What to do when someone won’t give back your goods
You may have a claim in the tort of detinue if someone holds your goods and that person delays or refuses to give it back to you after you demand the return of your goods.
What is the tort of detinue?
The tort of detinue is the wrongful detention of property belonging to another person. Detinue is concerned with the possession at the expense of ownership.[1] The tort applies only to ownership of personal property, not land or buildings.
Elements of detinue
To claim relief, you must prove:[2]
- you have a right to possess the goods immediately. This may be because you own the goods but the tort is not limited to where owners make a demand for their goods;
- you have demanded the other person return the goods; and
- the other person has wrongfully detained the goods despite the demand.
Defences to detinue
To succeed in defending a claim of detinue, the defendant must prove:
- a demand for the return of the property has not been issued; or
- there was some lawful reason that goods were not returned.
Examples of where a defendant can succeed in defending a claim in detinue for refusal to return for a lawful reason include, where the defendant wished to verify the identity of the recipient of the goods before parting with possession,[3] and the goods were destroyed in circumstances where the other person exercised reasonable care and skill to prevent such loss.[4]
It is not a defence to detinue that the defendant did not intend to keep the goods or the defendant made a mistake about the person or place to deliver the goods to.[5]
Why make a claim for detinue?
The benefit of detinue is that the court can order the return of the goods. Where goods are unique, cannot be replaced or cannot easily be valued, detinue is a useful way of getting back your exact goods. Examples of goods which are more likely to be subject to a claim for detinue include unique pieces like jewellery or artworks, yachts, livestock and goods of sentimental value. It can also be used to recover plant and equipment that has been wrongfully withheld.
In comparison, a successful claim for a breach of contract results only in an order for damages. In other words, the other person will pay you the proven financial value of the goods but gets to keep the goods themselves. If the goods are easy to replace, it may be better to make a claim for breach of contract rather than detinue.
Key takeaway
Detinue is a useful claim to recover goods which are irreplaceable. While the elements of the claim are well established, the legal complexity is often in the facts of the case. It is essential for establishing a claim in detinue that there is clear evidence of a demand and no other lawful reason why the other person has withheld your goods.
If you would like to discuss this article with us, please contact David Greenberg, partner, or Adele Phillips, Paralegal on (02) 9261 5900.
[1] City Motors (1933) Pty Ltd v Southern Aerial Service Pty Ltd (1961) 106 CLR 477.
[2] John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157.
[3] Reeve v Palmer (1858) 141 ER 33.
[4] John F Goulding Pty Ltd v Victorian Railways Commrs (1932) 48 CLR 157 pp.166-7.
[5] Ibid pp.159, 166-7.