Protecting ownership of chattels Nemo dat quod non habet = Nobody can give what he does not have. You can't give better title to an object than you yourself have. Trespass
1. Intentional, positive act Wilson v New Brighton Panelbeaters [1989]
Act must be intentional, wrongdoing may be accidental however. Wilson owned a parked car, a rogue called NBP, asked that the car be towed, NPB accepted. Car was then stolen from its new position. Car was unlawfully and intentionally interfered with. Ignorance was irrelevant.
2. Interference No damage is required. If Wilson had found his car at point B, he could still have sued the PBs.
3. Need to be in possession Pensfold Wines v Elliot (1946) Bottles were inscribed 'property of Pensfold Wines', were to be returned to winery. Elliot ran a pub which sold bulk wine, the pub would fill up empty bottles. Pensfold claimed Elliot was trespassing by interfering with their possession of their bottles. Failed because customers were lawfully in possession with the bottles; even though Pensfold had a right to possession, they were not actually in possession
4. Remedies Damages to the property itself, compensated. Any consequential loss is also recoverable. Thurston v Charles (1905) - consequential loss (of employment) from trespass contemplated for, not just nominal "pen and ink" damages Injunction - stopping a trespasser to continue an act. A court might turn away a minor trespass as being too unimportant. Conversion Conversion = an intentional act that denies or is inconsistent with the immediate right to possession. Elements of conversion
1. Right to immediate possession
2. Dealing/intentional act a. Act must be voluntarily performed, but need not intended to be a conversion. All probably consequences are taken to be intend ed in fact, despite the fact that they might be undesired - Moorgate Mercantile Co Ltd v Finch [1962] - smuggler liable when customs seized his borrowed car.
3. Inconsistent with right to possession
Kuwait Airlines v Iraqi Airways [???]
* The Iraqi Government confiscated 6 Kuwait Airline's planes by passing a resolution that transferred title from KAC to IAC
* KAC demanded the value of the planes + damages ($800m US) Iraq's resolution was held to be void on international legal principles. Without the resolution, then the right to immediate possession is retained by KAC, giving title to sue. IAC converted the goods as they flew them from Kuwait, repainted, used for own purposes, denied KAC their right to property. Constituted conversion. It didn't matter that IAC thought they were acting lawfully in terms of Iraq.
* Why? What was ratio decidendi?
? Conduct must be "so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference" - such interference can give rise to trespass/negligence, but not conversion.
KAC case and elements
1. The Iraqi resolution was declared void, so KAC was entitled to possession
2. IAC removed the planes, and used them etc.
3. The dealing denied KAC's rights, as they treated the planes as their own. Remedy: fictional sale: damages to value of chattel at date of conversion Creates fiction that the defendant has bought the property from the plaintiff. Conversion and detinue are remedies only available in relation to chattels (not land). Hollins v Fowler (1875) Hollins transferred cotton to Bayley, who he thought was Seddon's agent. Bayley instead unlawfully sold them to Hollins. Fowler Hollins is a broker, who arranges the sale and delivery of the cotton to Micholls. Fowler retains ownership, through nemo dat. Contract he thought he entered into was with Seddon, not Bayley, so Bailey never gained ownership. Sale + delivery Hollins Property Page 1
1. Did Fowler have right to immediate possession?
a. Yes, through the nemo dat rule. b. No intention of Bailey acquiring ownership.
Buy the full version of these notes or essay plans and more in our LAWS203 Property Law Notes.
