Trespass to goods notes PDF

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TORTS Trespass to Goods (Umbrella term for three things) Trespass of Goods Direct Interference of goods (generally minor interference)  As Conversion: Denial of ownership amd possessory rights (generally more major interference, eg destroying property ASSIGNMENT)  Detinue: Refusal to return goods to the lawful owner (contingent on a demand being made) Trespass to Goods Defined: Is an act by the defendant that directly interferes with the plaintiff’s lawful possession of goods. 

Trespass to Goods protects the person in possession of Elements: 1. Positive act by D (plaintiff proves) 2. D’s act must directly cause physical interference with P’s exclusive possession of good. (Hutchins and Morne) (physical interference does not have to include damage).( plaintiff proves) 3. D must have intended to cause that interference (or been reckless or negligent). (Fault element) (defendant proves) Hamps v Darby - shooting plaintiffs pigeons Cressy v Johnson - Taking documents and mobile phones for the purpose of Family Court proceedings constituted trespass. Can unwanted internet access constitute trespass? Unauthorised access to password-protected parts of the plaintiff’s website could be trespass. US is best example of allowing internet access to constitute trespass of goods. Websyte Corp Pty Ltd v Alexander (No 2) [2012] FCA 562 (for assignment) Possession or ownership  Trespass to goods is a wrong to possession  A person who has possession of goods may sue for trespass even though they are not the true owner.  Allows for ‘construction possession’ without actual physical custody. (E.g parked car) Wilson v Lombank (highlights this idea) -Plaintiff succeeded against Defendant car garage who took car left with them and returned it to the purported legal owner. Defence of jus Tertii (right of a third person) -This is where the defendant asserts the P had no right to possession either because: A. the right is vested in a third party, or; B. Various rights are divided between a third party and the defendant C. If P has actual constructive possession defence will not succeed.

Conversion Consists of dealing w goods in a manner inconsistent with the plaintiff’s possession or right to immediate possession rather than the physical state of the goods. Protects the person in possession or with a right of possession from having it wrongfully interfered with by wrongful dealing,exploitation or disposal through use, sale, or destruction. Elements 1. Positive act of dealing with the goods by D. 2. D’s act must cause P to be deprived of dominion over goods so seriously that D should justly be treated as having effectively taken ownership of the goods. 3. D must have intended to cause P to lose dominion over the goods. (Can’t just be negligence) Examples of Conversion. 1. Destroying the goods 2. Changing the nature of the goods 3. Taking possession of another’s goods so they cannot exercise their right of possession 4. Making use of another person’s good 5. Refusing to deliver goods after a demand (overlaps with detinue) 6. Disposition by sale 7. Misdelivering goods Concerned with possession in the legal sense. SEE: Burnett v Randwick City Council [2006] Plaintiffs ran a gym in premises rented from the defendant Gym equipment was owned by P’s corporation (as opposed to P’s personally) Equipment left behind when plaintiffs were lawfully evicted Held: Plaintiffs could not sue in personal capacity Chairman, National Crime Authority v Flack (1998) Police found and took away briefcase of $433,000 from Mrs Flacks apartment Valid warrant > drug search Mrs Flack had not seen briefcase before and did not know it was in her apartment Mrs FLack sues for briefcase after drug charges dropped HELD: In Mrs Flacks favour, she was the most likely to have legitimate possession. Penfolds Wines v Elliott (1946) Plaintiff can sue if they have a right to possession even without actual possession.     

P made wine -bottles embossed with their name -purchasers bought wine inside them and were to return the bottle D, a hotelier sold bulk wine by filling empty bottles Sometimes defendant would fill bottles owned by P P sues Was dealing with the bottles a trespass to goods? [Held: No. Even though Penfolds creates the bottles and sells the wine in the bottle, Mr Elliot was not trespassing to P’s good..filling the bottles was done with lawful bailment. ]

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Was filling the bottles with Mr Elliot's wine a denial of title (a conversion)? [ Held: 3 says technically there could be a conversion, 2 say no conversion by filling the bottles, Mr Elliot denied P the right to put their wine in the bottles] If it was, did it mean the court should grant an injunction (order stopping conduct) [ No injunction, consequences too dire for community ].

Perpetual Trustees and National Executors of Tasmania (1989)  3 sisters inherit portrait of great-grandparents  Passed on portraits to brother Bill Perkins on long loan  PErkins passes it on to another brother  WHen he died , widow gave portrait to NSW Gallery  Sisters successfully sue for conversion. Can you have conversion of intangible property? No. Finders Keepers Cases Amory v Delamirie (1722)  Chimney sweep by found ring and took it to goldsmith for valuation  Goldsmith took precious stone off the ring and refused to return it Parker v British Airways  P found a gold bracelet in British Airways lounge at Heathrow  Gave it to desk and asked fo it to be returned if it remained unclaimed  British airways sold it and retained money, P sued  Held. P, as finder of the good s who acted honestly, was entitled to sue in conversion. BA as occupier of premises exhibited no intention to control things in lounge. Other than true owner, P was the person with most justifiable possession of bracelet. Detinue Detinue is the wrongful detention of goods after a demand for their return has been made by the person with a right to immediate possession (Davies & Malkin, pg 838). The cause of action in detinue arises when the defendant fails to deliver the goods upon the request of a plaintiff entitled to immediate possession (Mendelson, pg 240). Elements: 1.There must be a positive refusal by D to yield possession of goods to the person who, made after a demand by P. 2.D’s refusal must be unreasonable in all the circumstances. 3.D’s refusal must deprive P of possession of the goods. 4.D’s refusal must have been intentional. Examples: •Refusing to give back borrowed goods after the owner has asked for their return is detinue •Losing the plaintiff’s goods and being unable to return the goods may be construed as a ‘refusal’ •Asking for extra time to check facts will not always amount to unreasonable refusal •Refusing to return goods after a vague, equivocal or unclear demand will not always be detinue

State of Bailment= Done or possessed with lawful authority temporarily( coat check ) Papathanasopoulos v Vacopoulos [2007] NSWSC 502

•P gave D an engagement ring worth $15,250 •D called off engagement and tried to return it – P said keep it. •D puts it in a box with other things – arranges to have it returned to P. •P calls D and tries to reconcile, clearly not successfully because D calls mother and says throw out the box. •Ring – disappears into garbage •Held: When D rejected ring she became bailee of it and was obliged to return it. Failing to do so constituted detinue. Remedies •Trespass to Goods and Conversion: Nominal, compensatory (including aggravated) and exemplary damages may be awarded. •In conversion – full market value of goods at date of conversion. •Detinue: Full value of the goods or return of the goods plus damages.

Everett and Martin (Everyday actions not trespass key case) White v Withers LLP [2009] EWCA...