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Detinue

Grant v YYH Holdings Pty Ltd [2012] NSWCA 360. McColl JA.

43. The essence of detinue lies in a wrongful refusal to deliver up goods to a person having the immediate right to the possession of those goods: CHEP Australia Limited v Bunnings Group Limited [2010] NSWSC 301 (at [183]) per McDougall J.

Similarly, the cause of action in detinue accrues once a lawful demand for the return of possession of the chattel is made and the demand is refused: Philpott v Kelley [1835] EngR 647(1835) 3 Ad & El 106(1835) 111 ER 353Miller v Dell [1891] 1 QB 468Lloyd v Osborne (1899) 20 LR (NSW) 190. 

Accordingly at the end of six years after the accrual of the cause of action, the title of the original owner to the converted or wrongfully detained chattel, and hence any cause of action for conversion and/or detinue, is extinguished: s 65(1) Limitation Act.

There may be different limitation periods if the facts establish that the causes of action in conversion and detinue accrued at different times: John F Goulding Pty Ltd v Victorian Railways Commissioners [1932] HCA 37; (1932) 48 CLR 157 (at 169 -170).

 

Wilson v State of New South Wales [2010] NSWCA 333. Hodgson JA.

76 It was submitted for Mr Wilson that once the fines had been paid by credit card, there was no basis on which the goods could be withheld; and accordingly, retention of the goods thereafter was detinue.

77 In my opinion, while the approval of a credit card transaction by a credit card company may be accepted as a highly reliable indication that appropriate payment will be made, it has not been established to be the same as a payment in cash or as an unconditional credit to the payee’s own bank account. In my opinion, the primary judge is not shown to have been wrong to hold that the State had a policy not to return seized goods in such circumstances until after ten working days, and that for the State to give effect to that policy did not constitute detinue.

78 There was no evidence of any demand after the expiry of this period and before the actual return of the goods.

79 I note that in any event, it is difficult to see that damages for detinue could be significantly more than nominal.

 

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