TOPIC 2: Identifying legal interest in choses in possession

Question 1

What are the two legal interests a person can have in property

Answer 1

Do they have:

1) possession?
2) ownership?

Question 2

Does possession concur with title?

Answer 2

No, instead it connotes relationship btw a person and some material object (a relationship subsisting in fact) –> IT DOES GIVE EVIDENCE OF TITLE –> ie, if there is possession there’s possessory title which means it’s good against all except the actual owner

Question 3

elements of possession

Answer 3

1) exclusive control
2) animus possidendi (intent to possess and control the goods)
(The Tubantia, Pollock & Wright)

Question 4

Possession: 1) exclusive control (The Tubantia, Pollock & Wright)

Answer 4

i. What kinds of physical control were practically capable?

ii. Could physical control be applied over the whole of the goods?

Question 5

Possession: 2) animus possdendi (The Tubantia, Pollock & Wright)

Answer 5

i. Was there sufficient power to exclude interference from strangers?
ii. Did the party do what the prudent owner/purchaser would have done?

Question 6

types of possession

Answer 6

1) actual

2) constructive

Question 7

actual possession

Answer 7

physical possession of the goods, accompanied by requisite intent to exercise control or power over the goods (context matters tho) (Pollock & Wright)

Question 8

constructive possession

Answer 8

right to possess the goods, accompanied by requisite intent to exercise control or power over the goods (Pollock & Wright)

Question 9

what happens in constructive possession

Answer 9

i. they’ve taken symbolic delivery, as opposed to physical possession of goods through eg, obtaining physical means of control over the goods/entering into arrangement where goods are held to the order of that person

Question 10

with actual (physical possession) is this a matter of fact?

Answer 10

YES –> but question Court must decide as a matter of law arise as to the proof of the facts

Question 11

legal possession

Answer 11

state of being a possessor in the eyes of the law – often coexists with fact of physical possession, but can exist without posses

Question 12

is right to possess/have legal possession separate from legal and physical possession

Answer 12

yes –> not necessarily exclusive, but can have this right as a rightful possessor immediately after he’s been wrongfully dispossessed

Question 13

iRight to possess when separated from possession =

Answer 13

constructive possession

Question 14

possible remedies for possession

Answer 14

legal possessor: trespass (control is in fact evidence of possession) but other remedies insofar as they show R ot possess

Question 15

An owner who has parted with possession but may resume it at will can also maintain

Answer 15

Trespass. R to use in trespass is thus not a sufficient test of Possession but a necessary one

Question 16

what was held in La Tubantia (1924)

Answer 16

Ps had possession of ship and cargo
• There was animus possidendi in the plaintiffs: there was use and occupation of which the suject matter was capable
—>Ps were in effective control of the wreck as a whole
• There was power to excluside strangers from interfering if the Ps did not use unlawful force:
—>There were in a position to prevent any useful work by new-comers
—>While P’s people remained in the position, no new-comer could, w/o violence have exercised upon the wreck the kind of control the Ps had

Question 17

Per La Tubantia (1924) what is in someone’s possession

Answer 17

“ A thing taken by a person of his own motion and for himself, and subject in his hands, or under his control, to the uses of which it is capable, is in that person’s possession”

Question 18

Federal Commission of Taxation v ANZ Banking Group [1979] what was the outcome:

Answer 18

ANZ did not have legal, but physical possession (actual custody/physical control) of the documents. –> they had they keys and could physically access the docs
–> statutory duty to produce docs overrode the contract

Question 19

Ownership per Union Trustee Co v Federal Commissioner of Land Tax =

Answer 19

absolute dominion over the object owned

Question 20

Per Mayo J (Knapp v Knapp) ownership is a bundle of rights including what 4 things

Answer 20

1) exclusive enjoyment and use
2) right to destroy, alienate or alter the goods
3) right to maintain, resume and recover possession from others
4) right to transfer or abandon the goods

Question 21

ownership indicates relationship btw a person and an object sooooooo we need to

Answer 21

identify the object as well as its owner

Question 22

hallmarks of ownership

Answer 22

exclusivity and control

Question 23

Questions to ask with ownership

Answer 23

1) did the original owner abandon the goods?

2) were the goods appropriated?

Question 24

Questions to ask with ownership –> 1) did the original owner abandon the goods?

Answer 24

a. Is there the requisite intent in the sense that the original owner no longer has any further interest in the goods in neither possession nor ownership? (Kefiel J [386], Re Jigrose)

Question 25

Questions to ask with ownership –> 2) Were the goods appropriated?

Answer 25

a. Does the new owner manifest an intention to exercise control over it? (British Airways Case)
i. Intention to exclude others amounts to an exercise of control (Re Jigrose)

Question 26

Ownership: before there can be appropriation what must be effective?

Answer 26

abandonment (Re Jigrose)