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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 20
Don Lye
171346040
indicators were the degree of annexation of the structure to the land and the object or
purpose of the annexation. Each case would depend on its particular facts. A common
sense approach was required.”
“This approach was adopted by this Court with the observation that it reflected the classic
statement of the test as expressed by Blackburn J in
Holland v Hodgson
. Two other points
should be noted. The subjective intention of the parties is irrelevant. The purpose of the
annexation is to be objectively assessed. Relevant considerations may include whether the
structure was intended to be permanent (not merely for some temporary purpose) and
whether the structure was intended to benefit or improve the land on which it is installed.”
Commentary
The latest case – probably the starting point in formulating the framework.
Read
Auckland City Council
and
Elitestone
and
March Construction
– important cases.
20
Page 21
Don Lye
171346040
3
INTERESTS IN PERSONAL PROPERTY
What is possession?
Bailment – where the owner of a property gives it to another person to take care of – as a
result of possession, the bailee then has rights with respect to third parties.
Lien – where one person provides a service in respect of goods – they are then entitled to
retain possession of goods until payment is made.
Salvor – law of salvage – if you voluntarily assist a ship/boat etc, then you are entitled to
be paid as a salvor – pending payment, there may be rights to retain possession in a way
akin to a lien.
3.1 A
CTUAL
POSSESSION
Requirements for Actual Possession
1.
Control in fact.
2.
Intention to control.
3.1.1
Control in Fact
3.1.1.1
Your Response Ltd v Datateam Business Media Ltd
[2014]
EWCA Civ 281
Claim by data manager against a publisher.
Data manager managed the publisher’s electronic database – publisher fails to pay.
Data manager assets a lien over the electronic database.
Moore-Bick LJ
“It raises an interesting and important question, namely, whether it is possible to exercise
a common law possessory lien over an electronic database.”
o
All previous caselaw dealt with possession of tangibles goods.
“In this case the court is concerned only with the exercise of a common law lien, which, in
its origin, permits a bailee in possession of chattels to refuse to redeliver them to the
bailor until he has received payment of outstanding sums due to him.”
Citing Diplock LJ in
Tappenden v Artus
[1974].
o
"The common law remedy of a possessory lien, like other primitive remedies such
as abatement of nuisance, self-defence or ejection of trespassers to land, is one of
self-help. It is a remedy in rem exercisable on the goods, and its exercise requires
no intervention by the courts, for it is exercisable only by an artificer who has actual
possession of the goods subject to the lien. Since, however, the remedy is the
exercise of a right to continue an existing actual possession of the goods, it
necessarily involves a right of possession adverse to the right of the person who,
but for the lien, would be entitled to immediate possession of the goods.”
o
“A common law lien, although not enforceable by action, thus affords a defence to
an action for recovery of the goods by a person who, but for the lien, would be
entitled to immediate possession. "Since a common law lien is a right to continue an
existing actual possession of goods (that is to say, to refuse to put an end to a
bailment) it can only be exercised by an artificer if his possession was lawful at the
time at which the lien first attached."
21
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