QUESTION 1:

Discuss with reference to decided cases, the three (3) categories of interference with goods.

(100 marks)

There are three (3) categories of interference with goods which is trespass to goods, conversion
and detinue.

Trespass to goods may be defines as a wrongful and direct interference with goods that are in
the possession of another. The interests that are protected by this tort are the plaintiffs interest
to continue to have possession of his property, to the physical condition of his property as well
as to maintain and protect his right to the non-interference of his property in all aspects. In
other words, it also can be defined as a wrongful physical interference with goods that are in
the possession of another, and is covered not only by the common law, but also by the Torts.

The meaning of trespass can be as little as touching or moving the goods, given the right
circumstances. It is unknown whether intention is required for a claim under trespass to goods,
as the matter has never gone to court; the courts have confirmed that for damages to be awarded
for harm suffered, the harm must have been reasonably foreseeable.

The elements to prove that the trespass to goods have been made is by mental state of defendant
and interference. Mental state of defendant means that the defendant must be proven to have
had the intention to deal with the goods.

In National Coal Board V JE Evans & Co (Cardiff) Ltd, an electrical cable was placed
under the land of the county council by the National Coal Board (NCB) or its predecessors,
without the councils knowledge, as far as could be established. The council contracted JE
Evans & Co (Evans) to excavate a trench on the land. Evans had no knowledge or indication
there was a cable. When excavating the land, the cable was struck and damaged. NCB brought
a cause of action for trespass. Court held that No liability in trespass could be found since the
act was involuntary and accidental. The act of Evans was neither negligent nor wilful and was
utterly without fault. The liability for negligence and injury lay with the NCB or their
predecessors for failing to notify the council when they placed the cable under their land
without knowledge or consent from the council.

In case of Wilson V Lombank, the defendant labouring under a mistake, took the plaintiffs
car from a workshop, believing that was his car. The court held that since the defendant had
the intention to take the car, trespass to goods was established. The element of interference
must be through the direct act of defendant which causes intermediate contact with the
plaintiffs property of goods. In other words, the interference must be physical in nature.

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Interference must be through the direct act of the defendant which causes immediate contact
with the plaintiffs property or goods. This interference must be also being voluntary, as a
involuntariness may negative intention,

In case of Kirk V Gregory, the defendant had moved rings belonging to a deceased to another
room without prior consent. The court held that the trespass was established as the act was
direct and voluntary. Furthermore, the defendant in this case could not offer a reasonable
explanation for her action. The person who may claim lies in the hands of the person who has
possession. It means that the person who has physical control over the goods who is deemed to
have possession in fact.

Refer to the case of Penfolds Wines V Elliot, the majority of the High Court held that there
was no trespass to goods when the defendant filled the plaintiffs bottles with bulk wines
produced by another vigneron, because the bottles had been given to the defendant by the
plaintiffs Bailee. As the act of the defendant was not wrongful as against the Bailee, there was
no trespasser interference with possession which would allow the plaintiff, the bailor, to sue
for trespass to the bottles.

In Haji Awalludin bin Anidin v Majlis Perbandaran Kuntan (1996), the defendant pursuant
powers under a statue required on Chua who was owner on a record of the plaintiffs premises,
to pay up arears of an assessment due within a stipulated time. When no payment was received,
the defendant went to the plaintiffs premises the plaintiff having bought from Chua; and
removed a cassette recorder and a television set belong to plaintiff. The goods were
subsequently returned to the plaintiff when Chua paid the defendant the arrears due. Plaintiff
sued in trespass. The Supreme Court held that since the defendant had complied with the
provisions of the particular statute which empowered them to seize the goods in the
circumstances of the case, the seizure was lawful and accordingly no trespass was committed.

Conversion which is defined as dealing with goods with goods in a manner inconsistent with
the rights of the true owner, whereby the person in possession of the goods intends to deny the
owners right or to assert a right inconsistent with the owners right. It is the wrong done by an
unauthorized act which deprives another of his property permanently or for an indefinite time.
A person, who treats goods as if they were his when they are not, is liable to be sued
in conversion. The elements to be established are possession of goods which we dont own and
intent to deny the owners right or to assert an inconsistent right. The examples of conversion
are purchasing goods from a thief, selling someone elses goods, misdelivery by a carrier, or
destroying anothers goods. The conversion can be divided into three elements.

The first element is mental state of the defendant. The defendants act must be voluntarily and
therefore done deliberately and intentionally. Mere authorised retention of goods need not
necessarily amount to a conversion. Detention must be averse to the owner, an encroachment
on his right so as to exclude him from the use and possession of the goods.

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Refer to the case of Ashby V Tolhurst, the plaintiff left his car at the defendants car-park.
When he came to collect his car, the attendant told the plaintiff that someone who had claimed
to be the plaintiffs friend had driven the car out of the area. The Court held that the defendant
not liable in conversion as there was no intentional act on their part. The second elements are
interference or inconsistent dealing. There are two ways to determine this element which by
taking possession and abusing possession. Taking possession means a person takes possession
of anothers property without lawful justification. Wrongful conversion applies only to
personal property. Personal property consists of every kind of property that is not real. Thus,
an action for conversion generally lies only with respect to personal property and real estate is
not subject to conversion. Further, personal property is the subject of conversion only if it is of
a tangible nature or if it is tangible evidence of a title to intangible or real property. Money can
be the subject of conversion if the money in question can be identified.

In the case of Foludes V Willoughby, this case considered the issue of conversion and whether
or not a ferry driver who removed a mans horses from the ferry and sent them to a hotel for
overnight lodging amounted to an act of conversion. The court held that only trespass to goods
existed. An act that involved moving an object from one place to another was not sufficient to
amount to conversion. The defendants initial act of requesting the plaintiff to get off the ferry
also did not amount to his asserting any right that was in any way inconsistent with the
plaintiffs rights. Abusing possession means dealing with goods may be inconsistent with the
owners right is where the defendant initially has lawful possession of the goods but he
subsequently does an act that constitutes conversion. Abuse of possession can take many forms.

Refer to the case of Moorgate Mercantile Co. V Finch, a hire-purchase agreement provided
that the hirer may not use the car purposes which were contrary to the law. Therefore, the
defendant was held liable in conversion for using the car for unauthorized purposes. The third
elements are the interference or inconsistent dealing must amount to a denial or a deprivation
of the owner rights to have possession. The rightful owner has the right to have possession was
denied when the goods were given to another party.

Refer to the case of Foong Chee Chong V Inspector Mohd Nasir bin Shamsuddin & Anor,
the defendant who had custody of stolen gold articles and jewellery belonging to the plaintiff
was held to have committed conversion, when the police department was unable to return the
gold to the plaintiff after he demanded for its return from them.

Detinue is the detention of goods after a proper demand for their return has been made by the
person who has immediate right to their possession. In other words, it is an action to recover
for the wrongful taking of personal property. It is initiated by an individual who claims to have
a greater right to their immediate possession than the current possessor. For an action in detinue
to succeed, a claimant must first prove that he had better right to possession of the chattel than
the defendant and second that the defendant refused to return the chattel once demanded by the
claimant.

Detinue offers an advantage over, conversion and trespass. As one of the remedies available in
detinue is the order for the defendant to return the goods. No such remedy is available in the
others. two elements that must been proved in detinue which are demand and refusal; and
immediate right to possess. For demand and refusal, the plaintiffs must prove that the
defendant kept the property after the plaintiff; had requested for its return. There must be a
demand for the goods, and a subsequent refusal on the defendants part. It should be noted that
the law does not impose a duty on the defendant to return the goods, but it is only when plaintiff
asks for it that the defendant should surrender the goods to the plaintiff.

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In the case of Nambiar V Chin Kim Fong, the issue is the car which has been repaired cannot
be return to the owner as he did not sign document which he is not supposed to commit. The
court held that since the plaintiff was asked to sign what amounted to a release to his insurance
company and the defendant against any bad work, and added to that the repairs did not entirely
satisfy the plaintiff, the defendants request was unreasonable and constituted a detinue. The
second elements are immediate right to possess. The plaintiff must have an immediate right to
possess the goods. In order to succeed in detinue, it is essential for the plaintiff to show that he
has the right to immediate possession at the time of commencing the action, arising out of an
absolute or special property.

In Sajan Singh V Sardara Ali, the plaintiff provided capital for the purchase of a lorry for
commercial purposes. The permit was obtained in the defendants name and in fact all
documents were in the defendants name. the court held that the plaintiff is entitled to claim
for the lorry even though the transaction between defendant and plaintiff is illegal, nevertheless
it was fully executed and carried out and the lorry is at that time have fully in possession of the
plaintiff and the plaintiff owned the right of the lorry.

In case of Lim Kim Hock V Lee Ah Koong, where the defendant sold a taxi with its permit,
which in his name, to Mr. Tay, and Mr. Tay then defaulted in his payment and sold the taxi to
the plaintiff. The plaintiff wan unaware that Mr. Tay had defaulted in his payments. The
defendant later took possession of the taxi rom the plaintiff. The court held that the plaintiff
was bona fide purchaser and therefore had a good claim against the defendant. As the plaintiff
wan the owner of the taxi, he had the right to immediate possession, and thus to the return of
the taxi.