week 1

Question 1

What are the defining characteristics of property?

Answer 1

A relationship involving rights of excludability and transferability.

Question 2

How does something become property?

Answer 2

Property is a social construct
- Economic, social, political, moral, cultural justifications / contraints.

Question 3

What are the two types of property?

Answer 3

• Real property (realty)
• personal property (personality)

Question 4

What is real property?

Answer 4

Realty - land, houses

Question 5

What is personal property?

Answer 5

Tangable chattels (goods) and intangable property

Question 6

What is the Nemo dat quod non habet (Nemo dat) principle?

Answer 6

Nobody can give what they do not have.
- A person’s title to a chattel depends on the title of the person from whom they got it.

Question 7

How many people can have rights in property of one chattel?

Answer 7

Multiple people can have distinct proprietary rights in the same thing at the same time.

Question 8

What is an example of multiple people may have distinct proprietary rights in the same thing?

Answer 8

• Landlord/lessee
• Ann’s VW

Question 9

Are ownership and posession the same thing?

Answer 9

NO! They are very distinct.

Question 10

What are the three key property torts?

Answer 10

• Trespass
• Conversion
• Detinue

Question 11

Who are proprietary rights good against?

Answer 11

Proprietary rights are good against strangers

Question 12

Who are personal rights good against?

Answer 12

Personal rights are good against parties

Question 13

What are property torts used for?

Answer 13

A way to obtain redress for unlawful interferences with chattels that are grounded in concepts of possession rather than ownership

Question 14

What is trespass?

Answer 14

Unlawful interference with possession

Question 15

What is possession?

Answer 15

1. Physical control
   +
2. Intent/the right to exclude others

Question 16

Can you have posession over something that you are not in physical control of? Example.

Answer 16

Yes. Think cuttlery at a restaurant / dinner party.

Question 17

what is the right to immediate posession?

Answer 17

• A question of law as opposed to a question of fact
• Where an owner has retained there right to possession of that thing

Question 18

What are the elements of trespass?

Answer 18

Plaintiff in possession

Intentional act by defendant

Intentional law is unlawful interference

Question 19

Who can rely on trespass?

Answer 19

Very wide range of people, just need to have possession. Can include thieves.

Question 20

Examples of trespass:

Answer 20

Theft

Taking, removing, damaging property

Asporation – carrying away something

Destruction of goods

Question 21

Facts of Wilson v New Brighton Panelbeaters ltd

Answer 21

• Wilson left his car in his driveway carport while at the beach with his family
• “Walters” calls NBP and says it is his car and to move it to another location
• NBP moved the car
• Walters vanishes
• Wilson sues NBP
• Wilson wins

Question 22

What was the reasoning of the court?

Answer 22

1. The car was within Wilson’s possession
2. The tow truck operator acts intentionally
3. This interference was unlawful as no consent had been given by Wilson
   - Therefore NBP found guilty of trespass

Question 23

What are the facts od Penfolds Wines v Elliot?

Answer 23

• Penfolds sold wine in branded botles; retained ownership of them
• Elliott (hotelier), obtains bottles, consensually, from his brother/customers
• Elliott fills bottles with house wine; supplies to “Branded Bottle Association of NSW”
• Penfolds sued, including in trespass

Held:
- Even though Penfold owned the bottles, the customer was in possession and gave them willingly to Elliott
- Penfold may have right of immediate possession, but Elliott never trespassed on actual possession

Question 24

What are the consequences of trespass?

Answer 24

A) compensation for loss/damage to property (returning impacted party to state before the trespass)

B) Consequential damages - Thurston v Charles (Covers flow-on costs)

C) Vindictory charges: trespass is actionable per se – without loss
At least for asporation/taking away
Simple intentional touching of a chattel causing no damage is less settled

Question 25

Thurston v Charles

Answer 25

Charles invaded Thurston’s privacy and caused consequential damages – further talking to employer. This created lasting impacts to her job etc. Thurston was awarded consequential damages.