Trespass - Tort Law
Trespass to Goods
The owner of any chattel – a physical item which is owned by someone – has a right not to have their chattels interfered with. Like other trespasses, trespass to goods includes even the slightest unwelcome touch of someone else’s goods, not just recognisable damage. Conversion is another tort which involves the wrongful use of another’s property – converting it to one’s own possession. A suit in conversion is appropriate where either theft or borrowing without consent has occurred. A suit in trespass to goods, on the other hand, is more appropriate to vandalism, and other forms of interference.
Immediate right of possession
To determine whether a trespass to goods occurred against one person or another, you first need to understand the property rights held by different interested parties. This is because ownership can mean different things. A person without any current right to control the goods in question cannot sue for a trespass. Some rights to possession may arise from contracts and qualify as personal rights only. To sue for trespass on any kind you need not a personal right to the thing, but a proprietary right.
Having established a proprietary right, the plaintiff then must establish that they have a right to take possession immediately. In Wilson v Lombank the plaintiff was able to establish their lawful right of possession in spite of not being in physical possession at the time when the trespass occurred. The plaintiff, a car dealer named Wilson, bought a car from a vendor who had no legal title to it due to a chattel mortgage over it – and therefore could not pass the title on. The car needed repair, and the plaintiff left it at a garage, where he had monthly credit terms. The repairs were completed and the car was left in front of the garage. Meanwhile there had been a purported – though invalid – sale to the defendants, Lombank Ltd. While the car was in front of the garage a representative of the defendants, thinking incorrectly that they had legal title to the car, took it away. The defendants subsequently discovered who held true legal title and delivered the car to the true owner, Mercantile Credit Co Ltd who held the mortgage. Wilson sued for trespass to goods.
Ordinarily the fact that the plaintiff had not yet paid for repairs would defeat his claim to a immediate right of possession. This is due to a feature of property law in which a repairer (just as a mortgagee or similar does) acquires a property right called a lien over the item being repaired so that they can withhold it until the agreed payment is made. However, the ongoing credit relationship that he had with the garage meant that he did not need to pay to pick up his car. Thus there was no condition upon re-taking the car back from the mechanic and Wilson never surrendered his immediate right of possession. The plaintiff’s claim was not defeated by the fact that the Defendants had subsequently returned the car to the legal title holder (Mercantile Credit). The Defendant was found to have trespassed by taking the car, and the existence of a third party with superior rights was found to be irrelevant.
If the plaintiff had surrendered their right to possession, such as if they were to pay not on account, but for the whole repair prior to pickup, then their immediate right of possession would be in limbo until payment was received. With it also, the right to sue in trespass would be unavailable.
Conversion
Conversion occurs when one party deals with goods in a manner inconsistent with the true owner’s immediate right of possession. So, if you come into possession of someone else's property by any means and do something they would not want done with it, conversion is likely to have occurred. This includes any alteration or damage to the goods or unauthorised usage of them. A recent case exemplifying this is Chep v Bunnings, where the hardware chain, Bunnings, had large numbers of shipping pallets from pallet provider, Chep, some of which were held under a hire agreement, and some of which were not. Those which were not hired were to be returned to Chep, or one of Chep’s hirers, forthwith as is normal practice. Bunnings instead, due to its failure to maintain adequate records, maintained possession of the non-hired pallets in among the hired pallets for a number of years. The error was only discovered by Chep when checking 82,216 pallets returned by Bunnings in October 2007. Only 17,526 of these were subject to hire agreements. Bunnings’ conduct was found to be contrary to Chep’s right to possession.
Detinue
The difference is that detinue focuses on a person’s refusal to return goods to the rightful owner on demand. Thus an item lent or left accidentally, or an item hired out can become the subject of detinue when the person in physical possession fails to comply with a demand for return.
In Chep v Bunnings, Bunnings was found to have committed detinue by failing to return the non-hire pallets as required. From 2002 they had held large numbers of shipping pallets, having returned only a few previously. In May 2007 Chep demanded the return of the pallets and a court order was issued in August 2007 requiring the return of the same. Bunnings did not comply until October 2007. This delay constituted detinue.
A more obvious form of detinue is to be found in permanent keeping of goods – such actions that criminal law would deem to be theft. The basic elements in a classic case of detinue involve a demand for return and refusal to return. But these are not essential, such as where it can be shown that the defendant would have refused to return the goods, this is sufficient to constitute a detinue.
Wilson v Lombank Ltd (1963) 1 All ER 740.
Chep v Bunnings [2010] NSWSC 301.