Intentional torts to personal property -Plaintiff may be able to bring…
Intentional torts to personal property
-Plaintiff may be able to bring more than one simultaneously
Trespass to Goods/Chattels
-an act by the defendant that directly interferes with the plaintiffs possession to goods
-must be a direct result of the defendants act for it to constitute trespass, if it is intentional but indirect it gives rise to action on the case (not action in trespass)
-intentional touching of good is trespass even in the absence of damage or dispossession
Damage not necessary
Cressy v Johnson
 VSC 52
P took documents and phones belonging to the D, it was deemed that this was trespass as the P did not have permission as as a result committed trespass to good
Hamps v Darby
 2 KB 311
Defendant committed trespass as a result of shooting the P pigeons
Hutchins v Maughan
 VLR 131
Defendant laid baits on his land, which the plaintiffs dogs ate and died. It was decided that the poisoning of the dogs did not constitute trespass, as the result of laying the bates the poisoning was consequential and not directly or immediately occasioned by it
there is little authority in Australia as to whether this constitutes trespass, however in the US there has been some decisions.
-in each of the cases the D did not damage the computer but merely made contact with it diminishing its usefulness to some extent
CompuServe Inc v Cyber Promotions Inc
962 F Supp 1015 (SD Oh 1997) and
America Online Inc v LCGM Inc
46 F Supp 2d 444 (ED Va 1998)
Sending mass spam emails to the computers of the P who were internet service providers could amount to trespass
State Analysis Inc v American Financial Services Association
621 F Supp 2d 309 (ED Va 2009) and
Jedson Engineering Inc v Spirit Construction Service
720 F Supp 2d 904 (SD Oh 2010)
unathorised access to a password protected parts of the P website amounted to trespass
Fault on the part of the D
National Coal Board v JE Evans & Co (Cardiff) Ltd
 2 KB 861
The D cut the P underground electronic cable, however as the D had been neither negligent nor intentional in their action it was not deemed trespass
-can only sue the D who interferes with the person who is in actual possession or constructive possession, if that person is in possession with the P authority
Wilson v Lombank Ltd
 1 All ER 740
P bought the car from someone who was not the true owner (as such P is not the owner of the car). The car was taken to a garage for repair by P. D thought they owned the car so removed it from the garage, however D was not the true owner of the car, however they passed to the true owner. It was deemed that the D had committed trespass as P was in possession of the car even though they were not the true owner.
Possession without actual physical possession
Penfolds Wines Pty Ltd v Elliot
(1946) 74 CLR 204
Asportation (moving good from one place to another)
Kirk v Gregory
(1876) 1 Ex D 55
The mere movement from one location to another (asportation) can constitute trespass. Here the D moved the P jewellery from one room to another, that is trespass was committed by asportation of the jewellery.
-applies when there is total deprivation or destruction of the goods
-dealing with good in a manner that is inconsistent with the P possession or right to immediate possession
-deals with the P right to possession of the goods
-P with right to immediate possession may sue in conversion
without physical custody
Wilson v Lombok
 1 All ER 740
physical custody of goods without possession in the legal sense
Burnett v Randwick City Council
 NSWCA 196
P ran a gym in a premises owned by the D. Equipment in the gym was not owned by the P, but by corporation of which the P were sole directors. P were lawfully evicted by the D and the equipment was left behind. The P failed to sue for conversion as they had no right to in their personal capacity
Better right to possession
Chairman, National Crime Authority v Flack
(1998) 86 FCR 16
Police removed a suitcase of money from the P apartment for evidence in a drug investigation. The P had never seen the suitcase, and it was subsequently not used as evidence. The P sued in conversion to retrieve the suitcase and was successful, even though she was not aware of its existence. The court rejected the argument by the D that the P had not established title sufficient to sue in conversion.
Esanda Finance Corp Ltd v Gibbons
 NSWSC 1094
The P moved to have the D plea of
stuck out, as the argument of a third party having a better right was not relevant, what was relevant was the the P had better title to possession than the D, which was the case.
Bailment; of goods occurs when the owner voluntarily transfers possession of them to another, while retaining ownership. The owner is the bailor and the possessor the bailee
Penfolds Wine Pty Ltd v Elliott
(1946) 74 CLR 204
There was no conversion in this case however the P was entitled to sue in conversion, even though it did not have possession of the bottles at the relevant time, because it had a right to immediate possession of them as the owner.
P made and sold wine in bottles with its name branded on the bottle, the bottles subsequently remained the property of the P at all times. The D filled the bottles which were bought in by customers with wine which he sold in bulk. The issue was whether the D had converted the P bottles. It was found that the D was not guilty of conversion, as he had not denied the P right to possession of the bottles, he had merely returned them to the people who had bought them in. It was not an act derogating from the proprietary right of the P.
Bailor may recover goods not in physical possession
Bailment at will
-Bailor loans the goods at there will, and as such is recoverable at the bailors will (this is different to fixed term bailment, where the goods are loaned by the bailor for a fixed term)
Perpetual Trustees & National Executors of Tasmania Ltd v Perkins
(1989) Aust Torts Reps
The P inherited a portrait, to which they passed on to their brother on long term loan, who subsequently passed it on to another brother who passed away. The deceased brothers family sold it to the Art Gallery of SA. The P demanded the return of the art. The courts held that the D was guilty of conversion as the P title to possession was better than the D.
Fixed term Bailment
loaned for a fixed period, this can allow the bailee to sue in conversion against the bailor if the term is not over
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd
(1961) 106 CLR 477
P was the bailee of a truck which it was buying on hire purchase from the D (also bailor). D repossessed the truck. P successfully sued the D in conversion as the High Court held that the bailment was not bailment at will, and the P had done nothing to justify the D termination of the bailment.
Bailor can sue if the bailee breaches the terms of the bailment.
Citicorp Australia Ltd v BS Stillwell Ford Pty Ltd
(1979) 21 SASR 142
P bailed a car to a bailee on hire purchase agreement, the bailee subsequently sold the car to the D. P sued D in conversion even though the initial bailment had not been bailment at will, because the fraudulent sale of the car by the bailee was an act repugnant of the bailment, and had the right of revesting in the bailor the right to immediate possession of the car.
The bailor right to sue arises the moment the bailee breaches the terms, however this will always come down to the terms of the bailment
The Anderson Group Pty Ltd v Tynan Motors Pty Ltd
(2006) 65 NSWLR 400
It was ruled that a clause in the contract of bailment that seeks to limit the manner in which the bailee's right to possession can be terminated must do so in the clearest express terms to have effect.
If not bailment at will then the P cannot sue in conversion, as they do not have right to immediate possession
in this scenario the D may pled
by arguing that the bailor has not right to immediate possession as the P does
Typically co-owners cannot sue each other in possession
Gwinnett v Day
 SASC 43
Held that the P could not sue the D as they were the co-owners in cattle. Conversion in this scenario could only occur when the D act amounts to the destruction of the property, or otherwise permanently destroys the right of the P to possession, i.e. selling the property to a third party which gives good title to the property.
Hoath v Connect Internet Services Pty Ltd
(2006) 229 ALR 566
P registered an internet domain. P allowed the D to assume control of the domain name. D later transferred registration of the domain name and several IP addresses and an AS (autonomous system) from the P to the D. P sued alleging conversion of the domain, IP and AS number. The supreme court held that there could
be conversion of intangible property
In considering this there can be conversion of items like cheques as there is a tangible item, that is the paper cheque see
Perochinsky v Kirsher
 NSWSC 400
Acts that constitute conversion
-'dealing with goods in a manner repugnant to the immediate right in possession of the person who has the property'
-disposal of goods by sale, pledge or other intended transfer of an interest followed by delivery, of the destruction or change of the character of a thing
-appropriation evidenced by refusal or other denial to title
-acts that dispossess the P
Bunnings Group Ltd v CHEP Australia Ltd
(2011) 82 NSWLR 420
P made wooden pallets available to hirers under a pooled pallet system. Hirers are required to continue payment for hiring regardless if they have passed the pallets onto a third party who did not take on the obligation to take over payment to the P. If the hirer lost track of the pallet they would pay a compensation fee and cease to pay any further hire payments. These pallet were referred to as non commercial pallets (NCP). The P demanded the return of all NCP, and subsequently sued in conversion. The P was successful as the act of retaining the goods was repugnant to the owners right in possession. For possession to be conversion there must be a demand.
Must be intentional
Ashby v Tolhurst
 2 KB 242
P parked a car in the D car park, one of the D car park attendants negligently allowed a stranger to drive it away, this did not constitute conversion by the D as attendant had not intentionally dealt with the car in a manner that was inconsistent to the P immediate right to possession
Although the act must be intentional, it is not necessary that the D must intend to dispossess the P.
The D can still convert the goods without knowing of the P existence, and without dishonest intent. It is a tort of strict liability
D bought a car from a car yard without any knowledge of the P. It was found that conversion had been committed as the act of buying the car was intentional, and was inconsistent with the owners right to immediate possession.
Payne v Dwyer
(2013) 46 WAR 128
D was found not have committed conversion when he sold gravel that contained minerals belonging to the P, as the it was not the intention of the D to deny the P possession of the minerals.
-wrongful detention of goods after the demand for their return has been made to the person with the right to immediate possession
-remedy for detinue is usually an order to return the goods, where as conversion is damages to the total value of the goods converted (see remedies module for greater detail)
John F Goudling Pty Ltd v Victorian Railways Commissioners
(1932) 48 CLR 157
Detinue can arise out of the negligent act of employees, which may not amount to conversion, it can amount to detinue. It may or may not involve conversion, this will depend on the circumstance of the loss.
P goods were delivered by the D employee to persons not authorised to receive them. P demanded the return of the goods however the D was unable to do this. The Railways Act required that the P must bring actions against the D within 6 months of the incident , however the P bought the action within 6 months of the complaint. It was held that the P actions was not time barred by the Act . The D failed to deliver the goods on the P request which is action in detinue. As this action occurred less than 6 months before the P sued, it was not time barred by the Act.
Unintentional loss by the bailee can give rise to detinue but not conversion
Most cases of detinue will give rise to conversion , because the refusal to deliver the goods by the D who intends to keep them or sell them to someone else will also give rise to an action in conversion
What constitutes detinue depends on the nature of the demand by the P
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd
(1993) Aust Torts Reps
P sued in detinue against the D on failure to return some machines. P action in detinue failed because their request did not state where the machines were to be delivered and to whom, and because the P knew where the machines were they should have been able to repossess them without interference .
Papathanasopoulos v Vacopoulos
 NSWSC 502
P and the D engagement was called off, and the D tried to return the engagement ring to the P who rejected it in hope that they would reconcile. The D eventually threw the ring out, and the P sued in detinue as the ring was not returned when requested. The P succeed in the action as it was deemed that even thought the D rejected the ring, she became the bailee by holding on to it, and was obliged to return it on the request of the P, as such failing to deliver the P request amounted to detinue.
Can sue in detinue if there is a better right to possession
Premier Group Pty Ltd v Followmont Transport Pty Ltd
 2 Qd R 338
D was the sub-sub-bailee to the P. The sub-bailee express owed money to Followmont and refused to deliver the goods. The P demanded the goods back, and the D refused to return them. It was deemed that the P had a better right to possession, hence was able to sue in detinue