2.

0 ELEMENT OF CONVERSION

2.1 MENTAL STATE OF DEFENDANT

2.1.1 The act must be done voluntarily.

In the case of Ashby v. Tolhurst1, the plaintiff drove his motorcar to the defendant’s
land of which he later paid to the attendant and received a ticket. At all material
times, the attendant is under the employment of the defendant. The plaintiff later left
the car locked upon receiving the ticket. The plaintiff later returned to find that his
car was no longer there and the attendant saying that he had given the car to the
plaintiffs’ friend who was in fact a stranger. The car park ticket received by the
plaintiff stated that the defendant are not responsible for the safety of the cars park
there and that all the cars left there are entirely at the owners risk. The court held
that the defendants are not liable for conversion as the relationship between the
plaintiff and the defendant are of licensor and licensee not bailor and bailee. The
court also held that assuming that there was a contract of bailment, the clause in the
ticket was wide enough to cover the attendant from being liable which the act was
not done voluntarily.

2.1.2 If the purchaser of the goods are Bona Fide when buying the goods, the Plaintiff
cannot take an action against the purchaser.
In the case of Hollins v. Fowler2, the plaintiff has thirteen bales of cotton but was
fraudulently bought by B. B, upon tricking the plaintiff, then obtained some cotton
in his possession. The defendant, a cotton broker unknown of the fraud, bought some
cotton from B and sold it to another party. The court held that the defendant is liable
for conversion as he was directly involved in the business negotiation and has
intention to deal with the bundle of cotton. However, the plaintiff cannot take an
action against the purchaser of the cotton from the defendant as he was a Bona Fide
Purchaser.

1
[1937] 2 All ER 837
2
[1875] LR 7 HL 757
2.2 INTERFERENCE OR INCONSISTENT DEALINGS
2.2.1 Taking Possession
The defendant must exercise the dominion over the goods. This is been illustrated in
the case of Fouldes v. Willoughby3, where, the plaintiff boarded the defendant’s
ferry with his two horses and are prepared to pay extra to the defendant. The
defendant refused from allowing the plaintiff to board his two horses but the plaintiff
ignored the refusal. Then, the defendant took the two horses to a stable of a hotel
and left them there. Upon plaintiff arrival, the defendant requested for a pay because
leaving the two horses at the stable of the hotel. The plaintiff then filed an action
against the defendant for conversion of goods. The court held that the defendant is
not liable for conversion but only trespass to goods existed. The defendant did not
exercise control over the plaintiff goods.

2.2.2 True owner has not been negligent

In the case of Rimba Muda Timber Trading v. Lim Kuoh Wee4, a timber
concession was given by the State Government of Pahang to Mohamad Aminallah
to fell and extract timber from a concession area. On 6 May 1994, he then appointed
Chan Kwek Meng as the principal contractor to fell and extract timber from the
concession area. Under the agreement, Chan was entitled to sell the felled timber.
Chan in turn appointed Lim Kuoh Wee to fell and extract the timber under an
agreement between him and the Lim. About a year later, the Lim discovered that
Chan had extracted the timber from the concession area and sold them to the
appellant. Lim Kuoh Wee filed an action against both Chan and the appellant for
trespass and conversion. The Federal Court held that the Lim Kuoh Wee
(Respondent) is entitled for the property rights of the timber when he was issued a
license to extract timber by Chan Kwek Meng.

2.2.3 Involuntary Receptions of Goods

a) Involuntary reception but do reasonable safekeeping of the goods

3
[1841] 8 M & W 538
4
[2006] 4 AMR 665; [2006] 4 MLJ 505
 In the case of Lethbridge v. Phillips5, the plaintiff which was a famous painter
lends a picture to B which was a third party who wishes to shew it to the
defendant. B without informing the defendant sends the picture to his house. The
defendant without any knowledge of the status of the painting placed it near a
stove which result in damages. The court held that where the object is
accidentally damage but was involuntarily received, the defendant is not liable
for conversion.

b) Involuntary reception but are negligent in handling of goods

In the case of Howard v. Harris6, the plaintiff wrote a dramatic version entitled
Claverhouse of Sir Walter Scotts Old Mortality. He then wrote to the defendant
and asked him for help to produce the play. The defendant then replied that if the
plaintiff would send to him the scene, plot, the sketch and the play, he would
look through them. The Plaintiff then sent to the defendant the scene, plot and
also the play itself and also sent numerous application after that using the first
application as a reference. On January 1983, the Plaintiff demanded back the
play. However, the play was not returned as it was not found. The court held that
the Plaintiff voluntarily chose to send in addition of the play, something which
the defendant never asked for and because of that the defendant was not
subjected to any duty which what was sent by the plaintiff.

c) Involuntary reception but takes more than the necessary steps to return back the
goods.
In the case of Hiort v. Bott7, the plaintiffs sent to the defendant an invoice for
barley, which stated that the barley was bought by the defendant through G, as a
broker. However, the defendant did not order the any barley from the plaintiff
which then G called the defendant informing him of the mistake. G also showed
him the documents of the mistake and asked the defendant to indorse the order
for him to save the expense from obtaining a fresh delivery. The defendant
agreed and indorsed the order for G. G then obtained possession of the barley
which immediately dispose of it and escaped arrest. The facts found that the even
though the defendant had no intention of appropriating the barley for his own use

5
[1819] 2 Stark 594
6
[1884] Cab & Ell 253
7
[1874] LR 9 Ex 86
 but indorsed the barley in order to correct the mistake for G. The court held that
the defendant which indorsed the deliver without authority are liable for
conversion of goods.

2.2.4 Abusing Posession

a) Taking Posession
In the case of Moorgate Merchantile Co. Ltd v.Finch and Read8, the hirer
of a car (First Defendant) which was under a hire purchase agreement lent the
car to R (Second Defendant) which unknown to the first defendant used the car
to transport uncustomed watches. The second defendant was caught and the car
was forfeited as well as sold by the Customs and Excise authorities. The hire
purchase company brought proceedings against the first defendant contending
which in the hire purchase agreement stating that any breach of the term or
condition entitled the hire purchase company to seize the car without notice.
The first defendant disappeared and did not take part in the proceeding. Upon
appeal at the Queen’s Bench, it was held that the second defendant act that
intended for the forfeiture of the car amounted for conversion. It was also held
that upon the first defendant breach of the hire purchase agreement, the hire
purchase company has immediate right to possession and can sue the second
defendant for conversion.

This is also being illustrated by the Indian case, The Jag Shakti9, the appellant
was a salt importer and holder of two value of bills of lading. The respondent is
a ship owner of ‘Jag Dhir’ which was carrying salt from Tuticorin in India to
Chittagong in Bangladesh. However, the owner of the ship sold the salt to
Mumtazzudin instead of the appellant upon arriving at Chittagong. This case
was brought to the High Court and eventually arriving in the Privy Council. In
the Privy Council, the House of Lords held that the appellant had the right of
the delivery of salt to them a Chittagong and that the right towards the salt was
wrongfully converted to Mumtazzudin.

8
[1962] 1 QB 701
9
[1986] 1 MLJ 197
 b) Denial or Deprivation of the owners right to possession
In the case of Foong Chee Chong v. Inspector Mohd Nasir bin Shamsuddin10,
The plaintiff was the sole proprietor of the firm, Tien Chan Goldsmith & Jewellers.
On August 1985, the plaintiff’s firm was burglarized but the gold article as well
as the jewelleries was recovered and kept by the first defendant. On 17 November
1989, the court ordered the defendant to return the gold and jewelleries to the
plaintiff. However, on 28 March 1990, the police informed the plaintiff that the
gold articles were missing while being kept by the first defendant. The court held
that the first defendant and the police department were gratuitous bailees to the
gold. It was also that conversion occurs when the first defendant failed to return
the gold when the plaintiff demanded for it.

10
[1998] 4 AMR 3420