TOPIC 2: Identifying legal interest in choses in possession Flashcards
What are the two legal interests a person can have in property
Do they have:
1) possession?
2) ownership?
Does possession concur with title?
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
elements of possession
1) exclusive control
2) animus possidendi (intent to possess and control the goods)
(The Tubantia, Pollock & Wright)
Possession: 1) exclusive control (The Tubantia, Pollock & Wright)
i. What kinds of physical control were practically capable?
ii. Could physical control be applied over the whole of the goods?
Possession: 2) animus possdendi (The Tubantia, Pollock & Wright)
i. Was there sufficient power to exclude interference from strangers?
ii. Did the party do what the prudent owner/purchaser would have done?
types of possession
1) actual
2) constructive
actual possession
physical possession of the goods, accompanied by requisite intent to exercise control or power over the goods (context matters tho) (Pollock & Wright)
constructive possession
right to possess the goods, accompanied by requisite intent to exercise control or power over the goods (Pollock & Wright)
what happens in constructive possession
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
with actual (physical possession) is this a matter of fact?
YES –> but question Court must decide as a matter of law arise as to the proof of the facts
legal possession
state of being a possessor in the eyes of the law – often coexists with fact of physical possession, but can exist without posses
is right to possess/have legal possession separate from legal and physical possession
yes –> not necessarily exclusive, but can have this right as a rightful possessor immediately after he’s been wrongfully dispossessed
iRight to possess when separated from possession =
constructive possession
possible remedies for possession
legal possessor: trespass (control is in fact evidence of possession) but other remedies insofar as they show R ot possess
An owner who has parted with possession but may resume it at will can also maintain
Trespass. R to use in trespass is thus not a sufficient test of Possession but a necessary one
what was held in La Tubantia (1924)
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
Per La Tubantia (1924) what is in someone’s possession
“ 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”
Federal Commission of Taxation v ANZ Banking Group [1979] what was the outcome:
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
Ownership per Union Trustee Co v Federal Commissioner of Land Tax =
absolute dominion over the object owned
Per Mayo J (Knapp v Knapp) ownership is a bundle of rights including what 4 things
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
ownership indicates relationship btw a person and an object sooooooo we need to
identify the object as well as its owner
hallmarks of ownership
exclusivity and control
Questions to ask with ownership
1) did the original owner abandon the goods?
2) were the goods appropriated?
Questions to ask with ownership –> 1) did the original owner abandon the goods?
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)
Questions to ask with ownership –> 2) Were the goods appropriated?
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)
Ownership: before there can be appropriation what must be effective?
abandonment (Re Jigrose)
