LWB147 Week Five Lecture Notes
Trespass to Personal Property
Also known as ‘goods’ or ‘chattels’.
Does not refer to actual property i.e. land.
It is recognised by the law that some people may have legal title to certain property.
o See Doodeward v Spence (corpse is not personal property).
o R v Kelly (parts of a corpse may be personal property).
Trespass protects possession not necessarily ownership.
There are several kinds of possession:
o Actual possession – goods are in physical control at time of trespass (e.g. driving a car).
o Constructive possession – goods are not in physical control at time of trespass but intention to exert
control exists (e.g. car in garage at home, can be driven any time).
o Immediate right to possession – not in possession but have the right to gain possession (e.g. when
you have lent your car to a friend).
Trespass to chattels
o A direct interference with personal property in the possession of the plaintiff.
o Dealing with personal property in the possession of the plaintiff in a manner inconsistent with their
rights of possession.
o The wrongful detention of goods after a demand has been made for their return.
Action 1: Trespass to Chattels
The direct interference with personal property in the possession of another without lawful justification.
Elements must include:
Title to sue
Direct interference with goods
Fault of the defendant
Element 1: Title to sue
The plaintiff must have actual or constructive possession of the chattels at the time of interference.
See authority Penfolds Wines v Elliott.
There are four exceptions where an immediate right to possession will give the plaintiff title to sue [5.8]:
1. A trustee may sue for direct interference with goods in the possession of a beneficiary.
2. A personal representative (such as a executor or administer of a deceased estate) may sue for
the trespass to goods of the deceased occurring prior to the personal representative taking
3. The owner of a franchise may sue for an interference with franchise chattels which took place
prior to the actual possession being taken by the owner.
4. A person with a right to immediate possession may sue in trespass to chattels where the direct
interference by a third person is to possession of a servant, agent or a bailee holding under a
a. See Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
For the purpose of this unit we will be focusing on the fourth exception, the bailment exception. The Bailment Exception
A person with a right to immediate possession may sue in trespass to chattels if a third person has
interfered with the possession of a servant, agent or bailee holding the goods under a revocable bailment.
What does ‘bailment’ mean?
Bailment refers to the legal relationship that arises upon the delivery of goods from one person (the bailor)
to another (the bailee) for some purpose upon a contract, express or implied, that after the purpose has
been fulfilled the goods will be redelivered.
o Hobbs v Petersham Transport Co Pty Ltd
Immediate right to possession and bailment
There are two kinds of bailments – bailment at will a.k.a. a revocable bailment, and a bailment for a term.
Bailment at will/revocable bailment
This is where the bailor has an immediate right to possession and can demand the return of goods at any
time. For example, when lending a car to a friend on the condition that you may have it back at any time you
wish, you have entered a revocable bailment.
Bailment for a term
This is where the bailor surrenders possession of the goods to a bailee for a temporary period of time as
agreed upon, or until a particular goal or purpose is achieved at which point goods are to be returned. For
example, when giving a watch to a jeweller to be fixed, you are entering a bailment for a term which ends
only when the purpose (here, repairs of watch and payment) is achieved.
If, however, the bailee breaches the terms of the agreement or the purpose of the bailment is not met, then
the bailor has immediate right to possession which converts the bailment back to a bailment at will.
Bailment exception and title to sue
Must be able to prove that at the time of interference:
o The plaintiff (bailor) had an immediate right to possession under the bailment.
o The third party interfered with the goods
Note: this does not apply if the bailee voluntarily delivered the goods to the third party or if
the bailee interfered with the goods.
Element 2: Direct interference with goods
It is considered a direct interference when the act of the defendant makes immediate contact with the
goods of the plaintiff, without any voluntary human intervention.
Element 3: Fault of the defendant
The act must have been caused by either intention or neglect.
The motive of the defendant is irrelevant.
Remedies for trespass to chattels
Trespass is actionable per se.
Damages available if no loss – nominal damages.
Damages available if loss suffered – compensatory damages:
o Typically awarded for decrease in value or cost of having goods repaired.
o May also be awarded if there is a foreseeable consequential loss – that is, for example, if a
limousine driver’s vehicle is stolen and as a result the driver loses profits he may claim back the
Action 2: Conversion
Conversion occurs when a defendant, without lawful justification, deals with the goods in a repugnant manner.
Elements must include:
o Title to sue
o Direct interference which amounts to a repugnant dealing
o Fault of the defendant Element 1: Title to sue
Plaintiff must be in possession or have an immediate right to possession at the time of the interference
o Authority: Penfolds Wines v Elliott.
Note: Bailment can give rise to an immediate right to possession but is not an exception to title to sue as in
trespass to chattels; therefore you do not need to prove an exception in bailment.
Element 2: Direct and repugnant interference
The defendant must have intended to deny the plaintiff’s right or to assert a right inconsistent.
Examples of this include:
o Destruction of goods.
o Change to nature or character of goods.
o Unauthorised use of goods.
o Disposal of goods by sale and delivery.
o Delivery to wrong person.
o Wrongful taking of goods.
Note: Casual and harmless misuse of another person’s goods without intent to assert dominion over the
good will not amount to a conversion.
Element 3: Fault of defendant
In conversion, the act must be committed either voluntarily, intentionally or negligently.
o “The foundation for the action of conversion rests ... upon the unwarranted interference by the
defendant with the dominion over the property of the plaintiff from which injury to the latter
results.” – Hollins v Fowler
Remedies for conversion
The damages awarded are the value of the goods at the time the conversion took place.
o In a sense this is an enforced sale because the defendant will be forced to pay the value of the goods
to the plaintiff and will then become the owner of the goods.
o There is an onus of proof upon the plaintiff to prove the value of the goods at time of