LAWS1113 Lecture 7

Torts to Chattels

General Notes

  • Detinue is not assessable
  • Strict Liability regarding torts to chattels – damage rarely required
  • Goods - Tangible Property – includes money/cheques/share certificates

Entitlement to immediate possession

  • Usually the owner, but also applies to bailees, finders, pledges, and sometimes buyers
  • NB: Bailments are automatically terminated by acts repugnant to the conditions of the bailment.
  • Only applies to people with possession at the TIME OF THE ACT – cannot sue if you only gain a right to immediate possession half an hour later
  • Residential Properties/Structures – owner has immediate right to possession even when not present.

Lawful Possession

  • “greater right to possession than the tortfeasor”
  • Can include actual physical possession, which requires power or control over goods and an intention to exercise control over the goods (eg. Hired goods)
  • Even a thief has sufficient physical possession to make a claim of trespass – wouldn’t succeed against the actual owner though, since they have a better claim
  • Constructive Possession – A legal fiction used to claim physical possession when the item is not in the possession of the defendant – applies if the item is held by an agent/employee, or if it was lost through no fault of the owner
  • Immediate Right to Possession: Only applies in specific circumstances, can include goods placed in the possession of a servant or agent, can also include a bailment terminable at will

Trespass to Goods

  • Intentional, Positive, Direct interference with another’s lawful physical possession of goods (same core requirements as all other trespass)
  • Actionable per se
  • Remedies – Damages, Injunction, Recaption (recovery of goods)
  • Requires actual physical possession, immediate right to physical possession, or constructive possession
  • Example: Wheel clamping a car is trespass to goods, but possible defences include lawful authority (police/council) or consent (notices informing people)

Relevant Cases

Penfolds Wines v Elliott: A case in trespass to goods can only be made for goods bailed out if the bailer has immediate right to possession AND the interference with the bailee’s possession has taken place (eg. Theft/asportation). Re-using penfolds bottles held to be sufficiently repugnant to the bailment to grant immediate right to possession, but all interference was authorised.

Hutchins v Maughan: The action must be direct and not consequential – laying baits on a paddock and having dogs come along later and eat the poison is consequential.

National Coal Board v Evans: Must be intentional or reckless – damaging goods placed illegally on your property that you had no way of knowing about does not constitute recklessness.

Action on the Case

  • Very rarely used now days, much easier to simply sue under negligence
  • No possession or right to possession required
  • Protects interest in the goods themselves
  • Requires damage


  • Intentional act inconsistent with the right of dominion and control of the owner
  • Requires no physical interference
  • Disposing of goods (eg. Selling them)
  • Pledging goods for a debt
  • Destroying the goods
  • Fundamentally altering, damaging, etc.
  • Refusing to surrender (also detinue)

Relevant Cases

Penfolds Wines v Elliott: Immediate right to possession is sufficient to sue for conversion – any act sufficiently repugnant to a bailment to convert it to a bailment terminable at-will grants sufficient right.

Armory v Delamirie: A finder has sufficient legal right to possession to maintain a case against anyone other than the actual owner. (child found a ring, held against the jeweller to tried to take the gem from it)

Parker v BAB: An object found in a public place grants the finder sufficient legal right to possession to maintain a case against anyone other than the actual owner, including the owner of the public place. Not true for private property. (Bracelet found in the airport)

Rendell v Associated Finance Ltd: Seizing a motor vehicle containing parts that were not owned by the owner of the vehicle constitutes conversion, as it is both voluntary and intentional.