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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 32
Don Lye
171346040
4.
An ‘occupier’ of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated
as if he were the occupier of a building for the purposes of the foregoing rules.”
On the facts.
o
“The defendants, for their part, cannot assert any title to the bracelet based upon
the rights of an occupier over chattels attached to a building. The bracelet was lying
loose on the floor. Their claim must, on my view of the law, be based upon a
manifest intention to exercise control over the lounge and all things which might be
in it. The evidence is that they claimed the right to decide who should and who
should not be permitted to enter and use the lounge, but their control was in
general exercised upon the basis of classes or categories of user and the availability
of the lounge in the light of the need to clean and maintain it. I do not doubt that
they also claimed the right to exclude individual undesirables, such as drunks, and
specific types of chattels such as guns and bombs. But this control has no real
relevance to a manifest intention to assert custody and control over lost articles.
There was no evidence that they searched for such articles regularly or at all.”
o
“Evidence was given of staff instructions which govern the action to be taken by
employees of the defendants if they found lost articles or lost chattels were handed
to them. But these instructions were not published to users of the lounge and in any
event I think that they were intended to do no more than instruct the staff on how
they were to act in the course of their employment.”
Commentary
The leading modern case on finders’ cases.
Devonshire thinks that there was a strong degree of control manifested and exercised
here in the airport executive lounge.
Irrespective of whether the application was correct – the principles have become a staple
in finders’ cases.
Note the relevant policy concerns: to encourage finders to be honest about items found –
and also to help true owners find their items back.
32
Page 33
Don Lye
171346040
4.1.2.3
Tamworth Industries Ltd v Attorney General
[1991] 3 NZLR
616
(HC)
Police were executing a search warrant in Gisborne.
In disused building found drugs and money – money was accessible through a hole in the
floorboards – was resting on the soil beneath the floorboards.
Dodds had leased the disused land and building.
Police charged Dodds with possession of narcotics but he was ultimately acquitted.
When police impounded drugs and cash, Dodds facing criminal prosecution said he had no
knowledge of drugs and money.
Cash is in the possession of police – lawful initially because the police exercised a search
warrant.
When Dodds was acquitted, police could not argue that money was proceeds of his crime nor
could money be retained as an exhibit.
Dodds claimed the money in civil proceedings.
Eichelbaum CJ
“There may be room for more than one view about the following, but both sides
approached the case on the assumption that this was a case where chattels (ie the
money) were on or in the building, or on the land, as distinct from being attached to the
building or in or attached to the land.”
o
This was probably a huge mistake by the plaintiff to concede this. Arguable that
since it was underneath floorboards – was actually part of the building.
“Although at the time of the find the police were entitled to seize the money as a potential
exhibit, once the charges to which the money was a relevant exhibit had been disposed of,
the rights of the police could not be any higher than those of a finder of lost or abandoned
property who had taken it into his care and control”.
Issue is therefore whether the plaintiff had manifested an intention to exercise control.
Follows the analysis of Donaldson LJ in
Parker v British Airways Board
.
o
“There are 2 distinct basic propositions, each grounded in public policy. The finder
of a chattel, that is to say the person who finds the article and takes possession of
it, obtains a possessory title which enables him to keep the article against all but
the rightful owner.”
o
“An occupier of land however has rights superior to those of the finder in respect of
chattels in or attached to that land; further, subject to qualifications discussed later,
the occupier of a building also has rights superior to those of a finder of a chattel on
or in (but not attached to) the building.”
o
“Underpinning both principles is the proposition that without such rules, rights to
lost property would be subject to a free-for-all in which victory would go to those
sufficiently strong or devious.”
Manifest intention to exercise control “manifest in the context meaning as I understand it,
obvious or apparent”.
Examples.
o
“The paradigm New Zealand quarter-acre section, fenced, and subject to an implied
licence to persons to enter for legitimate business or social purposes, would be near
the top end. In those circumstances (the bank vault Donaldson LJ posited would be
another example) the inference of the intention to exercise control would be
strong.”
33
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