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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 47
Don Lye
171346040
“For the appellant it was contended that the arrangement did not involve bailment but the
service of haul-out and a licence to occupy space in the shed to carry out maintenance
work.”
Trial judge findings.
o
“Chilwell J determined that the relationship between Mr Donovan and the appellant
was that of bailor and bailee and that the appellant had failed to establish that it
had discharged its duty of care in accordance with the onus of proof upon a bailee.”
o
“Chilwell J referred to the significance of classifying the relationship as creating a
bailment rather than a licence -the onus on a bailee to negative fault”.
o
He then listed the circumstances he regarded as pointing in the direction of
bailment
as: ‘ ... first that this was a contract to slip, store and reslip the boat. The
defendant controlled its movement during the slipping and reslipping and also
controlled the positioning of the boat within the premises. At least to that extent Mr
Donovan relinquished control. Secondly, the storage period was to and did extend
over a period of several weeks. Thirdly, the charges for slipping, storing and
reslipping had to be paid before the boat was reslipped. Mr Donovan was not
entitled to demand possession until the charges were paid. In fact Mr Reid refused
to down-haul the boat until Mr Donovan paid the charges for slipping and storage
.
Fourthly, although the scale of charges was agreed before the boat was slipped the
final computation was made at the end of the relationship between the parties.
Fifthly, the defendant's reason for contracting with Mr Donovan was to make
profitable use of its facilities by providing slipping, storage and reslipping services.’
o
“The Judge listed the circumstances pointing against bailment as: ‘... first that Mr
Donovan and persons authorised by him had access to the boat at all times
.
Secondly, no specific part of the premises was set aside to store the vessel, the
positioning choice was the defendant's who had the right to move the boat within
the premises. Thirdly, there was an obligation on Mr Donovan to remove rubbish
and to keep the site around the boat clean and tidy. Fourthly, Mr Donovan's reason
for entering into the contract was so that annual maintenance on his boat could be
carried out by him and persons authorised by him.’
o
“He concluded before referring to the understanding that the boat was stored at Mr
Donovan's own risk that the circumstances pointing towards bailment outweighed in
value those pointing against
.”
Citing a summary of the principles from
Zweeres v Thibault
(1942) Supreme Court of
Vermont.
o
"A bailment is the delivery of goods for some purpose, upon a contract, express or
implied, that after the purpose has been fulfilled they shall be redelivered to the
bailor, or otherwise dealt with according to his directions, or kept till he reclaims
them”.
o
“In this case it is necessary to distinguish a bailment from a lease. Where personal
property is left upon another's premises under circumstances from which either
relation might possibly be predicated, the test is whether or not the person leaving
the property has made such a delivery as to amount to a relinquishment, for the
duration of the relation, of his exclusive possession, control, and dominion over the
property
, so that the person upon whose premises it is left can exclude, within the
limits of the agreement, the possession of all others.
If he has, the general rule is
that the transaction is a bailment.”
o
“On the other hand, if there is no such delivery and relinquishment of exclusive
possession, and his control and dominion over the goods is dependent in no degree
47
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