Laws3111 Lecture11 2011

Week 11 – Property Torts

  • Relying on immediate right to possession is NOT unjust enrichment – claim is for wrongdoing to that right, which is protected by the torts of trespass, detinue, or conversion
  • Sale for unspecified amount can lead to contract being held to stipulate ‘reasonable’ (under sale of goods Act ss 11, 50) or an unjust enrichment action for quantum valebat (reasonable value for the goods)


  • Intentional dealing inconsistent with another’s right of possession/immediate right to possession
  • Must be so extensive as to deprive them of that right (Kuwait Airways v Iraqi Airways)


  • Goods
    • Physical Chattels (Penfolds) or Documentary Assets
    • NOT money in bank (Ferguson v Eakin)
    • NOT domain names (Hoath v Connect Internet)
  • Standing
    • Actual Possession (Armory v Delamirie, Parker v BAB, Flack v NCA)
    • Immediate Right to Possession (Penfolds, Perpetual Trustees v Perkins)
    • Bailments can revert due to repugnancy granting immediate right, but mere use outside of terms is not necessarily sufficient (Penfolds)
    • Jus Tertii – arguing that the plaintiff had no real immediate right to possession, as a third party had a better claim (Chep v Bunnings)
    • Actual possession in the past is de facto (but rebuttable) evidence of ownership/right to possess (Perpetual Trustees v Perkins)
  • Intentional Dealing
    • Mere negligence NOT sufficient for conversion (Ashby v Tolhurst)
    • However if intentional, good faith is no defence (Consolidated Co v Curtis)
    • Favours negligent owners over innocent purchasers (Denning in RH Willis and Son v British Car Auctions)
    • May be less strict for unwitting bailees (Robot Arenas v Waterford)
  • Converting Act
    • Theft/dispossession (R v Ilich)
    • Destruction/Fundamental alteration (Penfolds)
    • Retention of goods (Flack v NCA)
    • Sale & Delivery (RH Willis and Son v British Car Auctions)
    • Use as ones own (Chep v Bunnings)
    • Misdelivery (Youl v Harbottle)
  • Cannot be:
    • Mere assertion of ownership (Perpetual Trustees v Perkins)
    • Agreement to give/sell without delivery (Perpetual Trustees v Perkins)
    • Ministerial acts (storage/carriage) (Marq v Christies)

Hoath v Connect Internet

  • Attempt to sue for conversion of a domain name
  • Held domain name WAS property – valuable, exclusive, assignable, etc.
  • However, it was intangible, so they could only sue for conversion of a physical object that represented it – in this instance, DNS Server.
  • As they didn’t have possession/right to possession of that DNS Server, the action failed

Kremen v Cohen

  • Conversion of the domain name ‘’
  • Held a domain name IS property, and IS convertible.
  • Analogy – staking a plot of land at the title office
  • However US case, and their conversion is far less stringent on the ‘physical chattel’ requirement.


  • Wrongful detention in defiance of a lawful demand for the return of goods. Must request the return of an identified chattel in the demand, and actually be refused
  • Same standing requirements as conversion – immediate right to possession
  • Refusal to hand over IMMEDIATELY is not detinue (Clayton v Le Roy)
  • Defences to detinue include ‘reasonable care’ was taken (as per bailment) but not ‘mis-delivery’ (John F Goulding v Victorian Railways Commissioners)
  • Onus on defendant to disprove negligence, as they are acting as bailee (Houghland v RR Low (Luxury Coaches), Hobbs v Petersham)

Trespass to Goods

  • Direct, Intentional, Positive interference with goods in the possession of the plaintiff.
  • Must be direct - Locking room with goods in not sufficient (Hartley v Moxham)
  • Interference can include
    • Dispossession (City Motors (1933) v Southern Aerial SuperService)
    • Damage/Destruction (Hamps v Darby)
    • Asportation (Kirk v Gregory)
    • Mere using/touching goods (MAYBE) (Everitt v Martin)
  • Interest required: Actual possession, but special action MAY exists for bailor with right to immediate possession acting on bailees behalf (Penfolds)


  • Self Help (Recaption) – use of reasonable force to recover items you have immediate title to. Emphasis on reasonable. (Devoe v Long and Long)
  • Trespass – As per conversion if lost/destroyed, otherwise as per damage done
  • Detinue – Value of goods at date of trial – can also include damages for their detention
  • Consequential loss – eg. Inability to re-establish business due to loss of chattels (Egan v State Transport)


  • Can be based on profits or cost of hiring goods if goods used by wrongdoer unprofitably (Denning in Strand Electric v Brisford Entertainment)
  • Wrongdoer cannot be better off for not asking permission
  • Additional remedy if goods retained until judgement (or part-way) for rental costs
  • Calculated from moment defendant took possession
  • Also approach taken in Wrotham Park Estate
  • Restitutionary damages generally personal (eg. Account of profits) but can include a constructive trust for fiduciary property – which is a proprietary remedy (Chan v Zachariah)
  • Can also include a trust for bribes (and anything purchased with those bribes) (AG for Hong Kong v Reid)