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Interference With Goods Notes

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V. Interference with Goods Trespass, Conversion and Detinue Some concepts

* A bailment - a bailment is a transaction where the owner of goods (the 'bailor' ) hands over goods to another (the 'bailee' ) but without passing over the title (rights of ownership). Types of possession: there are three types of possession of goods:

* Actual possession (also called 'constructive' possession).

* A right to immediate possession.

* A future or reversionary right to possession. The jus tertii defence - a claim is barred if there is a third party with superior rights.

* There is some confusion as to when one can plead jus tertii, because it failed in all of the cases below.

* Maybe this is because of the principle that jus tertii will not aid a wrongdoer - ie, a trespasser or a person who converts property cannot rely on jus tertii to bar a claim. Trespass An intentional or negligent interference with goods in the possession of the plaintiff is a trespass provided that the interference is direct, for example, damaging or seizing one's bag or pen etc.

* In the possession of the plaintiff means actual possession, i.e., the goods were physically at the possession of the plaintiff at the time.

* In very rare circumstances, an immediate right to possession constitutes actual possession and thus allows an action in trespass: Wilson v Lombank Ltd (1963) 1 All ER 740

* It is actionable without proof of damage. The remedies include:

* Damages.

* In some cases, the equitable remedy of specific restitution (return of the chattel itself).

* Self-help is also available (ie, a person is allowed to use reasonable force and retrieve the chattel itself). Title to sue for trespass to goods requires the plaintiff to be in possession of the goods at the time of the trespassory interference: Penfolds Wines v Elliott (1946) Trespass do not need to prove damage: Penfolds Wines v Elliott (1946) A person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title: The Winkfield [1902]

1. The complainant is a drover and on Easter Saturday 1944 he was droving in the vicinity 2000 ewes.

2. On his way to some unfenced land north of the land where the baits were picked up he met the defendant, and was told by him that the paddock north of the Sanctuary in the vicinity was poisoned.

3. With regard to the land where the baits were picked up he was warned that there were baits all along the creek.

4. The complainant apparently thought the defendant was bluffing about the poison along the creek., and a day or so later rode down along the creek with his dogs.

5. He saw no sign of baits and two days later moved his sheep in and brought his dogs with him.

6. Shortly after the dogs picked up baits and died. Held, the defendant is liable in action on the case.

* Accordingly, a bailee in possession of goods may recover the full value of those goods from a wrongdoer who has interfered with them. However, the bailee is under an obligation to account to the true owner. Hutchins v Maughan [1971] VLR 131

* An injury is said to be direct when it follows so immediately upon the act of the defendant that it may be termed part of that act;

* In direct injuries the defendant is charged in an action of trespass with having done the act complained of;

* it is consequential on the other hand, when, by reason of some obvious and visible intervening cause, it is regarded, not as part of the defendant's act, but merely as a consequence of it.

* In consequential injuries he is charged in an action of case with having done something else, by reason of which (per quod) the thing complained of has come about.

1 Title to Sue

1. Elliott, the respondent, was a hotelier who, from time to time, sold bulk wine to customers who themselves provided bottles in which to carry it away.

2. The appellant was a company which made wine and sold it in bottles the ownership of which it retained.

3. The company's bottles were embossed with the company's name and its sale and invoice informed customers that the bottles remained the property of the company and noted that once the contents were used, 'the bottle must be forthwith on demand handed or given over or returned to the said company'.

4. On 7 November 1944, the defendant refilled the bottles which was provided by the defendant's brother, with wine other than the plaintiff 's wine and delivered the bottles (but did not purport to sell them) to a third party, Spencer Claude Gascoyne Moon, in exchange for the payment of eight shillings, being the cost of the wine in the refilled bottles.

5. The plaintiff 's application for an injunction was refused in the trial and first appeal.

6. On appeal by the plaintiff. Held, (by majority) dismissed the appeal on the ground that, in the absence of evidence of systematic dealing by the defendant with the plaintiff 's bottles, the equitable remedy of injunction (as opposed to the common law remedy of damages) was not appropriate.

V. Interference with Goods

Penfolds Wines v Elliott (1946) 74 CLR 204 Title to sue for trespass to goods requires the plaintiff to be in possession of the goods at the time of the trespassory interference. Title to sue for conversion of goods requires the plaintiff to be in possession or have a right to immediate possession of the goods at the time of wrongful interference. The wrongful use of another person's goods may constitute the tort of conversion.

* A bailment is determined by any act of the bailee which is wholly repugnant to the holding as bailee, and thereupon the bailor has an immediate right to possession.
The determination of the bailment may enable the bailor to maintain an action of conversion, but not of trespass.

* A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage.

* The handing of a chattel without authority is a trespass.

* Unauthorised user of goods is a trespass;

* Unauthorised acts of riding a horse, driving a motor car, using a bottle, are all equally trespasses;

* Even though the horse may be returned unharmed or the motor care unwrecked or the bottle unbroken.

* The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property or special property in the chattel.

* In the present case, it cannot be trespass because there is, on the part of the defendant, no infringement upon the possession of any one.

* The right to possession, as a title for maintaining trespass, is merely a right in one person to sue for a trespass done to another's possession; that this right exists where the person whose actual possession was violated held as servant, agent, or bailee under a recoverable bailment for or under or on behalf o the person having the right to possession.

* It cannot be conversion, because, on his part, there is no act, and no intent, inconsistent with the plaintiff 's right to possession and nothing to impair or destroy it.

* To fill the bottles with wine at the request of the person who brought them could not in itself be a conversion. it was not a use of the bottles involving any exercise of dominion over them, however transitory.

* If the defendant had meant to sell these bottles to the inspector, then, apart rom the effect of the inspector's authority to act for the plaintiff, no doubt the delivery to him would involve a conversion.

* It cannot be an innominate injury to the plaintiff 's right to possession for which the remedy would have been a special action on the case, because he did no damage to the plaintiff 's goods, the bottles.

* Detinue is, of course, irrelevant and so too would have been replevin. As against a wrongdoer possession is title

1. Following a collision off the coast of South Africa between two steamships, "The Winkfield" and "The Mexican", in which "The Mexican" sank and a large quantity of parcels and mail on board was lost.

2. "The Winkfield" admitted limited liability and paid money into court.

3. The Postmaster-General ("The Maxican") filed a motion claiming as bailee the value of certain letters and parcels, which he undertook to distribute among the senders or addresses.

4. The motion was dismissed and the Postmaster-General appealed. Held, Appeal allowed. "The Winkfield" was liable for the lost incurred.

The Winkfield [1902] P 42 The law is that a person possessed of goods as his property has a good title as against every stranger, and that one who takes them from him, having no title in himself, is a wrongdoer, and cannot defend himself by showing that there was title in some third person, for against a wrongdoer possession is title.
Accordingly, a bailee in possession of goods may recover the full value of those goods from a wrongdoer who has interfered with them. However, the bailee is under an obligation to account to the true owner. Conversion

Conversion may be defined as an intentional dealing with goods which is seriously inconsistent with the possession or right to immediate possession of another person.

* For examples, a person taking and selling or modifying goods which belong to another (he is thus depriving him from his right to possess the goods). 2

V. Interference with Goods

* Theft is conversion. A few important points about conversion:

* Absolute ownership or actual possession is not required, only a right to possession.

* The plaintiff has to prove that the defendant was using or "employing the goods as if they were one's own".

* Conversion is decided on the basis of strict liability (ie, no proof of fault, only that the act has been committed): Bunnings Group v CHEP Australia [2011]

1. The defendant was the manager of a steam ferry on the River Mersey.

2. The plaintiff paid the fare for the journey from Birkenhead to Liverpool and boarded the ferry with his two horses.

3. Before the ferry had departed Birkenhead, the defendant informed the plaintiff that he would not carry the plaintiff 's horses and that the plaintiff should take them ashore.

4. When the plaintiff refused, the defendant took the horses from the plaintiff and put them on shore on the landing slip.

5. In the plaintiff 's action of trover for conversion of the horses, the defence was that "the plaintiff had misconducted himself and behaved improperly on board, and that the horses were sent on shore in order to get rid of the plaintiff, by inducing him to follow them".

6. The jury found a verdict for the plaintiff, and awarded $40 damages representing the value of the horses.

7. On appeal by the defendant. Held, Appeal allowed.The conduct of the defendant was not a conversion.

1. The plaintiff owned and had the right to immediate possession of pallets.

2. The plaintiff hired the defendant for the carriage and storage of those pallets.

3. A number of those pallets were used by the defendant in the course of its retail hardware business without the plaintiff 's consent in circumstances amounting to conversion.

The remedies for conversion are as follows:

* Damages (the market value of goods at the time of conversion plus consequential losses).

* Where damages are inadequate, specific restitution might be granted.

* Self help. The essential elements, or basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession: Penfolds Wines v Elliott (1946); Bunnings Group v CHEP Australia [2011]
Title to sue for conversion of goods requires the plaintiff to be in possession or have a right to immediate possession of the goods at the time of wrongful interference: Penfolds Wines v Elliott (1946) The defendant's Intention to interfere with the goods has to be proved: Penfolds Wines v Elliott (1946); Bunning Group v CHEP Australia [2011]
In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner: Fouldes v Willoughby (1841)

* A simple asportation or removal of goods, without any intention of making any further use of it, is not sufficient to establish a conversion: Fouldes v Willoughby (1841)

* Innocence or good faith is not a defence of conversion: Consolidated Co v Curtis & Son [1892]
The general rule is that between wrong-doers there is neither indemnity nor contribution: the exception is where the act is not illegal in itself: Adamson v Jarvis (1827) The very denial of goods to him that has a right to demand them is an actual conversion: Baldwin v Cole (1705)

* Mere unauthorised retention of another's goods is not conversion. Mere possession without title is not necessarily detrimental to rights of owner. For conversion, detention must be adverse to owner: Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002]
The systematic wrongful (i.e. unauthorised) use of the plaintiff's goods by the defendant may constitute conversion where the use of the goods is with an intention to exercise permanent or temporary dominion over them: Model Dairy v White (1935); Penfolds Wines v Elliott (1946) Contributory negligence is not at common law a defence to an action for conversion: Day v Bank of New South Wales (1978) Wrongful taking Fouldes v Willoughby (1841) 151 ER 1153 In order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner.

* Accordingly, a simple asportation or removal of goods, without any intention of making any further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion. Bunnings Group v CHEP Australia [2011] NSWCA 342

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