Detinue is the area of law that relates to a situation in which a person wrongfully detains a person’s property and unreasonably refuses to return that property to its rightful owner.
If the property should rightfully be in its owner’s possession, this area of law therefore allows for recourse for that property to be reclaimed. Fox Piper can assist in claims for detinue to help you reclaim your property in the event that another person is refusing to return it to you.
Elements of Detinue
The following are the elements that need to be fulfilled for a successful detinue action:
- A demand is made;
- The demand is refused;
- The refusal is unreasonable; and
- There is consequential damage.
To explain these in greater detail:
- Demand made
The plaintiff must make a demand for the property to be returned and be entitled to the property at the time of the demand. The demand is necessary.
- Demand refused
The defendant must refuse that demand (whether expressly refusing or failing to respond at all). On some occasions, a defendant who does not have possession of the property and has lost that possession may still give rise to detinue by denying the plaintiff their right to possession.
- Refusal unreasonable
Where the property is in the defendant’s possession, the refusal to return the property must be unreasonable.
- Consequential damage
As a result of the defendant’s conduct, the plaintiff has suffered a loss. This will usually be calculated as the value of the property in question.
Once the above elements have been established, an action for detinue can be made out.
It is important to also note that trespass to goods, conversion, and legal actions around fraud or misappropriation of funds or property may apply, and if a person does not strictly meet all of the elements fo detinue, other actions may be available.
How can detinue arise?
Detinue is established by a demand for the property by the plaintiff and a refusal of that demand by the defendant. A conditional demand that later becomes unconditional will also be enough to prove a cause of action in detinue.
Detinue can arise in two ways:
- Where the defendant has actual possession of the property (any goods – for example, a lawn mower or excavator) and refuses to return it to the plaintiff on their demand; or
- Where the defendant was in possession of the plaintiff’s property under bailment (i.e. the goods had been temporarily provided to the defendant for a particular purpose) and has wrongfully parted with that property.
It is important to note that even if there is a case of a wrongful parting with the property, there must be a demand and refusal for detinue to arise.
The plaintiff must have a right to immediate possession at the time of the refusal that derives from some proprietary or possessory interest in the property. The interest in the property must also be a lawful interest. If the plaintiff does not have an immediate right to possession of the goods or property, then the plaintiff cannot sue for detinue.
Defences to Detinue
The following are defences that can be used against claims for detinue:
- Consent
It is a defence to show that the interference occurred with the plaintiff’s consent. Consent can either be express or implied.
- Jus tertii
It is a defence to show that a third party has a better right to possession than the plaintiff.
- No right to possession
The legal ownership of a property can be complicated. Registration of a vehicle is not proof of ownership, for example. There may be contractual obligations (in particular for commercial equipment) or other facts that demonstrate that the person demanding the return was not the rightful owner.
- The demand was invalid
If a demand has been made, it may be vague, confusing or otherwise invalid. If the demand isn’t valid, then a refusal may not have been unreasonable.
- There was no refusal
If the refusal to return something is not specific, and a sufficient amount of time has not passed to imply that there is a refusal, then the element of refusing the demand to return the property may not be met.
- It wasn’t reasonable to return the property
There may be a reasonable excuse why the property had not been returned in time.
Action
Be making a claim for detinue, the following remedies can be sought:
- Delivery up of goods
An order for delivery up of goods is available in an action for detinue. It is a court order demanding the return of the goods or property to the plaintiff.
- Compensatory damages
Compensatory damages may be awarded if there has been a loss.
- Restitution
The remedy of specific restitution (i.e. remedy calculated based on the gains of the defendant) may apply where damages are inadequate.
- Abatement (also known as self-help)
A person may be entitled to enter the land of another or take other self-help measures, upon giving of due notice, to lawfully retake goods which have been wrongfully taken out of the person’s possession. However, you should seek legal advice before you enter another person’s property, and also consider your own personal safety.
Seeking Advice
At Fox Piper, our team is well-versed in handling claims for detinue under Australian law. If you find yourself in a situation where your property has been wrongfully detained and the rightful owner refuses to return it, our experienced lawyers can provide expert guidance and representation.
We understand the complexities involved in proving each element of detinue, from making a valid demand to demonstrating consequential damages. Whether your case involves goods in possession or a breach of bailment terms, we are committed to helping you secure the return of your property. If you find yourself in a position requiring an action under detinue, make a booking with Fox Piper to discuss your situation.
Conclusion
Knowing your rights and seeking professional legal advice from Fox Piper can make all the difference in resolving disputes over wrongfully detained property. Our dedicated team is here to navigate the intricacies for a detinue action and ensure that you receive the appropriate remedies available under Australian legal principles.
