A sesquicentenary of recaption

The year is 1861. The place: stately Burghley House, ancestral seat of the Marquess of Exeter. The grand house and magnificent grounds are usually a balm to Brownlow Cecil, the 2nd Marquess, but today his lordship is in high dudgeon.

A poacher has been trespassing on his grounds again, filching his lordship's rabbits.

(Dead Hare and Partridges, by Jan Weenix)

Word reaches Mr Higgs, the Marquess's faithful servant, that the poacher is selling the rabbits in a local pub. With another of the Marquess's men, Mr Higgs is dispatched to the pub; the scoundrelly poacher has already departed, but one of his customers, a Mr Blades, is still there – with the dead rabbits. A fight ensues; Mr Higgs emerges with the prize – the dead rabbits – but he and his fellow servant are subsequently sued for assault by Mr Blades.

'Not to worry, Mr Higgs', says the court, 'you were merely exercising your master's ancient common law remedy of recaption. There's no liability for assault. Judgment for the defendants.'

*

We couldn't let the year pass by without noting that it is the sesquicentenary of Blades v Higgs [1861] ER 693; (1861) 10 CB 713, that seminal case on the law of recaption: that is, the ancient common law self-help remedy of taking from someone, including through the use of reasonable force, something that lawfully belongs to you.

You might ask: what (on earth) does this have to do with tenancy? Does it mean that tenants who have been evicted can forcibly recapture their goods from their ex-landlords?

Well, the short answer is 'no'. Even if Blades v Higgs was admirably straightforward, the whole of the caselaw on recaption is old, complicated and inconsistent. Furthermore, in the most recent development in the law, the case of Toyota Finance Australia Ltd v Dennis [2002] NSWCA 369 (which involved – sign of the times – a car finance company and a pie van, rather than a marquess and his dead rabbits), the NSW Court of Appeal declined to follow Blades v Higgs, and restricted forcible recaption to where the wrongful possession was wrongful from its inception (and a landlord who finds themselves in possession of a former tenant's uncollected goods has not taken them wrongfully).

There is, however, a deeper connection between Blades v Higgs and tenancy law in present-day New South Wales.

For you see, Brownlow Cecil, the 2nd Marquess, had a son, William Alleyne Cecil, the 3rd Marquess -

(Note the dead rabbit worn under the chin)

- and the 3rd Marquess had a daughter, Lady Catherine, who married one Henry de Vere Vane, the 9th Baron Barnard -


- and great-great-great-great-great-grandson of the statesman of the English Commonwealth, Sir Henry Vane the Younger.


As such, Baron Barnard was also the third-cousin thrice-removed of Sir Henry Vane-Tempest, the 2nd Baronet Vane-Tempest of Wynyard, from whom descended...



...the Vane-Tempests of Condoblin, New South Wales, the respondent landlords in Rosberg v Vane-Tempest, an important case on the law relating to goods left behind after termination of a tenancy. In that case, the landlords unlawfully disposed of goods belonging to the applicant tenant, who did not seek to forcibly recapture the goods, but instead applied to the Tribunal for compensation. Despite the advocacy of legendary Koori advocate Cecil See, the Tribunal held that under the Residential Tenancies Act 1987, as the law then was, the Tribunal lacked the power to make orders for compensation for goods left behind and unlawfully disposed of.

For the TU and the TAASs, this became an important point of law reform – one that was achieved with the passage of the Residential Tenancies Act 2010, which expressly provides that the Tribunal may make an order 'requiring the landlord to pay compensation for goods disposed of by the landlord or landlord’s agent otherwise than in accordance with this Division' (s 134(1)(a)).

Or so it seemed. Now, developments in holiday law mean that awards of compensation for non-econonic loss – and many cases about goods left behind are about their sentimental, non-economic value – are subject to the thresholds and limitations of the Civil Liability Act 2002, which would have the practical effect of ruling out compensation in these cases altogether.

So the work of law reform continues. We'll be at it again next year, which also promises anniversaries even more auspicious than that of Blades v Higgs. Early in the new year it'll be the first anniversary of the 2010 Act, and we'll be having a close look at how it is going. And 2012 is the centenary of the Housing Act 1912, and hence the public housing system in New South Wales. We'll celebrate and otherwise observe it here on the Brown Couch.

Until then, best wishes for the season.