LAWCOMM 442 - Personal Property LN.docx-...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
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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 40
Don Lye
“I am satisfied that the true legal position is that there must be distinguished, with regard
to the question of control, things which are on land and things which are attached to or
under it.”
“The extent to which, where objects are attached to or under the land, an absence of
control may deprive the owner against a finder is probably limited to cases such as
Hannah v. Peel
[1945] K.B. 509, where the owner of a house had never entered into
possession of it though the title had devolved upon him. There is no evidence in this case
of anything approaching that type of absence of control on the part of the landowners.”
Identifies two propositions form
“the first being that an occupier of land has rights superior to those of a finder over
chattels in or attached to that land, and the second being that the finder of a chattel
acquires very limited rights over it if he takes it into his care and control ... in the
course of trespassing.”
Finds in favour of the landowners – state who had acquired the assigned rights of the

Page 41
Don Lye
4.2 P
Items left on land by the owner – with the intention that the property would be recovered.
No abandonment – a bailment relationship.
Question usually revolves around whether the landowner/occupant has become a bailee.
Whether they had taken possession.
E.g. where owner of a car gives the car park attendant control of the vehicle –
possession has passed.
Generally, ability of the attendant to move the vehicle – would create bailment and
its corresponding obligations.
Note that currently, bailment is likely to be affected by contractual exclusion clauses for
use of the carpark.
Ashby v Tolhurst
[1937] 2 KB 242 (EWCA)
Concerned a plaintiff who left the car with the defendant and it was stolen.
No passing of possession because the plaintiff took his keys with him.
Shorters Parking Station Ltd v Johnson
[1963] NZLR 135
Plaintiff parked car for 5 years at the defendant’s parking station – for 5 pounds a month.
Key was usually left in the ignition switch so that the defendant’s servants could move the
vehicle whenever required.
Defendants’ servants were negligent – and a thief stole the car.
Hardie Boys J
“The basic grounds of appeal are that there was no delivery of possession for any purpose
other than the plaintiff's own purposes, and no evidence from which an intention of
creating a bailment could be inferred.”
“I have come to a clear view that there was, on the evidence before the Magistrate here,
quite sufficient to enable him to determine, as he did, that the intention of the parties was
that, both for the convenience of the owner of the car and for the carrying out of the
business of the garage firm, the latter should, whilst the vehicle was on its premises for
safe custody, have, and that it did have, possession of the car.”
“as a matter of law that the defendant had not brought itself within cases such as
Ashby v.
[1937] 2 K.B. 242; [1937] 2 All E.R. 837 and
Tinsley v. Dudley
[1951] 2 K.B. 18;
[1951] 1 All E.R. 252. In the former the owner paid ls. to park his car in a private ground;
he locked his car and took away the keys. The Court of Appeal held that there was no
evidence whatever of any delivery in fact of the motor car to any attendant on behalf of
the defendants and therefore no bailment.”
Citing Romer LJ in
Ashby v Tolhurst
“It is true that, if the car had been left there for
any particular purpose ‘that required that the defendants should have possession of
the car, a delivery would rightly be inferred
. If, for instance, the car had " been left
at the car park for the purpose . . . of being driven to some other place or indeed for
the purposes of safe custody, delivery of
the car, although not actually made,
would readily be inferred. But it is perfectly plain in this case that the car was not
delivered to the "defendants for safe custody".
“This reasoning strongly supports the present respondent.”

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