DETINUE

IntroductionDefinition of Detinue

Differences Between Conversion and Detinue

Elements of DetinueConclusion

DETINUE

Introduction:• This tort involves the wrongful detention of goods by the

defendant; and this normally covers two circumstances: first, where he is in possession of such goods and loses them, and secondly, the refusal without justification to deliver the goods to the person so entitled. (See the case of PKNS v Teo Kai Huat Building Contractor [1982] MLJ 165).

• Detinue often arises in situations where the defendant initially has possession over the goods but subsequently refuses to return them to the rightful owner without any reasonable excuse or justifiable reasons. Reasonableness is a question of fact and may depend on the time of the demand, the expense and inconvenience of immediate compliance and whether the defendant has sufficiently explained to the plaintiff the reasons for his temporary refusal.

DETINUE

Definition of Detinue: • Detinue may be defined as the illegal possession of goods. The possession

becomes illegal due to the withdrawal of consent by the owner of the goods, who initially may have consented to the defendant having possession of the same goods.

• In legal terms, detinue is the wrongful detention of goods which the plaintiff has an immediate right to possess. The plaintiff will have a good cause of action against the defendant if the refusal is due to the goods being lost.

• The cause of action arises after a specific demand for the return of the chattel had been first made but the defendant opted not to comply. See the case of Nambiar v Chin Kim Fong [1963] MLJ 60).

• The demand ought to particularise the person and the place for the chattel to be returned (see the case of Capital Finance Co Ltd v Bray [1964] 1 WLR 323). The refusal to comply with the demand may be express or by necessary implication. See the case of Houghland v RR (Low) Luxury Coaches Ltd [1962] 1 QB 694. See also the case of Metals and Ropes Co Ltd v Tattersall [1966] 3 All ER 401.

DETINUE

Differences Between Conversion and Detinue: 1) In conversion, there must be an intentional dealing whereas in detinue, negligence

is sufficient. For example, in conversion there must be an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right. (See the case of Tay Kian Hock v Kewangan Bersatu Bhd [2002] 4 MLJ 411). Thus, the tort will not be established if there is no positive wrongful act on the part of the defendant.

2) As to conversion, only one wrongful act arises. On the other hand, detinue is a continuous tort. The tort arises at the point where the defendant refuses to return the goods until such time when the goods are returned or when judgment is given.

3) In conversion, the person who sues must have either the right to immediate possession, or actual possession. On the other hand, in detinue, the person suing must have the right to immediate possession. For example, detinue often arises in situations where the defendant initially has possession over the goods but subsequently refuses to return them to the rightful owner without any reasonable excuse or justifiable reasons. Reasonableness is a question of fact and may depend on the time of the demand, the expense and inconvenience of immediate compliance and whether the defendant has sufficiently explained to the plaintiff the reasons for his temporary refusal.

DETINUE

Differences Between Conversion and Detinue: (Continuation)4) In conversion, the act involves the denial of the defendant’s right over

the goods whereas in detinue, there must be a wrongful detention i.e. there must have been a demand and a refusal. See the case of Nambiar v Chin Kim Fong- where the plaintiff’s insurance company instructed for the plaintiff’s car to be sent to the defendant’s workshop for repairs. On July 27, 1961 the defendant informed the plaintiff that the repairs were completed and the car was ready for delivery. On August 12 the plaintiff went to collect the car but the defendant refused to release the car unless the plaintiff signed a certain document which the plaintiff was under no duty to sign. At a later date, the plaintiff again demanded for the car and again the defendant refused to release it for the same reason. 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 defendant’s request was unreasonable and constituted a detinue.

DETINUE

Differences Between Conversion and Detinue: (Continuation)5) In conversion, the amount of damages is the value of the goods at the

time the conversion occurs together with any consequential damage flowing from the conversion which is not too remote. The payment of the value. On the other hand, in detinue, the amount of damages is the value of the goods at the date of judgment and any damages in respect of the wrongful detention between the date of the refusal and the date of the actual return or the payment of the value of the goods. See the case of PKNS v Teo Kai Huat Building Contractor [1982] MLJ 165, FC- where the court held that the claim was generally detinue. The respondent was entitled to obtain damages, the value of the machinery and equipment at the date of judgment. In the circumstances of the case the amount of damages was first, the value of the machinery at the date of judgment, and added to that, a further sum representing the fall in value for the period between the wrongful detention and the date of judgment. Damages for loss of hire at the market rate were also recoverable.

DETINUE

Differences Between Conversion and Detinue: (Continuation)• The differences between detinue and conversion were laid down in PKNS v Teo

Kai Huat Building Contractor [1982] MLJ 165, FC- where a company, Pribumi Sdn Bhd was the main contractor for the appellant, PKNS. The respondent was a subcontractor for Pribumi. The appellant subsequently annulled its contract with Pribumi. Therefore the contract between Pribumi and the respondent was annulled at the same time. The respondent claimed that the appellant refused to allow them to bring out their machinery and equipment from the building site for a period of one and a half years by which time the machinery could no longer be used. The appellant contended that this was detinue whereas the respondent claimed it was conversion. The court held that the claim was generally detinue. The respondent was entitled to obtain damages, the value of the machinery and equipment at the date of judgment. In the circumstances of the case the amount of damages was first, the value of the machinery at the date of judgment, and added to that, a further sum representing the fall in value for the period between the wrongful detention and the date of judgment. Damages for loss of hire at the market rate was also recoverable.

DETINUE

Elements of Detinue: (a) Demand & refusal• The plaintiff 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 defendant’s part.

• Detinue will not arise if there is no demand and refusal unless the parties have otherwise agreed; for instance if there is an express stipulation that the goods must be returned at a specific time, non-return will automatically give rise to detinue without any demand being made. (See the case of Supreme Leasing Sdn Bhd v Lee Gee & Ors [1989] 1 MLJ 129

• It should be noted that the law does not impose a duty on the defendant to return the goods, but it is only when the plaintiff asks for it that the defendant should surrender the goods to the plaintiff. The defendant may stipulate reasonable conditions before the goods are returned by him. If these conditions are not met and he refuses to return the goods, no action for detinue will lie. See the case of Nambiar v Chin Kim Fong [1963] 29 MLJ 60.

DETINUE

Elements of Detinue: (Continuation)(a)Demand & refusal• See the case of Nambiar v Chin Kim Fong- where the plaintiff’s

insurance company instructed for the plaintiff’s car to be sent to the defendant’s workshop for repairs. On July 27, 1961 the defendant informed the plaintiff that the repairs were completed and the car was ready for delivery. On August 12 the plaintiff went to collect the car but the defendant refused to release the car unless the plaintiff signed a certain document which the plaintiff was under no duty to sign. At a later date, the plaintiff again demanded for the car and again the defendant refused to release it for the same reason. 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 defendant’s request was unreasonable and constituted a detinue.

DETINUE

Elements of Detinue: (Continuation)(b) 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. See the case of Sajan Singh v Sardara Ali [1960] 26 MLJ 52, PC- where the plaintiff provided capital for the purchase of a lorry for the purposes of business. The permit was obtained in the defendant’s name and in fact all documents were in the defendant’s name. The plaintiff’s solicitor subsequently wrote a letter to the Road Transport Department, explaining that since it was the plaintiff who drove the lorry and he was the one who provided the capital, a permit should be issued under the plaintiff’s name. The defendant found out about the plaintiff’s plans; he went to the plaintiff’s house and drove the lorry back to his house. The plaintiff sued the defendant for detinue and asked for a declaration that the lorry belonged to him. The Privy Council held that although the transaction between the plaintiff and the defendant was illegal, nevertheless it was fully executed and carried out, and it was effective to pass the property in the lorry to the plaintiff. He held the right to immediate possession and his claim in detinue succeeded. It was further held that the plaintiff also had a clear case in trespass, although it was not pleaded. The plaintiff could have relied in possession in fact, for the claim in trespass.

DETINUE

Elements of Detinue: (Continuation)(b)Immediate right to possess• See also the case of Lim Kim Hock v Lee Ah Koong [1981]

2 MLJ 206- where the defendant sold a taxi with its permit, which was in his name, to one Mr Tay. Mr Tay then defaulted in his payments and sold the taxi to the plaintiff. The plaintiff was unaware that Mr Tay had defaulted in his payments. The defendant later took possession of the taxi from the plaintiff. The court held that the plaintiff was a bona fide purchaser and therefore had a good claim against the defendant. As the plaintiff was the owner of the taxi, he had the right to immediate possession, and thus to the return of the taxi.

DETINUE

Elements of Detinue: (Continuation)(b) Immediate right to possess• See also the case of Abdul Muthalib bin Hassan v Maimoon bte Haji Abdul

Wahid [1992] 1 CLJ 88- where the plaintiff operated a coffee-shop which was rented from the defendant. The defendant locked the premises and the plaintiff claimed in trespass and for the return of his possessions which remained in the shop and which were being withheld by the defendant. The court held that the plaintiff had possession over the premises, and therefore the defendant had committed trespass. Non-payment of rent is no justification for trespass, although it may be taken into account in reducing the amount of damages. On the facts of the case, the plaintiff was awarded nominal damages. The court further held that the remedy for conversion and detinue in Malaysia is contained in sec 9 of the Specific Relief Act 1950, but since the plaintiff did not specifically request for the return of his goods after the premises had been locked up, there was no cause of action for either conversion or detinue. (See sec 9 of the Specific Relief Act 1950 which provides that a person entitled to the possession of specific movable property may recover the same in the manner prescribed by the law relating to civil procedure).

DETINUE

Elements of Detinue: (Continuation)(b)Immediate right to possess• It is important to note that having the immediate right to possession

entitles one to claim for any wrongful detention of goods. It is not necessary the case that the person having the immediate right to possess is also the owner of the goods. In some instances however, the right to claim for detinue is limited to the owner of the goods. This must not be viewed as an exception, but is so due to the nature of the goods itself. See the case of Goh Hock Guan & Associates v Kanzen Bhd- where the court held that the plaintiff firm could not claim for the wrongful retention of the international passport of one of its representatives by the defendant. No one, according to the court, had a right to claim for wrongful retention of the passport except the owner. This was because the passport belonged to Goh as his property and only he is entitled to sue on his own behalf.

DETINUE

Conclusion:• Since detinue is defined as the wrongful detention of goods

which the plaintiff has an immediate right to possess, it is important therefore to note that the principal remedy to the plaintiff, in addition to damages, would be to claim the value of the chattel or its return. As for damages, this may include the value of the goods and damages for wrongful detention, in addition to special damages.