Trespass to Land Definition: voluntary, intentional (or neg) direct physical interference with Ps exclusive possession of land.

. Actionable per se: without proof of da age. !g. Dumont v Miller: D with dogs went on property, sued even though no da age. "nus of proof: P to prove ele ents then D to show lac# of fault. Elements: $oluntary act by D: o !xa ple: Smith v Stone: D carried onto Ps land by force. o Public Transport Commission of NSW v Perry: D suffered fit and fell fro platfor onto railway trac#. %& held: 'it has been established for centuries that a D does not co it an actionable trespass by going on to a Ps land involuntarily(. o )ntention*negligent o +hird party controlled by D: ,eague Against &ruel -ports v -cott: Ds dogs intruded on deer sanctuary. Directly causing: differentiation between direct and conse.uential not always clear Gregory v Piper: rubbish left by D on own land, rolled onto Ps land. %eld: trespass as interference was result of Ds act and natural*probably forces. Southport Corp v Esso Petroleum: oil deliberately discharged into estuary carried by tide to Ps land. %eld: conse.uential Reynol s v Clar!e: D put rainspout on roof that poured onto Ps house. %eld: conse.uential. )nterference with the plaintiffs land Title to sue: who has right to sue? /ust have exclusive possession, no need for legal title to land. Ne"ington v Win eyer: P used grove for recreation, aintained it and engaged in acts of ownership for years, but was not actually registered owner. D who owned houses which bac#ed onto property, started to use land. %eld: though not registered, had exclusive possession of land. Does not atter if wrongfully possessed. 'an estate gained by wrong is nevertheless and estate in fee si ple( Ne"ington v Win eyer. 0o defence 10,!-- D has legal right. Delaney v T P Smith: P possessed house under ineffective lease, failed in trespass action against owner. %eld: owners legal right defeated Ps possession. 2!+ P would have won if sued against any other person (Glen"oo #umber Co v Phillips). ,icensee of property has no right: ,icense to be on land is erely personal right and does not give possession rights. Co"ell v Rosehill Racecourse: P bought tic#et, but forced to leave after D revo#ed right of entry. %eld: no possession right. P beca e trespasser once D gave notice of revocation. Profit a prendre (interest in product*part of land): Mason v Clar!e: P, with right to #ill rabbits on far , could sue tenant, who da aged Ps snares. Nature of land: Possession of land: extend only as far up into air or down into subsoil as is reasonably necessary for the use an en$oyment of lan . o +unneling: is trespass (Stoneman v #yons: %& held excavation of trench beneath the footings of ad3oining landowners garage wall was trespass).

o )ntrusion into air: eg. -uspended crane 3ib (Graham v % D Morris & Sons), shooting into Ps property fro own property (Davies v 'ennison). )s not unli ited: 'erstein of #eigh v S!yvie"s & General: Ds flight at low altitude over Ps land to ta#e aerial photo not trespass. %eld: Ps rights li ited to ordinary use*en3oy ent of land. Does not need to actually interfere: sufficient that it /A2 interfere (#(P )nvestments v *o"ar Chia )nvestments+ D build scaffold on own land but in a way that it protruded into Ps land at 4.5 above ground). %eld: 'of a nature and at a height which may interfere with any ordinary uses of the land which the occupier may see fit to underta#e( Nature of interference with land: Need not actually enter land, so long as D directly causes some object to contact with the property (Davies v Bennison). Trespass by licensee: License may be express (mo ie tic!et), or implied (unloc!ed "ront gate o" property to get to "ront door). #ccupier may re o!e at any time, and i" entrant does not lea e within reasonable time o" !nowing re ocation trespasser (Cowell v Rosehill Racecourse). Trespass pro tanto: D is trespasser in relation to unlaw"ul acts committed on premises. o Singh v Smithenbecker: D entered land to ta!e sheep law"ully purchased. $ut became trespasser once he remo ed %&s gate and too! certain sheep without permission. o Bond v Kelly: D became trespasser when he cut more timber "rom %&s land than permitted amount. o Healing Sales! v "nglic #lectri$: D went to %&s house to ta!e some o" their property, but also too! %&s. 'eld: $arwic! () and *en+ies ) said D was not liable as part o" purpose was law"ul. ,itto ) said ta!ing %&s stu"" made them liable. Thus, there is some doubt as to the trespass pro tanto doctrine. -mplied license to enter: o -" unloc!ed, unobstructed path.dri eway.yard leading to entrance o" a pri ate dwelling implied license to enter "or law"ul purposes o" communicating.deli ering to occupant (Halliday v %eville: / o""icers entered dri eway o" house to arrest dis0uali"ied dri er, held not trespass). o 1ill not wor! i" re o!ed, e en "or law en"orcement: &lenty v Dillon: o""icer went on property to ser e the summons o" %&s daughter. 'eld: e en thought authorised by law, still trespass. o $usinesses: implied license limited to existing clients and those who are see!ing in"o "or bona"ide purposes. 'incoln Hunt (ustralia v )illesee: consumer complaint reporter and t crew entered %&s premises to ma!e ideotape and 0uestion people there. 'eld: trespass. 2warded damages but not injunction (e0uitable remedy) to tape i" 'circu stances are such to a#e the publication unconscionable(. 0otion of unconscionability shown in Rinsale v ,'C: #new interview refused, but A6& director went on pre ises anyway, held as blatant disregard for rights. Trespass and pri acy: No separate tort "or pri acy. 61+ courts have used trespass to land to restrain so e use of fil *sound recordings gained by trespass.

,'C v #enah Game Meats: person videotaped possu slaughter house and passed to A6&. %eld: no in3unction granted as trespassers un#nown, and no unconscionable either. Bathurst CC v Saban: council o""icer too! photographs o" D&s property "rom a public street. 'eld: no trespass, limited to in asions o" pri acy ta!en "rom physical entry upon land.

Trespass authorised by law: Loo! abo e at -mplied license to enter, bust still liable to trespass unless authorised at law. 3xception to &lenty v Dillon: 7. +o prevent urder 8. )f arrestable offence has in fact been co itted 9 A followed into house :. )f arrestable offence is about to be co itted 9 would be co itted unless prevented 4. )f following an offender running away fro an affray 4tatutory authority does not excuse trespass: unless clearly expressed in unambiguous language. (oco 5: listening de ice planted on 2&s land ia judicial order under -n asion o" %ri acy 2ct 6786. 'eld: statute did not gi e police authority to commit trespass. Trespass ab initio: o -" entry granted by law but does something unlaw"ul.exceeds.abuses authority liable as trespasser "rom moment o" original entry. o #nly applies to positi e wrong"ul acts (not mis"easances). Si$ Carpenters: "ailure to pay "or wine "ollowing law"ul entry does not ma!e D trespass ab initio. (ontinuing trespass: o #ccur when D.D&s object remains on property a"ter reasonable time "rom %&s re0uest. o Konskier v B *oodman: builder wor!ed on adjoining house and at time, original owner said it was o! since part o" wor!. $ut a"ter new occupant, complained and not remo ed. 'eld: continuing trespass, e en though trespass started be"ore he was occupant. Intentional Torts Relating to Goods: ;oods: 7. ;enerally tangible. )ncludes intangible property eg. co ercial instru ents (,ssociate Mi lan Crop v The 'an! of NSW), share scripts (''M' -inance .*ong %ong/ v E a *ol ings). 8. &annot be hu an corpse. !xcept in: a. 0ext of #in: Smith v Tam"orth CC: executors of deceased estate has .uasi<property right to control what happens to corpse. b. =or# and s#ill: Doo e"ar v Spence: P possessed preserved 8 head stillborn foetus. %eld: where P has wor#ed on hu an body*part to point that it has ac.uired attributes different fro ere corpse, he has right. 1. Trespass to goods Definition: voluntary, intentional act by D which directly interferes with goods in Ps possession. 7. an intentional or negligent act: ie. deliberate, rec#less or negligent (National Coal 'oar v Evans+ 0&6 cut power cable. %eld: not deliberate or negligent). 0egligent is actionable in Aus (Williams v Milotin and Mc*ale v Watson).

 /ust be voluntary (Morriss v Mars en: sleepwal#er bro#e valuable vase was not liable). 8. directly causing: !xa ple: s ashes vase in Ps possession or throws poison bait to Ps dog. *utchins v Maughan: not trespass as D had put poison baits on his land so e ti e before P brought his dogs onto land. +hus, not direct. :. interference with Penfol s Wines: can be ere ta#ing*asportation without da age, handling without authority, unauthorised use of goods etc. are all trespass. /ere touching lead to trespass> 0o clear authority yet, but since actionable per se would suggest so, as does William #eitch & Co v #ey on. Everitt v Martin .N0 authority/ suggests that ere accidental touching with no da age*asportation is 0"+ trespass. -till get no inal da ages. 4. the Ps possession of a chattel Does not need to own or have legal interest in goods. Actual*constructive possession is needed: 7. eg of constructive: owner of racing pigeons has c.p. if D shoots birds whilst they are flying. An i ediate right to possession will suffice (in so e circu stances): Penfol s Wines v Elliot: P= sought in3unction against D, who offered bul# wine to custo ers in any bottles they brought. P= had e bossed state ent on bottles that they were P=s property and to be returned to P= if e pty. %eld: no in3unction granted on grounds that no evidence tortious behaviour would continue, thus not suitable re edy. "ther exceptions to actual possession: 7. +rustee ay sue in respect of goods possessed by beneficiary ('ar!er v -urlong). 8. !xecutor of deceased estate ay sue in respect of deceaseds goods which have not yet co e into his*her possession. :. "wner of franchise in wrec#s ay sue without having had possession of relevant chattel. 2. Con ersion: Definition: a dealing with a chattel in anner repugnant to Ps possessory rights eg. sale, transfer, destruction, changing nature of thing (Penfol s Wines v Elliot). 0ot si ply an interference. 7. Property: any ob3ect that ay be personal property (Doo e"ar v Spence). &he.ues*negotiable instru ents (#loy s 'an! v Chartere 'an!). )nsurance policies (Wills v Wells), share certificates (Gorman v * W *o getts & Co), guarantees (Mc#eo v McGhie). /oney cannot be sub3ect to conversion, unless particularly identifiable notes ('urn v Morriss) or a case of oney (Chairman1 National Crime ,uthority v -lac!). 8. +itle to sue: a. 6ail ent: bailee (#eeper) has right to sue, bailor (giver) has not right to sue until bail ent has ended. i. 6ail ent for li ited purposes: bail ent ends when bailee acts inconsistently with ter s of bail ent, and then bailor has right to sue. Penfol s Wines v Elliot: P= (bailor) sold wine and bailed bottles to purchasers. "nce e pty and bailees (D) used it for other purpose (to hold other wine), then bail ent was ended and gave P= i ediate right to possession and to sue in conversion. ii. 6ail ent at will: bail ent is gratuitous and bailee (actual possession) and bailor (right to i ediate possession) can sue. Perpetual Trustees & National E2ecutors of Tasmania v Per!ins: P was executors of wo an and sisters estate. %ad inherited so e valuable portraits and loaned to brother who in turn gave to another brother, whose fa ily then tried to sell to -A art gallery. %eld: wo ens loan was a 'gratuitous bail ent at will(. 6rothers fa ily and -A art gallery sued in conversion.

iii. 6ail ent at ter : bailor has no right to sue, bailee can sue (actual possession) bailor if bailor wrongfully ta#es goods during bail ent ter . City Motors v Southern ,erial Super Service: bailor wrongfully repossessed a vehicle, bailee successfully sued in conversion. b. ?inders: finder has right to sue (possessory title) against all but the true owner (,rmory v Delamirie: chi ney sweeps boy found 3ewel and successfully sued conversion against valuer who refused to return). i. !xcept < found on anothers land: if good found attached to*under land*building, then occupants rights override finders (El"es v 'rigg Gas: ancient boat deeply e bedded in soil, Ranger v Giffen: tin of oney buried under house). ii. !xcept @ found on shop floor: finders rights override as shop is public place ('ri ges v *a"!es"orth: found oney on floor). iii. !xcept @ occupier had ' anifested an intention to exercise control over the building and the things which ay be upon it or in it(: Par!er v 'ritish ,ir"ays 'oar : P found bracelet in first class passenger lounge of the D at airport. P gave to D on condition that if owner did not retrieve, P got to #eep it. D sold it and P successfully sued in conversion. Chairman1 National Crime ,uthority v -lac!: police found suitcase of oney in Ps house. Aefused to return after investigation. P successfully sued in conversion on ground as occupier of private house, ta#en to have intention exercise control over goods within house. c. ,ien: right to retain possession of goods pending pay ent of debt. %older of lien can sue third parties and even owner of goods (-tandard !lectronics v -tenner). d. &o<ownership: co<owners have right to sue (%itano v Common"ealth), but not each other except where goods destroyed*sold (Parr v ,sh). %owever, recently in Re Gillie & 3thers e2 p Cornell: co<owner converted by excluding other fro possession and preventing fro exercising rights. e. -ale: right to sue only when property has been sold and delivered, ere contractual right is insufficient (Barvis v =illia s). 61+ in )nternational -actors v Ro rigue4, contractual right to imme iate delivery of che.ue was sufficient. :. )ntention: ust be intentional (deliberate) dealing rather than ere negligence (Moorgate Mercantile Co v -inch & Rea ). a. ,shby v Tolhurst: car par# attendant let a thief (pretending to be owners friend) ta#e a car. %eld: no conversion as he had no intention. b. R * Willis & Son v 'ritish Car ,uctions: auctioneer who sells goods that are not property of vendor. %eld: conversion. c. Acting in good*bad faith is irrelevant, 3ust needs to be intentional. Ren ell v ,ssociate -inance: D finance co pany legally repossessed truc# not #nowing engine belonged to P. P successfully sued in conversion. 4. Acts a ounting to conversion: a. ;enerally: dealing which seriously interferes with Ps rights to possession @ 'in a anner repugnant( to Ps rights (Penfol s Wines v Elliott).&an be difficult to discern. b. +a#ing possession of goods: i. +a#ing with no intention of a#ing any further use of goods is insufficient. -oul es v Willoughby: D re oved Ps horses fro ferry to get P to dise bar#. P refused and horses left behind. %eld: no conversion as D did not interfere wit Ps do inion over horses. ii. +a#ing with intention to per anently #eep (Aic# &obby %aulage v -i s etal). iii. +a#ing and using goods (,it!en ,gencies v Richar son (0C case): 3oy rider was liable in conversion, but in Schemmell v Pomeroy held 3oy rider only liable if car da aged or ta#en without regard to return). c. 1se: serious isuse will a ount to conversion, if it exercises act of ownership. i. Mil! 'ottles Recovery v Camillo: D collected and used Ps bottles to sell own il#. %eld: liable as conduct involved ris# of brea#age of bottles. ii. Penfol s Wines: %& divided. d. =ithholding goods: detention a ounts to conversion (if deliberate*rec#less).

i. -lo"fill Pac!aging Machines v -ytore: li.uidator assigned to D co pany. P ter inated contract and tried to repossess bailed achinery. ,id.uidator refused. e. -ale and delivery: Perpetual Trustees & National E2ecutors of Tasmania v Per!ins5 61+ sale without delivery of goods is insufficient. f. /isdelivery: of goods by bailee to wrong person ay be conversion (To4er %emsley & Millbourn .,sia/ v Colliers )nterstate Transport Service). g. Denial of Ps rights, even if not possessing goods: Motor Dealers Cre it Corp v 3verlan .Sy ney/: D tried to co plete sale of car even after P had clai ed it. Did not possess it but authorised :rd party to delivery it. !. "etinue Definition: the wrongful detention of goods or chattels. (General -inance -acilities v Coo!s Cars .Romfor /: P leased obile crane, which was then sold twice to D, held action in detinue). Actions: court to order return of goods (restitution) "A recovery of its value, and da ages for retention. 7. +itle to sue: a. /ust establish at least a right to i ediate possession. "wnership or actual possession at ti e is not necessary. b. /ere contractual right to goods is insufficient. (arvis v Williams: P sold*delivered goods to D, but D refused to give over agreed goods in return. %eld: cannot sue in detinue. c. Possessory title is sufficient: finder of lost goods can recover (Chimney S"eeper6s case). 8. De and for the goods: a. De and ust be une.uivocal and specific as to ti e, place and anner of delivery b. #loy v 3sbourne: P de anded D to at once deliver to P or her agent all sheep branded x or ?;. %eld: insufficient as to place for delivery or identity of agent. c. -lo"fill Pac!aging Machine v -ytore: P de anded repossession of achinery. %eld: insufficient as failed to state delivery address, and also P #new location and could have ta#en it hi self. 2oung B: D ust erely a#e available Ps goods again by infor ing of whereabouts and indicating that they would not stop the . d. Capital -inance Co v 'ray: P hire<purchase contract with D who defaulted. De and D deliver to 7 of : locations. %eld: contract did not have provision re.uiring delivery. :. =rongfully refused*neglected to return: a. 0eed not be in writing, oral is sufficient (Egan v ST,). b. !ven if de and not ade, if P can prove that D would not have returned goods even in circu stances where de and was ade, then can sue in detinue. -uggested in obiter of Egan v ST, and Cro"ther v ,ustralian Guarantee Corp. c. !xcuse (not a legal right to possess) will not absolve D. *o"ar Perry & Co v 'ritish Rail"ays 'oar : D refused to return because of fear of industrial action if they did. d. )ncludes goods carelessly lost*destroyed or where lost without explanation: *oughlan v R R #o" .#u2ury Coaches/: Ps luggage lost in transit. %eld: detinue unless D can prove lost without any fault on its part. 4. )ntention*negligence: whereas conversion is deliberate, D can be sued in negligence in detinue. !g. ,shby v Tolhurst would be detinue. #. Reple in Definition: P can have goods provisionally returned pending final deter ination of rights by court. 0ote: rarely used today due to interlocutory orders, residential tenancies and consu er credit legis. $. %&tion on the &ase for damage to goods Definition: special da age is sustained by owner of goods, which are per anently da aged (directly*indirectly), irrespective of Ps i ediate right to possession or actual. 0eed to establish ownership: reversionary interest in the goods.