Have you ever lent someone an item that was never returned? Have you paid a service provider to safeguard or store your belongings, only to discover that they were damaged later on? Has someone sold your goods without your permission?
If the answer is yes to any of the questions above, you may have a claim to recover your goods or recoup their value under breach of contract (if a contractual relationship exists) or tort. This article will deal with the latter.
There are generally 2 causes of action under tort in recovering goods, ie: the torts of conversion and detinue.
Conversion
The tort of conversion arises when there is a deliberate act by someone to deal with the goods of another person which is inconsistent with the owner’s rights, therefore depriving the owner of that property.
If you intend to merely claim for the value of the goods rather than the goods themselves, then commencing an action under the tort of conversion is a suitable route. It is common for litigants to claim for damages instead of asking for the goods back, since the goods converted would probably be damaged, or have depreciated.
To establish a claim under the tort of conversion, the owner must prove:
- The wrongdoer’s conduct was inconsistent with the rights of the owner of the goods;
- The wrongdoer’s conduct was deliberate, not accidental; and
- The wrongdoer’s conduct was so extensive an encroachment on the rights of the owner to exclude the owner from the use and possession of the goods.
The tort of conversion can be committed in respect of any goods. This applies to even shares in a public listed company and treated water.
Liability under the tort of conversion is strict or absolute. This means that the alleged wrongdoer remains liable regardless whether they knew of the owner’s interest in the goods. All the person bringing the claim needs to prove is that the alleged wrongdoer dealt with his or her goods in a manner inconsistent with his or her rights, and that there is intention by the alleged wrongdoer to deny the owner of the goods’ rights.The alleged wrongdoer’s “good faith” is not a defence under a claim for conversion.
As for the remedies, the conventional measure of damages is the value of the goods at the time of conversion, i.e. when the goods were wrongly deprived or misappropriated. The person can also claim for any consequential damage arising from the conversion if it can be justified, for example, where there is a direct loss of profit on a particular transaction due to the goods being converted.
Detinue
Detinue is the wrongful detention of goods, and a refusal to deliver the goods after specifically demanded by the owner. If you want the goods themselves back, then detinue is the route to take.
Unlike the tort of conversion, the person bringing the claim under detinue would have to make a specific demand for the return of the goods. The alleged wrongdoer’s refusal to comply with the demand may be express or by necessary implication.
As for the remedies, you can claim for both the goods itself or for the value of the goods itself including damages for its detention. In the Federal Court case of Perbandanan Kemajuan Negeri Selangor v Teo Kai Huat Building Contractor [1982] 2 MLJ 165, it was held that in a claim for detinue, the remedy would be the return of the goods or recovery of its value, and damages for its detention. The value of the goods is normally assessed at the date of the judgment and not at the date when the alleged wrongdoer refused to return the goods.
If a judgment is obtained for the return of the goods and the Defendant still refuses to return the goods, the Courts may also grant a consequential order for damages to be assessed rather than for delivery of the goods. This is to give effect to the judgment on liability in detinue, in the event of a recalcitrant Defendant.
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This article was written by Sean Ferdinand Ng (Associate) from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
