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LAW OF TORT BRIEF NOTES ON DETINUE, CONVERSION AND TRESSPASS TO

GOODS.
A) Detinue.
Detinue is the wrongful retention of the possession of the chattel. Detinue can be sought
following a detention of goods, where there has been a demand for their delivery by a person
who has legal right to immediate possession of those goods and a subsequent refusal by the
current possessor.
In the case of Christine Bitarabeho v Edward Kakonge 1 , it was held that the appellant
continuous retention of the vehicle belonging to the respondent was a detinue as it was not
bought by her late husband and therefore should return the vehicle and pay general damages for
wrongful retention of the vehicle.
The tort of detinue occurs when a person wrongfully detains a person’s property and
unreasonably refuses to return that property to the rightful owner. 2 Detinue is similar to the Tort
of Conversion, except for a specific element: it is a condition of the action of detinue that the
plaintiff has made demand for the return of goods, and the demand has been refused. 3 The
plaintiff must also have a right to immediate possession of the chattels. 4
There are four elements required to establish detinue:
1. a demand is made;
2. the demand is refused;
3. the refusal is unreasonable; and
4. there is consequential damage. Demand made
The plaintiff must make a demand for the chattel to be returned and be entitled to the chattel at
the time of the demand. The demand is imperative. 5 Demand refused
The defendant must refuse that demand (whether expressly refusing or failing to respond at all).
On some occasions, a defendant who does not have possession of the chattel and has lost that
possession may still commit detinue by denying the plaintiff their right to possession. 6 Refusal
unreasonable
Where the chattel is in the defendant’s possession, the refusal to return the chattel must be
unreasonable
Consequential damage
1 SCCA No. 4 of 200 2 Ming Kuei Property Investments Pty Ltd v Hampson [1995] 2 Qd R 251,
256 3 ohn F Goulding Pty Ltd v Victorian Railways Commissioners [1932] VLR 408; Lloyd v
Osborne (1899) 20 LR (NSW) 190 4 Russell v Wilson (1923) 33 CLR 538 5 Lloyd v Osborne
(1899) 20 LR (NSW) L 190 6 Black Diamond Group Pty Ltd v Manor of Maluka Pty Ltd &
Anor [2014] QSC 219 [
As a result of the defendant’s conduct, the plaintiff has suffered a loss. This will usually be
calculated as the value of the chattel.
Once the above elements have been established, an action for detinue can be made out.
How can detinue arise?
Detinue is established by a demand for the chattel by the plaintiff and a refusal of that demand by
the defendant. A conditional demand that later becomes unconditional will also be enough to
prove a cause of action in detinue. 7 Detinue can arise in two ways:
1. Where the defendant has actual possession of the chattel (any goods – for example, a lawn mower
or excavator) and refuses to return it to the plaintiff on their demand; or
2. Where the defendant was in possession of the plaintiff’s chattel under bailment (i. the good had
been temporarily provided to the defendant for a particular purpose) and has wrongfully parted
with that chattel. It is important to note that even if there is a case of a wrongful parting with the
chattel, there must be a demand and refusal for detinue to arise.
Who can sue?
The plaintiff must have a right to immediate possession at the time of the refusal that derives
from some proprietary or possessory interest in the chattel. 8 The interest in the property must
also be a lawful interest. 9 If the plaintiff does not have an immediate right to possession of the
goods or chattels, then the plaintiff cannot sue for detinue. Defences to detinue
There are several potential defences available for detinue. These include:
Consent
It is a defence to show that there can be no trespass if the interference occurs with the plaintiff’s
consent. Consent can either be express or implied. 10 Jus tertii
It is a defence to show that a third party has a better right to possession than the plaintiff.
No right to possession
The legal ownership of a chattel can be complicated. Registration of a vehicle is not proof of
ownership, for example. If someone has bought a chattel, ownership may be passed to another
through it being given as a gift. There may be contractual obligations (in particular for
7 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 8 Russell v Wilson (1923) 33
CLR 538 9 Carolan v New South Wales [2014] NSWSC 1566 10 Pwllbach Colliery Co Ltd v
Woodman [1915] AC 63; Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476