Triplot & Anor v Whetter

Conversion occurs where a person in possession of property refuses to return it after demand by someone entitled to possession. The claimant need not prove ownership. Lawful possession as owner, bailee or otherwise is sufficient. Nor is it necessary to prove that the property was stolen, identify the thief, or establish a criminal conviction. In a claim for delivery up, the claimant must establish that the property was in their lawful possession, that it left that possession without authority, and that the defendant obtained possession from someone who lacked lawful possession or authority to transfer it.

The claimants sought delivery up of three show jumpers from the defendant’s possession. They alleged that the horses had been removed from their Belgian stables without authority and later transferred to the defendant by a dealer who lacked title or authority. The defendant maintained that the horses were different animals, that the dealer had authority to barter them, and that the claimants were involved in a fraud.

The court considered ownership, possession, identity, the circumstances in which the horses left the claimants’ possession, and the defendant’s counterclaims for purchase rights and compensation for stabling and livery.

1. Conversion and entitlement to possession. Conversion occurs when a person in possession refuses to return property to another person entitled to possession after demand. The claimant need not prove ownership, theft, identification or conviction of a thief. Lawful possession, whether as owner, bailee or otherwise, is sufficient.
2. Issues to be proved. The claimants had to establish that the horses in the defendant’s possession had been in the claimants’ possession immediately before disappearing; that they had been removed without authority; and that they were transferred by a person who was not lawfully in possession and had no authority from a lawful possessor.
3. Evidence. The identity of the horses was established by the combined effect of documentary evidence, microchip numbers, DNA testing, identifying features and the evidence concerning the Belgian police investigation. The defendant’s unsupported assertions about forged passports and conspiracy did not displace that evidence.
4. The claimants proved that they owned and remained entitled to possession of the three horses. It was unnecessary to determine criminal responsibility, although the court found on the balance of probabilities that the horses had been stolen by the dealer, probably with others.
5. The defendant’s claims to purchase the horses and to compensation for their stabling and livery were dismissed. Immediate delivery up of the three horses was ordered.