Conversion & Detinue

Someone has my property and won't give it back.  What can I do?  

We hear this scenario all too often; you've left your personal property at a mate's place, and now they are refusing to give it back.  Or maybe they've sold it, or given it away.  Depending on the particular circumstances, you may have a claim for conversion or detinue.

What is Conversion?

Conversion is when someone does something with your personal property that is inconsistent with your rights as owner of that particular property.  For example, say John lends his lawn mower to Bob and then Bob gives the lawn mower to Sharon - that's conversion.

Using this example, to bring a claim for conversion, John must be able to prove:

1. He is the owner of the lawn mower (or, at the very least, is entitled to exclusive and immediate possession of the lawn mower);
2. Bob's use of the lawn mower is inconsistent with John's right to the lawn mower; and
3. Bob's conduct causes John loss or damage (such as John being out of pocket to buy a new lawn mower).

The relief available for conversion includes:

• damages (being the market value of the property at the date of the conversion); and
• consequential losses.

Consequential losses are those that result from the offending conduct.  For example, if the conversion relates to hire equipment that is not returned at the conclusion of the hire period, the owner would be entitled to compensation for the replacement cost of the equipment, together with any lost income.  Or, using the example above, if John operated a lawn mowing business and lost profits because he did not have the lawn mower.

What is detinue?

Detinue is the wrongful detention of another person's goods, and is akin to conversion.  However, unlike conversion, a claim in detinue will only arise if the owner has demanded the return of the goods, which has been refused or ignored.  Again, using John and his lawn mower as an example, but Bob still has the lawn mower.  If John demands Bob return the lawn mower but Bob refuses to hand it over, John will have a claim in detinue.

In order to bring a claim for detinue, John must be able to prove the following:

1. He is the owner of the lawn mower (or, at the very least, is entitled to exclusive and immediate possession of the lawn mower);
2. Bob's use or retention of the lawn mower is inconsistent with John's right to the lawn mower;
3. John has demanded that Bob return the lawn mower to him;
4. Bob has failed or refused to return the lawn mower (or allowed John to collect the lawn mower); and
5. Bob's conduct causes John loss or damage (such as John being out of pocket to buy a new lawn mower).

The relief available for a claim in detinue includes:

• an order for the return of the goods;
• in the alternative, damages instead of the return of the goods (being the market value of the property at the date of the detinue); and
• consequential losses.

Although we have used a lawn mower as an example, both conversion and detinue apply to any personal property (i.e. any property that is not real estate).  We have seen examples including motor vehicles, massage tables, and industrial equipment, to name a few.

How long do I have to bring a claim for conversion and/or detinue?

Section 12 of the Limitations of Actions Act 1974 provides that there is a six year time limit to bring a claim for conversion and/or detinue.  That time limit commences from the date the original cause of action arose.  For conversion, that will be when the goods are dealt with (e.g. the date Bob gives the lawn mower to Sharon) while for detinue the six years will start from the date of the demand.

If you do not commence court proceedings, then you may lose your legal right to sue the other person and therefore your right to claim ownership of the items.

Can someone lawfully withhold my goods?

Yes.  In certain circumstances, another person can withhold your property from you to secure payment for work performed.  This is known as a lien.

There are two types of liens; general and particular.  A general lien allows a person to detain goods until all monies owed to them are paid.  For example, a solicitor may exercise a lien over a client's file until all debts have been paid (and not just for the particular matter to which the detained file relates).

On the contrary, a particular lien can only be exercised over goods for their related debts.  For example, a mechanic may exercise a lien over an engine he or she has reconditioned, by refusing to return the engine to the owner until they receive payment for performance of that work.  The mechanic could not refuse to return a different engine for which he or she has been paid in full.

It is important to note that this can be a complex area of law, and is rarely straightforward.

If you think you have a claim for conversion or detinue, contact one of our local experts today on 07 4963 2000 or via our online contact form.