS bailee can show loss would have occurred despite this breach (Power Farming v McCaw: argument strangely not upheld)

Lien: PARTICULAR LIEN: ● Only applies to particular property work was done on, can’t claim lien on other property. Primilative self help remedy: pay me and I’ll give you back your thing. - Now, a power to sell it (CCLA, 341). Lien more useful, if someone indifferent to getting possession back.  LIEN: Must be a sufficient nexus between disputed the debt and the goods over which a lien is asserted (Burrow v Container Sales: container lease & horse gear: no nexus) Must be a personal claim owing and has to be DUE (Bay Flight v Flight Care) ❏ Improvement of goods required (Stocko  v Walker: cows were improved) ❏ POSSESSION: ● Must have possession: if you voluntarily give up possession you lose your lien ( Bay Flight: plane) ● Continuing possession: when the owner can demand the property back at anytime, cannot be a lien (Simpson + Hatton v Car Maintenance) ● Albemarle exception: if possession given back to person owes obligation, lien can continue to apply if: ( Bay Flight v Flight Care: did not satisfy) - Acknowledgment of lien’s existence - Agreement that lien would continue, despite property going out of lienholder’s possession - Understanding it will be redelivered to lienholder COMMON LAW GENERAL LIEN: An ability to hold anything for debt relating to work for that person generally. ❏ CUSTOM: is there a custom that recognises this type of person as capable of having  ontractual general lien) a general lien? ( Toll Logistics: DVD packers, only c ● YES: S. 93: common law liens have priority over PPSA security interests - Courts are careful about expanding common law liens as would be inconsistent with Parliament’s introduction of PPSA. CONTRACTUAL GENERAL LIEN: ● Contractual general lien does not fall within s 93 exception in PPSA; does not have priority over PPSA security interests ( Waitomo Wools)

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Intangibles / Things in action: S 48: Definitions of things in action ● Debt is defined broadly ● Can assign part of a debt S. 50(1): How thing in action is assigned Absolute ● Old law that assignment could be conditional (Durham Bros: builders, conditional assignment) In writing ● Sufficient clarity needed (Dunn) ● Notice to or consent from debtor not required (S. 50(1) + (Shengala: valid assignment, Boatspray company sold, including 30k owed by Shengala ) . - If you don’t give notice and debtor pays assignor, not debtors fault. - If there has been multiple assignments the assignee who GIVES NOTICE FIRST about the assignment is the one that the debtor must pay (Shengala ) . - Knowledge exception: if subsequent assignee knew at time they got an assignment about earlier assignment cannot get priority via notice with such knowledge (Hall) Signed by assignor Given to assignee ● Assignee does not have to agree but can reject it later (Standing: widow has bonds, lazy grandson, no take-backsies). S 50(3)(b): Subject to equities ● Concern to assignee but debtor is protected; assignee should have in K with assignor that there are no equities in debts (Roxburgh v Cox: assignment of 3k but bank is still owed $600) S 53: Can assign an existing right to future money ● But not “mere expectancies” (in will or discretionary trust) Assignment in contract: ● Can express in J that cannot make assignments (Linden Gardens: asbestos, K precluded assignment; assignments invalid, to hold otherwise contrary to public policy) Previously:

Now:

NOTICE / CONSENT OF ASSIGNMENT: Required notice to be given to debtor before transfer of assignment was valid (s 130 PLA 1952).

Notice to or consent from debtor not required (S. 50(1) + Shengala ) .

PART OF A DEBT: Equity only otherwise could not assign part of a debt.

Can assign part of a debt (definition in s 48 includes)

ASSIGNMENT OF FUTURE AMOUNTS Uncertainty whether interest would be valid or invalid. Williams: $ to church from trust ● No assignment as based on future property

S 53: can assign an existing right to future money but not “mere expectancies” (in will or discretionary trust)...