Property torts

nemo dat

nobody can give what they don’;t have/can’t give better title than they themselves have - can only give property rights you have so a person in possession can on;y give possession = not much against the true owner = Acts as a way of keeping track of who has what rights

Trespass damages (starting point as you want to make advice fit what client wants if possible)

• Compensation for loss/damage to property 

• Consequential damages (Thurston v Charles)

• Vindicatory damages (actionable without loss/per se)

  • Damages put you back in the position you would’ve been had no wrong occurred.

Conversion damages

• Damages for value of property at the time of conversion (fictional sale at time of conversion)

• Some consequential damages

Detinue damages

Return of the chattel (if it’s unique and damages would not full compensate the plaintiff for the loss -  through court order - Mckeown v Cavalier Yachts) Damages of value at time of the judgement

Elements for trespass

Protects against unlawful interference with possession

Elements:  Plaintiff is in possession  Social fact - extent of control recognised as appropriate in the circumstances - Physical control and intent to exclude others.  Must be in possession (Penfolds Wines v Elliot) Car in carport on driveway = possession (NBPB) Intentional [direct physical] act by D (voluntary - doesn’t matter if it was accident) Innocent actors can be liable (Wilson v NBPB) That act is unlawful interference  Examples:  No consent from P, asportation (Wilson v New Brighton Panel Beaters) theft , taking, damage and destruction of goods.

conversion elements

unlawful intentional interference with P right to possession

Elements: 

• P has right to immediate possession

  • Owner of goods, or lessee during the term of a lease.

• Intentional act or dealing with chattel by D 

  • Using it, changing it, transferring it 

  • Can be ignorant of wrong doing. 

  • Don’t need to be the person who took the good to be liable (Kuwait Airways)

• Act or dealing was inconsistent with P continuing rights in the goods

  • Using it as defendants own, (converting it to their own - Asserting dominion or other rights that are incompatible with the owners rights.)

  • Sale and delivery - sale without delivery is usually not enough as it doesn’t really change anyone's rights (Hollins v Fowler).

  • Reregistering vehicles, repainting and using items (Kuwait Airways Corp v Iraqi Airways Company)

what does not constitute conversion?

• Finders (protection/safe custody)

• Clearing up doubt about who true owner is may justify a refusal to return on demand 

• Some instances of moving goods around (Have to know that transfer A -> B is transfer of property) (Kuwait - moving for safe keeping)

• Mere unauthorised possession or detention is not conversion (needs to be adverse to rights of owner) (Kuwait Airways)

detinue elements

Elements: 

1. Plaintiff has right to immediate possession

   • Accession: where 2+ items are joined together - only applied when its necessary- Test: if you can remove 1 chattel from another without destruction or serious injury to the whole chattel it’s not accession. Who owns what? Base on which it was built/ what makes the item the item. (hull of a boat - Mckeown v Cavalier Yachts) - Accession does not apply to innocent improvers -> they can only be liable for conversion. 

2. P has demanded return of the chattel 

3. D refuses return of the chattel 

4. Refusal is unlawful

   • Refusal to hand over an item that the D doesn’t have any right of possession over to a person who does have right to immediate possession. 

   • NOT UNLAWFUL - don’t know P’s title and detain it for a reasonable period to figure out what the title is. 

Wilson v New Brighton Panel Beaters

Trespass

Facts / issue	Ratio
Car parked in carport up the driveway of Wilsons home  ‘Walters’ calls NBPB to pick the car up and deliver it to their house - claiming they purchased it.  Wilson sues NBPB in trespass  Issue: Can an innocent party be liable for trespass?	An act is unlawful if P didn’t give permission/consent to asportation.  Intentional = voluntary conduct not just blameworthy conduct - so yes innocent people with no knowledge can be liable.

Penfolds Wine v Elliot

trespass

Penfolds sold wine in branded bottles - retained ownership of them but not possession.  Elliot (hotelier) obtains bottles consensually from customers, filled them with house wine  Penfold sues in trespass Issue: Was there possession?

No possession = no claim in trespass.

Thurston v Charles

trespass

P worked in a hospital.  In her belongings D found a letter from a man - thought it was unsuitable for her post - made a complaint against the P to the chairman of the hospital board then replaced the letter.  Issue: Can she get damage for infringement with her privacy rights?

yes -  vindicatory damages are available for infringement in rights.

Hollins v Fowler

Conversion

Facts/issue

ratio

Fowler the owner/seller of cotton bales -> sold to  Bayley a false broker for Seddon.  Hollins buyer for Micholls (buyer/yarn maker) Bayley tricked Fowler in the sale = Fowler keeps ownership of the bales but Bayley has possession.  Micholls sends Hollins to buy the bales (acting innocently) from Bayley.  Fowler never receives payment from Bayley.  Sues Hollins in conversion   Was there conversion

Did Bayley convert the bales? Sale and delivery = conversion.  Nemo dat operates if a person has no property rights like Bayley they will transfer no property rights.  Did Hollins convert the cotton bales? Entered into a contract with Bayley and assisted in the changing of custody of the goods = conversion.  they knowingly and intentionally assisted in transferring the dominion and property in the goods to Micholls, that Micholls might dispose of them as their own and the plaintiffs never got them back 'Conversion of the plaintiffs goods, by anyone, however innocent that person, must pay the value of the goods to the real owner.

Kuwait Airways Corp v Iraqi Airways Company

conversion

Iraqi forces seized 10 planes belonging to Kuwait Airways Corp - took them to Iraq and parked them in Mosul.  Transfer of the planes to IAC - IAC painted them, insured them, used for domestic and international flights and also then reregistered them under their name.  Issue: did IAC commit acts of conversion?

Right to immediate possession remains with Kuwait Acts don’t just have to be physical can include reregistering  IAC intended to keep and treat the planes as their own. Didn’t matter that IAC did so under order of RRC of Iraq - still an intentional act IAC wasn’t liable for  Removing the planes (don’t need to take goods to be liable in conversion) Moving the planes - could be viewed to safeguard the planes Keeping the planes - mere unauthorised possession or detention is not conversion needs to have intention to keep goods in way thats adverse to the rights of the owner.

McKeown v Cavalier Yachts ltd & Spartech Marine Industries Ltd

Detinue

Facts/issue

ratio

Jun 1987: McKeown agrees to by a Cavalier 30.10 yacht from Cavalier yachts -> trades his yacht and pays $2,000 Oct 1987: Hull complete, value = $1,777 Property of McKeown Cavalier sells business to Spartech, no outward sign of changes, Mckeown did not know of sale to Spartech. 1988: Yacht is completed by molding floor + stringers to hull, fitting engine, joining deck and deck furniture etc cost = $24,409 McKeown [owns hull] + Spartech [added stuff] both claim ownership of the yacht Issues: Does McKeown own the yacht and thus have right to immediate possession? If so, should the court order return of the yacht?

Accession;  Test for accession is injurious: If you can remove one chattel from another without destruction or serious injury to the whole chattel = not accession Application to this case: is accession You cannot remove hull without full damage The additions accede to the hull or did the hull accede to the additions Who benefits from the accession? The person who is the owner of the major chattel Spartech argued that the value difference eg $23,000 ish therefore their additions were the major chattel Held: NO sometimes value may be useful but in this case the hull was the base and the additions were gradually acceding to the hull McKeown: Additions acceded to the hull gradually bit by bit Held; Yes McKeown owns the yacht Should accession apply to 'innocent improvers' If it ends up in hands of totally innocent bystander who does not know then the real owner , cannot take back then the owner is only allowed for damages of their chattel already owned In case of innocent bystander -> they can only be held liable for conversion. BUT spartech knew it was being constructed for a client 2.  should the court order return of the yacht? Only if it has special value or interest AND damages aren’t enough to fully compensate P for loss.  Yacht fulfils this - so yes yacht got returned.