Recovery of Art by Vindication of Property Rights

Abstract

Art crime invariably involves the interference with property rights. Whilst the criminal code provides a response for such occurrences, what is often overlooked is the availability of civil law remedies which may be more effective in terms of recovery of either the item in species or its true value. Further, under civil proceedings the true owner both controls the legal proceedings and has the benefit of a lower evidential threshold for recovery. Using the example of Edward Bullmore’s misappropriated artworks, this presentation focuses on civil law rights applicable under New Zealand law for recovery where property rights in visual arts are interfered with. By reference to the facts of Bambury v Jensen [2015] NZHC 2384, the discussion shows that the relationship between the owner of an artwork and a dealer is invariably fiduciary in nature. This means that the owner/artist has the benefit of a broader range of civil law remedies against both the dealer and third parties who either exercise possessory rights over misappropriated artworks, or become involved in their misappropriation. Civil law remedies are shown to be available both in equity and at common law. Although some may be available as a matter of general law, the discussion focuses primarily on lost, damaged or misappropriated art works in the hands of third parties.