Tort of Conversion

Last updated on: 22/08/2017

This article is written in reference to the Article written by Dennis, “Three Kidnapped Dogs”.  From the time that article was written, more than one month has passed. My employer still has not have much progress on getting her beloved dogs back. As mentioned by Dennis, the police were reluctant to classify the abduction of the dogs as theft, but instead advised my employer that this case at hand is a civil matter and would not be under the jurisdiction of the police. A civil suit is underway for her to recover her dogs back from the abductors

 

This begs the question as to when the offence could be classified as theft, and what other situations would it be classified as conversion, which is a civil offence. It is important to note that even though the police may classify it as a civil matter, the aggrieved person could still launch a Magistrate Complaint for criminal sanctions against the culprit. The plaintiff could not claim for damages from the Magistrate Complaint, and would have to file a civil claim in a separate proceeding for damages from it.

Tort of Conversion

The tort of conversion could be interpreted as theft, with the difference being the absence of criminal sanctions against the perpetuators and no element of dishonesty required to be made out.

 

 An act of conversion occurs when there is an unauthorised dealing with another’s chattel so as to question or deny his title to it ( Clerk & Lindsell at para 17-06). It can also be defined taking a chattel out of one’s possession with the “intention of exercising a permanent or temporary dominion over it” ( R F V Heuston and R A Buckley Salmond & Heuston on the Law of Torts (Sweet & Maxwell, 21st ed, 1996, pg 99)

 

The mere retention of another’s property on its own is not conversion, unless the defendant has shown an intention to keep the thing in defiance of the true owner , which is seen in the case of Clayton v Le Roy [1911] 2 KB 1031 at 1052. Furthermore, in suing for conversion, the plaintiff would have to prove that the defendant’s detention of the chattel is adverse to its interests. This can be done by showing that the defendant had refused or neglected to comply with the demand made by the Plaintiff  for the delivery of the chattel, though the making of such a demand is not a prerequisite in every case Salmond & Heuston on Torts at p 100). It is also important to note that even though the defendant refused to comply with the demand, it may not necessarily constitute conversion (Salmond & Heuston on Torts at p 100).

 

Tat Seng Machine Movers Pte Ltd v Orix Leasing Ltd [2009] 4 SLR(R) 1101 sets out that the intention to act inconsistently with the owner’s rights needs to be established. One would have to show that the owner made a specific and unconditional demand for the return of the goods and the person in possession of the goods unconditionally refused to do so. The demand must be both specific and unconditional. The refusal to return must be unconditional.  It is irrelevant if the detention was temporal ( Clerk and Lindsell on Torts, 20th edn para 17-25).

 

 

Remedies for Conversion: Compensatory or restitutionary?

Judith Prakash J, in the case of Yenty Lily(trading as Access International Services) v ACES System Development Pte Ltd [2012] SGHC 208 at [43], adopted the “user principle”, in which “user damages” are typically awarded where the defendant wrongfully detains and uses the plaintiff’s property for his own purposes. The law compels such a defendant to pay reasonable hire for the period of unauthorised detention, even if the plaintiff suffered no financial loss. The defendant is therefore not allowed to argue that the plaintiff would not have been able to rent out the property during the material time, as the user principle protects property rights in themselves and therefore triggers compensation where the owner’s mere right to exclude others at his own discretion has been infringed.

She further elaborates by saying that the user principle may not be wholly compensatory but may also contain elements of restitution cannot lead to the conclusion that a plaintiff cannot recover in a situation where the defendant has not made any discernable use of the plaintiff’s detained or misappropriated property unless the plaintiff proves actual damage. She felt that preventing the plaintiff from claiming damages simply due to the fact that the Defendant detained the plaintiff’s profit earning goods and the Defendant not benefiting from any material gains from it is not justified on principle. Hence, through the detention or appropriation of the property owned by the plaintiff, the defendant gains the opportunity to use the property concerned while at the same time prevent the owner from using the said property. The defendant failing to capitalise on the opportunity is irrelevant in preventing the plaintiff from claiming damages against the defendant. Hence, based on her explanation, a landlord who seized his tenant’s printing machine as collateral for non payment of rent would have to pay damages to the tenant, despite the landlord himself deriving no material benefits from the printing machine because he does not use it.

 

In the case of Thomas Teddy and another v Kuiper International Pte Ltd [2013] SGHC 7, it was held that as long as the Defendants took reasonable steps to attempt to return the disputed property to the Plaintiffs, and the alleged unlawful detention of the property by the Defendants was not with a view to derive benefit or to deprive the plaintiffs the benefit of the property, then nominal damages would most likely be awarded to the Plaintiffs. It is important to note that each case has its own merits and the legal outcomes would depend on the circumstances and facts of each case. Therefore the outcome decided by the judge should there be a trial may be different.

This means that when you are the landlord, the act of retaining the property of your tenant with no intention of gaining any material gains or preventing the tenant of gaining benefits of it, you are likely to be liable for nominal damages to the tenant at most.

 

Dog Abduction: What can be recovered?

In light of the damages that could be recovered for the tort of conversion, it could be said that the very act of denying my employer, the rightful owner of the dogs to be with her dogs could be construed as depriving her of her benefits while simultaneously benefitting themselves due to the companionship of the dogs under their care. They could also be planning to ‘resell’ the dogs to third parties for a profit. The damages that could potentially be recovered would be more than nominal should my employer be successful in her civil claim. My employer is not asking for any damages, but she demands for specific performance, which is the safe and timely return of the dogs, Hachie and Cindy. Hopefully there can be a just and equitable outcome and my employer could be reunited with her dogs, as going through the litigation involved in the claim has given her a strain on her already busy schedule.

 

Written by Lim Enyang, Timothy (RLT Trainee) - August 2017