#8073 - Property Crib - LAWS203 Property Law

Rights as owner of goods

TRESPASS 1. INTENTIONAL, POSITIVE ACT – Wilson v New Brighton Panelbeaters Act is intentional, although wrongdoing itself accidental. 2. DIRECT, WRONGFUL INTERFERENCE No damage is required; If W found car simply moved, could still have sued. 3. PLAINTIFF REQUIRES POSSESSION - Pensfold Wines v Elliot. 4. REMEDIES AT LARGE – Thurston v Charles

Actual +consequential damage, injunction, but De Minimis Non Curat Lex

CONVERSION: 1. RIGHT TO IMMEDIATE POSSESSION, 2. DEALING/INTENTIONAL ACT Voluntarily performed act, of causing conversion with oblique intent (smuggling using borrowed car - Moorgate Mercantile Co Ltd v Finch) 3. DEALING INCONSISTENT WITH RIGHT TO IMMEDIATE POSSESSION “so extensive an encroachment” on rights as to exclude use and possession, contrasted w lesser acts of interference - Kuwait Airlines v Iraqi Airways Dealing bona fide w goods at request of possessor, excused for actions excusable if done by authority of possessor (e.g. returning possession). Changing nature of chattel, negotiating sale – Hollins v Fowler

Auctioneer advertising, returning possession on failed sale ok - Marq

4. REMEDY: FICTIONAL SALE : Value at date of conversion – Kuwait Airlines

DETINUE 1. RIGHT TO IMMEDIATE POSSESSION, 2. DEMAND FOR RETURN, 3. UNLAWFUL REFUSAL Refusal lawful if ascertaining ownership – Hollins 4. DAMAGES Specific restitution is an equitable (discretionary) remedy, not given if unjust. Detinue is a continuing wrong, should be value at time of judgment... Salmond J says take value at conversion if D has improved – Nash DAMAGE TO REVERSIONARY INTEREST 1. Damage 2.Lasting until possession recovered 3.Damage actionable if had been in possession at time. HSBC Rail v Network Rail: if damage was fixed, no right. RECAPTION Slater v Attorney General: reasonable force lawful if used to regain possession (Blade v Higgs): doubtful at HC level iff possession taken unlawfully (Toyota)/no reasonable alternative (Lloyd v DPP). BAILMENT 1. Bor PROVES BAILMENT: Bailee voluntarily taking possession of goods belonging to another – Morris v Martin If by actions/permission, Bee reasonably expected to taken control, enough, even if not strictly voluntary – Southland Hospital Board v Perkins Once proved, Bee’s duty of reasonable care arises. 2. Bor PROVES DAMAGE 3. DEFENCE: Bee’s REASONABLE CARE Consider risks of property, what can reasonably be done to protect – Skyway If res ipsa loquitur applies (damage itself shows no duty), Bee must give adequate explanation – Perkins Care which a careful and diligent man would exercise in custody of his own chattel of like character and in like circumstances: Conway v Cockram Motors Against all (reasonably foreseeable) forms of damage, not simply meeting industry standard – Conway Cost is a consideration – Skyway 4. DEFENCE: NO CAUSATION FROM LACK OF CARE Even if took reasonable care, damage still would have occurred – Conway 5. DEFENCE: Bee SHOWS LIABILITY WAS LIMITED If no express clause, infer agreement from circumstances (aware of circumstances, regular customer – maybe infer) – Skyway. Limited liability clauses are read contra preferentem – Perkins SUB-BAILMENT S-Bee owes duty to h-Bor if aware a h-Bor exists – Morris v Martine Sub-Bee’s liability to h-Bor limited if h-Bor expressly/implicitly consented to terms of sub-bailment (e.g. not if unusual). If head-Bor knew of terms of sub-bailment, or consented to sub-bailment on any terms - Pioneer Container Remedies against third parties Bee may sue in trespass/conversion for full damage to chattel, but holds on trust for Bor value above the value of Bee’s interest - The Winkfield .

GIFTS 1. EXPRESSION OF INTENTION BY DONOR TO GIFT By words or conduct, assessed objectively at time of delivery - Rowland v Stevenson. 2. ACCEPTANCE BY DONEE 3. DELIVERY : At least symbolic act - Williams v Williams, giving keys sufficient - Rowland v Stevenson

Sale of Goods

WHEN PROPERTY PASSESSOGA s18: if unascertained, P doesn’t pass. s19(1) P transfers when intended ((2) k, circumstance, conduct): Isaac: contract anachronistic conduct. S20 RULES: 1. Unconditional, specific, deliverable:P on k. 2. Specific, make deliverable: P when deliverable, notice B 3. Specific, deliverable, test for price: P when tested, notice B. 4. Goods delivered on approval/adoption: P on retention + approval or fixed/reasonable time. 5. Unascertained/future by description: P on unconditionally appropriated (delivery) to k with assent

NEMO DAT EXCEPTIONSS23: nemo dat (unless owner’s conduct estopps). S27(1) A B, keeps possession C (good faith no notice), B’s authority deemed. Mitchell v Jones: P not from sep transaction. s3(1) Mercantile Law Act: MA in possession w owner’s consent ((2)-withdrawal requires notice (4) consent presumed) sells in ordinary course of business of MA to BFPFVWN, deemed expressly authorised. Ron McDonald Ltd: A&J acting as MA despite selling on own behalf, consent to possess enough (presumed, need not be writing). RISK DURING SALES s22:(1) passes pf with P unless otherwise agreed. If party’s fault causes delay in delivery + loss, liable. (2)Bailee duty remains. s8 Perish b4 k entered without S’s knowledge, k void. s9 Perish after k but before risk passes, void. Perish: lose ‘merchantable character’: Asfar. Qualities material to k lost, repair impractical - Oldfield Asphalts.

Trusts

Express trusts require certainty of: intention, subject matter, objects,

Whether on facts words, conduct (even over time) constitute express declaration of trust (beneficial Oship: not intention to gift): Paul v Constance.

Constructive trusts: can only arise if reasonable person in claimant’s position would have understood it to, otherwise equitable factors (unjust enrichment, unfairness, estoppels, unconscionability etc.) sacrifice, contribution to property, no expressly separate property arrangements: Gillies v Keogh + ‘trustee’ should reasonably expect to yield interest: Lankow v Rose.

Interests: vested: future, non-contingent interest, contingent, discretionary. Joint tenancy/tenants in common, life interests (in possession/remainder).

TRUSTEE’S DUTIES - Jointly and severably liable.

Duties of obedience to trust: hold, distribute assets per instrument, evenhandedness b/w beneficiaries (e.g. life B’s v remaindermen; Re Mulligan). Duties of prudent ownership: invest prudently, diligently: Trustee Act 1956: s13A can invest any funds in any property, s13B: must exercise care, diligence and skill ‘prudent person of business’ would in managing another's affairs. S13C: if trustee in profession, diligence of prudent person in that profession. 13D: can vary. 13E: factors. 13M: Court considers strategy. 13Q: set off gains from losses (overall growth). Re Mulligan: invstd in mortg only, neglected duty. Applying to Court for directions: s66. Duties of loyalty:

Not to benefit from trust (Pett v Robinson), but s72 Court may compensate with just and reasonable allowance. T can’t sell TP to self unless sale is absolutely necessary, T offers more than anyone else, T applies to Court, otherwise vulnerable(Campbell v Walker). T must show best offer, but need not market. T should step down, timing relevant. (Patchett v Williams) T can’t enter engagements in potential conflict of interest: Aberdeen Ry. Co. Can’t enter business that conflicts with beneficiaries (yacht agent) Thomson v Allen. T can’t put self into potential conflict of interest and duty, even if T couldn’t have bought property itself, can’t use TP to personal advantage without informed consent of B’s: Phipps v Boardman.

PERSONAL REMEDIES AGAINST TRUSTEE Compensate loss: Re: Mulligan. If ‘fraud of power’, ‘deliberate, pre-conceived scheme’ for object outside of trust document (esp if know not lawful), should s66: Wong v Burt.

Account of profits: but allowance for skill Phipps. Onus on T to show allowance for skill, moral wrongdoing immaterial Chirnside v Fay. Defence: if breach and failure to apply to court ‘honest and reasonable’ Court may relieve of some/all liability s73. If at beneficiary’s instigation, B’s interest may be impounded as indemnity for T who is personally liable s74. Power to terminate: If B’s are all age of majority, sound mind, can terminate by unanimous decision Saunders v Vautier. PROPRIETARY REMEDIES AGAINST TRUSTEE – TRACING Unmixed Claims: re: Hallet: take property bought w TP, or enforce charge. P appreciated: claim to whole. P depreciated: charge + personal remedy. 3^rd party volunteer holds on constructive trust, BFPFVWN: B loses equitable title. Simple mixed claims: First in, first out: Clayton’s Case. T presumed to be honest, spend own money first: re Hallet. Lost expenditure T personally, expenditure in property B regardless of timing: In re Oatway. BUT funds cannot be traced above lowest value of account since T funds entered: Roscoe v Winder. Funds Property, B’s option: proportionate share (if appreciated) or enforce lien (if devalued): Foskett v McKeown. (Pettyjohn doesn’t apply). Complex mixed claims: Funds property, B’s share pari passu (proportionately): Sinclair v Brougham. Bank accounts: If later funds intact, remove first. FIFO (Clayton’s) displaced easily by inference of intention. Search for “least unfair” solution, usually pari passu (unfair to early investors, but they had risk longer): Unit Trust case. North American Rolling Charge most principled, but too expensive, time-consuming (but if funds treated arbitrarily, result is arbitrary). UK can’t reject FIFO, just find exceptions. Even if intentioninvest separately, if T actually pooled, presume intentionshare...