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DETINUE

Introduction
Definition of Detinue
Differences Between Conversion and
Detinue
Elements of Detinue
Conclusion
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.