Torts sem1 - summary Detinue PDF

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Detinue: action on the case -

Grounded on the present possession or immediate right to possession, but consists of a failure to return goods(NN).

Authority: Philpott v Kelley (1835) Elements There must be a refusal by D to comply with a demand made by P to yield possession of goods.

Cases - Grant v YYH Holdings Pty Ltd held that a person who has immediate right to possession of chattel must have made a lawful demand for a return of possession of the chattel - P must assert the right to regain possession and D must then refuse: City motors v Southern Aerial HCA - Reglon Pty Ltd v Hill [2006] reaffirmed this stating that there must be a specific demand for return of goods, made before the commencement of any court proceedings - Rosecell Pty Ltd & Ors v JP Haines Plumbing Pty Ltd & Ors supported this D must have intended the - Refusal can be by words or conduct: John F Goulding v refusal Victorian Commissioners HCA D’s Conduct must cause P to be - John F Goulding v Victorian Commissioner held that deprived of the possession of the that for an action to be successful in detinue the plaintiff goods. must be deprived of the goods as a result of the defendant’s conduct. Was damage a result - Penfolds held that there needs to be considerable (long lasting?) damage to the chattel for the action in dentine to be complete.

Onus of proof: p to proves that the goods were in d possession and a proper demand had been made onus then shifts to D to disprove faults

Wong v Maroubra Automotive Refinishers Pty Ltd; Ayres v Maroubra Automotive Refinishers Pty Ltd (No 2) [2015] NSWSC 222 [41] The elements of the cause of action in detinue are: 1. that a person having an immediate right to possession of a chattel has made a lawful demand for the return of possession of the chattel; and 2. that the demand was not complied with in circumstances where it constitutes a wrongful refusal to deliver up the chattel: a. see Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [43] per McColl JA; Tobias AJA agreeing at [98] .......