#5293 - Actions To Enforce Title - Personal Property Law

Actions to Enforce Title

There is not a single action of enforcement of title, instead actions in restitution and civil wrongs are used to achieve enforcement of title.

In equity, a constructive trust can be used to enforce equitable title to money.

At law, title is primarily protected through the torts of trespass and conversion. These are now contained in the Torts (Interference with Goods) Act 1977 s.1. Once a claim for damages is satisfied then the title is extinguished (TIGA 1977 s.5(1))

Legal title may also be enforced by either an unjust enrichment claim/money had and received, or by asserting property rights over a specific fund.

One is able to enforce title by an action for money had and received , but if consideration has been provided then there can be a bona fide change of position and so the claim will fail (Lipkin Gorman)

If legal title can be traced into a specific fund then that fund and profits from it may be declared to be the property of the victim (FC Jones v. Jones)

Trespass to goods

Penfolds Wine (Australian Case)

A mere taking of a chattel may be a trespass without requiring the infliction of any damage. The handling without authority is a trespass.

The unauthorised use of goods is a trespass: riding a horse, driving a car or using a bottle are all acts of trespass even if the horse is returned unharmed, the car is unwrecked and the bottle is unbroken. Trespass requires and is sufficiently satisfied by an interference with actual possession.

Trespass gives rise to an action without any special damage needing to be proven.

However if there is no damage then any award will be merely nominal (Kirk v. Gregory)

To remedy a trespass the court may order damages, either nominal or compensatory, or it can order specific return.

The court can order specific recovery and consequential damages (TIGA 1977 s.3(2)(a))

The defendant may add a party who has a better title than the claimant and who may otherwise have a claim so as to avoid double liability (TIGA 1977 s.8(2)(c))

Conversion

There are three basic features to bringing an action in conversion. The defendant’s conduct was inconsistent with the rights of the owner; the conduct was deliberate, not accidental; the effect of the conduct was to exclude the owner from use or possession of the goods (Kuwait Airways)

Lesser acts of interference will give rise to a claim in trespass (Kuwait Airways)

If the act was done with the intention of converting goods to one’s own use, even for a moment, then the offence of conversion will be committed (Fouldes v. Willoughby)

Any intent to deprive the true owner of his immediate right to possession is the essential ground of the tort (Penfold Wines (Australian case))

Mere receipt of goods without the intention does not amount to conversion (Marcq v. Christies)

It is irrelevant whether the defendant knew that the property was not property to which he was lawfully entitled. The offence is still committed. (Fowler v. Hollins)

But, liability will be reduced for a person who is not aware that he is not lawfully entitled to property. And an agent or employee who handles goods in a purely ministerial capacity will be excluded from liability completely. (Fowler v. Hollins)

Detinue was abolished by TIGA 1977 s.2, but the remedy is retained in conversion according to TIGA 1977 s.2. This has been confirmed in Coussens.

Conversion of incorporeal property

The orthodox position is that it is not possible to convert incorporeal property as it is an interference with the rights to possession (House of Lords in OBG v. Allan)

In Voyer the British Columbia court argued that it was possible to have conversion of incorporeal property. Fox says that it is unnecessary to force conversion to be available for incorporeal property because the individual can simply order the bank to repay any money withdrawn without a mandate.

Calculation of damages in conversion

It is always possible to get at least nominal damages even if no loss is sustained (Williams v. Peel)

The fundamental object of an award of damages for conversion is to award just compensation for the loss suffered. The measure of damages will normally be set according to the market value of goods when they are expropriated. This represents the basic loss, but depending on the circumstances this can be either increased or decreased as appropriate (Kuwait Airways)

In a reversible conversion, where property was converted but then returned, the loss is to be valued at the date of judgement. Even if the market value has decreased, there is no loss as the original goods have been returned (Goldschmidt)

Fox says that in Goldschmidt it was relevant that the victim would never have sold the asset (copper) and so the high point in the market would not have been realised.

In an irreversible conversion, where goods are never returned, then the value of the goods is judged at the date of conversion, not accounting for market fluctuations after. When shares are sold then the return of new shares is still an irreversible conversion. The defendant will be liable to restore the victim to his position at the date of conversion and return all profits made. (Sollaway v. McLoughlin)

In Sollaway v. McLoughlin the shares were always liable to be sold and so it is to be assumed that the shares were sold at a market high point.

It is possible to get any profits made by the defendant from the conversion (Kuwait Airways)

The difference between the presumption in Sollaway v. McLoughlin and the decision in Goldschmidt is sensible. Solloway v. McLoughlin presumption is based on the fact that the converter has created uncertainty by their wrongful act. It is therefore to be presumed against their interest and in favour of the victim. On the other hand in Goldschmidt there...