LAWS3111 L2, 2011


  • Possession is a specific Interest in property/source of property rights
  • Also used to define other rights – eg. ownership is the best available possessory right, possession generally used as evidence of ownership
  • Ownership not traditionally ‘legally’ recognised – only the right to possession (Conversion – right to possession. Trespass to goods – actual possession, etc.)
  • Nemo dat quod non habet – a person cannot transfer better title than they themselves hold (General rule)
  • Even bona fide purchaser for value without notice only gets the same rights the seller had

Quality of Rights

  • The ‘interest’ measures the quality of the right – eg. ownership is the greatest possible interest (though still potentially limited)
  • The ‘title’ measures the STRENGTH of the interest against other parties. Eg. finder has a better title than all but the rightful owner (Armorie v Delamirie)
  • Title is also divisible – can grant lesser title/rights to others (eg. loaning a book)

Meaning of Possession

  • No ‘fixed’ meaning – can include actual, constructive, symbolic, etc.
  • Actual possession requires control and the intention to exclude others
  • Constructive requires only the right to possess, but not that it be currently exercised

Australian Securities Commission v Dalleagles Pty Ltd (1992) 108 ALR 305

  • ASC investigated a corporation, demanded various documents – Dalleagles tried to claim that they didn’t have them in their possession, as they were being kept by their lawyer
  • Held that possession had a broad definition in this instance, and included property they had a right to, but did not actually possess
  • French J observed that possession is defined by the setting and the facts of the case

Towers & Co v Gray [1961] 2 QB 351

  • Attempted to defend on grounds that they didn’t have actual possession of chickens – they were being kept in cold storage.
  • Held they had constructive possession, as they had a right to retrieve them

What is Control?

  • Depends on the size, location, nature, and ability to escape of the thing
  • Comes down to the ability to control access to the thing
  • Small items generally either worn, kept on person, or kept in larger items that are controlled/secured in some way
  • Larger items generally involve some kind of security (locks, fences, etc.) or notification (signs) to identify the intention to exclude

The Tubantia [1924] P 78

  • Sank in 1916, wreck located and recovery initiated in 1923. Had marked it with bouys, obtained limited access, and sent divers – but they could only stay down there briefly, and hadn’t retrieved anything of real value yet.
  • Held they DID possess it – had sufficient control and use of the wreck to support their intention to exclude.

Maritime Law

  • Law of salvage – allows claim of reward for salvaging wrecked ships. No consent of the ship-owner is required – any contract with ship owner to recover items functions independently of salvage. But the owner of the ship/cargo retains that ownership – salver is merely entitled to reward for its recovery
  • Law of Derelict – applies to abandoned wrecks. Can claim possession of the wreck and contents if nobody is actively attempting to reclaim them.
  • Special protection granted to historical wrecks (Robinson v WA Museum)

Robinson v Western Australian Museum (1977) 138 CLR 283

  • Boat crashed off Australian shore, 7 of its crew sailed to Indonesia to request help. Dutch sent rescue mission, but never found any survivors
  • Wreck located in 1963 and looted by Robinson and friends
  • WA tried to stop looting – statutorily vested property rights in offshore wrecks to WA Museum
  • Held legislation invalid

Control of things that can escape

  • Requires that you obtain control/possession of the animal
  • Make a reasonable effort to maintain it (proof of control against the world) – be it via fence, cage, etc.
  • Need not be absolute – only ‘reasonable’
  • Wile animals in ‘state of nature’ residing on your real property grant certain common law rights, including the right to catch, kill, and take (though can be limited or abrogated by statute, as is the case in Australia)
  • Anyone else catching, killing, or taking animals on your land without consent is committing conversion (Blades v Higgs)
  • No real control required over roaming animals (eg. bees) only the intent to control and reasonable expectation they will return. (Kearry v Pattinson)
  • However hived bees that are searching for a new nest leave your control as soon as they leave your sight and/or ability to pursue them.

State of Ohio v Shaw 65 NE 875 (1902)

  • Fish trapped in ‘open’ nets with a tunnel to allow entry and no top. They could potentially escape if they swam out that particular tunnel, or were washed over the top
  • Initially held that taking fish from those nets was not larceny/stealing – as there was insufficient control to possess. This was reversed on appeal.

Liability for Wild Animals (Buckle v Homes [1926] 2 KB 125)

  • Owners are strictly liable for animals from a species that is obviously dangerous (eg. bears) and for individual animals that have known dangerous tendencies (eg. if a dog is known to be particularly vicious)
  • Owner NOT liable for roaming animal damage if that animal is naturally given to roam.

Intention to Possess

  • Control is generally an indication of an intention to possess

Bridges v Hawksworth (1851) 21 LJQB 75

  • Customer found money on the floor of a publically accessible area of a shop
  • Gave it to owner to try and locate the person who lost it, they never reclaimed it
  • Store owner refused to return the money to the finder
  • Held that the finder had better title to it than the store-owner, as they had it first

Hibbert v McKiernan [1948] 2 KB 142

  • Defendant trespassed on golf course, took 8 golf balls from the course, and attempted to claim they were abandoned when charged with larceny
  • Looked at efforts to control access, identified an intention by the golf course to exclude the public and claim any items abandoned on their property
  • Held that it was stealing – as a trespasser, he could not gain superior right to possess

Parker v British Airways Board [1982] 1 All ER 834

  • Parker found gold bracelet in BA executive lounge, accessible to all first class passengers
  • Handed it over to a BA staff member, along with his address in case the owner wasn’t found
  • Owner never claimed it, so BA sold it and kept the money. Parker sued.
  • Held that the private lounge was still open to the public (albeit it a small subset of them) and that the general rule from Bridges and Hawksworth stands – finders keepers.
  • Set out rules for Finders:
    • Item must be abandoned or lost, and collected by the finder
    • Finder gains no right if trespassing at the time of finding it
    • Finder’s rights still subject to the original owners
    • Employees finding something in the process of their duty find it on behalf of their employer
    • Imposes a duty on the finder to attempt to locate/notify the true owner
  • Sets out rules for occupies:
    • Occupiers have a greater right to anything in or attached to their property than finders (eg. buried items)
    • If an intention to possess items was made manifest (by a non-public space, or even signage to that effect) occupiers have greater rights than finders
    • Occupiers also have a duty to attempt to locate/notify the true owner
  • Policy discussion: If occupier has best right, they’re better positioned to assist the person who lost it recover (return to the place where they lost it) but if finder has no right, they have no incentive to actually collect items, or if they do, to turn it over.

Waverley Borough Council v Fletcher [1995] QB 334

  • Fletcher had used a metal detector recreationally on council property. While doing so, he found a buried antique broach
  • Held that the broach was attached to the land, so the council had a greater right to it than he did, even though it was a public place

Flack v Chairperson, National Crime Authority

  • Flack was an elderly woman, living alone, but her children had keys to her house
  • NCA was investigating her son as a potential drug dealer, obtained a search warrant to Mrs Flacks property.
  • Found and confiscated half a million dollars in the house, but no drugs. No charges were ever laid. After 3.5 years, Mrs Flack asked for the money back.
  • Held that she had better claim to it, as she had secured her property against the general public, which led to the assumption that she intended to possess everything secured within it. NCA only had limited rights to it fur the purpose of the investigation, and once that expired they became guilty of conversion.
  • Foster dissented on the grounds that:
    • It had been concealed from Mrs Flack
    • She would not have agreed to store it if asked
    • She effectively disclaimed any intention to possess it

Moffatt v Kozana [1969] 2 QB 152

  • Russell bought bungalow in 1950, hid tin in roof
  • Sold it in 1961 to new owners. Tin eventually found, was full of money
  • Attempted to recover his money
  • Eventually succeeded (or his heirs did on his behalf, at least)
  • Held that there was no way property could have formally passed to new owners as it was not explicitly stated in contract of sale, and he never intended to abandon or gift it