Summary
Summary Term 3 Prescribed property law cases 2022
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These are my own personal case summaries for the prescribed cases for property law in term 3.
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Disclaimer: these are my personal notes and are correct according to my reading of the cases.Please make sure to double check should you be unclear
Mills v Reck - HC / Reck v Mills - AD
Facts
• M and R agreed to jointly recover a condenser from a sunken and abandoned ship
• M was a professional diver and had a license to salvage
• They started to salvage together but progress slowed down because of bad weather
• R gets angry that it is taking so long
• One day R sees A salvaging and convinces them that he was there first and should
leave
• Later R agrees with A that they can salvage, but give him a cut - excluding M from
this
• A is also a professional diver and can salvage
• R tells M that A will be taking over because he was not happy with Ms conduct
• M applies an interdict to stop the salvage and return its content
• R and As lawyer, B, argues that:
o M does not own the wreck or any part thereof.
o No one had yet separated any part of the wreck. The condenser was an integral
structure of the ship and without being physically separated could not be
owned separately
o R and A did not want ownership of the whole wreck, only wanted to at times
separate and possess the contents of the condenser
o Relies on another case that said:
▪ To acquire using occupation taker must assume physical possession
because this is the critical requirement to change from unowned to
owned
Issue
• What is required to appropriate a thing?
Ratio
• AD: You need to have possession, such that you enjoy the thing to the exclusion of
others
Reasoning
• The court is convinced that the person who has been working longer on a thing can
have no rights until it is fully separated. This implies that someone can come in at the
last moment and take the item. The court will not be doing its duty if it doesn't protect
the original salvor
• Rules of fairness and justice demand that a right (not a right to ownership) be reserved
for the original salvor. Especially if they are still salvaging
• The first in time must be given preference, provided he is still actively engaged in the
activity
Order
, Disclaimer: these are my personal notes and are correct according to my reading of the cases.
Please make sure to double check should you be unclear
• An interdict is confirmed and A must stop working on the salvage while M is
• Not sure as to the terms of agreement between M and R. R does not have a license to
salvage, so R certainly cannot continue without M
• M can continue with/out R so as he does so without unreasonable delay
• Cost order
On appeal
AD decided that:
• M had not yet established the degree of control required to amount to 'possession' by
simply tying a buoy around the condenser
• possession must be such that the possessor must be in a position to deal with the
subject to their pleasure to the exclusion of others
• Appeal was successful
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