respondent. Appeal dismissed. No order altering the result below was made. The supplied judgment states that the respondent's costs would follow the event in Estcourt J's reasons.
Key principles
A party will generally not be permitted to revive on a later appeal a point that it argued at trial but abandoned on an intermediate appeal, particularly where the other party...
On the substantive question, Estcourt J concluded, with Jago J agreeing, that Bitcoin controlled through the relevant private key could be possessed for the purposes of...
Issues before the court
Could the appellant raise on the Full Court appeal the argument that Bitcoin is intangible and cannot be possessed, after raising that issue at...
Can Bitcoin be possessed for the purposes of conversion and detinue?
Did the company structure prevent the appellant personally from being treated as in possession?
Cited legislation
1 cited instrument linked from this judgment.
Plain English Summary
The Full Court dismissed Poulton's appeal against the finding that he was liable in detinue and conversion concerning Bitcoin Conrad had funded. Two judges considered that Poulton could not revive an argument that Bitcoin could not be possessed after abandoning it on the intermediate appeal. Estcourt J, with Jago J agreeing on the substantive issue, also concluded that control of Bitcoin through the relevant key could amount to possession, despite the asset being intangible. The judgment does not settle every question about the legal classification of crypto assets.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,242 words · generated 29/09/2026
What happened
This Full Court appeal arose from a private arrangement made in December 2013. Jeff Conrad paid Adam Poulton $10,000 so Poulton could acquire Bitcoin on Conrad’s behalf. The magistrate found that Poulton did acquire Bitcoin using the money, but a dispute later arose over Bitcoin and other crypto assets derived from it that Poulton retained as a claimed fee. The judgment records that the magistrate accepted Poulton was entitled to a fee, but not to satisfy that fee by keeping a portion of the Bitcoin acquired for Conrad.
Conrad’s pleaded claims included detinue, conversion, trespass to goods, restitution, contract and negligence. The successful claims were detinue and conversion. The magistrate dismissed the negligence claim, found no enforceable contract for want of consideration, and did not refer to the pleaded restitution or unjust enrichment claim in the reasons described by Shanahan CJ. The magistrate found that all the cryptocurrency should have been returned on demand and awarded damages, including exemplary damages and interest, within the Magistrates Court’s $50,000 jurisdiction. Before interest and after allowing $1,500 for Poulton’s fee, damages were $46,000.
There were two appeals. Before Brett J, Poulton pursued one of five original grounds. His arguments concerned the alleged failure to plead a demand, whether his dealings were personal or on behalf of Get Paid In Bitcoin Pty Ltd, and whether Conrad had an immediate right to possession if Poulton could retain 1.5 Bitcoin as a fee. He did not pursue the proposition that Bitcoin, because it was intangible, could not be possessed and could not be the subject of conversion or detinue.
Before the Full Court, Poulton challenged the primary judge’s finding that he was in possession of the Bitcoin, arguing that Bitcoin was intangible and could not be possessed. The Full Court dismissed the appeal. Shanahan CJ and Jago J relied on the procedural history and Poulton’s abandoned position. Estcourt J considered the substantive question and concluded that control of Bitcoin through the relevant key could amount to possession. The court’s reasons therefore address both appellate procedure and an important, but carefully bounded, question about digital assets.
Why the court decided this way
The judges did not express identical reasoning about whether the Full Court should entertain Poulton’s revived argument. Shanahan CJ emphasised the sequence of appeals. The point had been raised and argued at trial, but was abandoned before Brett J. In his view, s 47(3) of the Supreme Court Civil Procedure Act 1932 (Tas) did not govern the situation: that provision concerns a point of law not raised at trial. The difficulty was instead that Poulton sought to take a position contrary to the one on which he had conducted the intermediate appeal.
Shanahan CJ treated the respondent’s lost forensic opportunity as important. Conrad had responded to the appeal as Poulton chose to run it. The judgment records Conrad’s complaint that, if the new ground had been raised squarely before Brett J, he might have cross-appealed or sought to support the magistrate’s result on other grounds. Shanahan CJ considered that allowing Poulton to change position at the next appellate stage could cause procedural unfairness and undermine finality. He referred to the principles in Dovuro Pty Ltd v Wilkins about reopening concessions, and to Port of Melbourne Authority v Anshun Pty Ltd in discussing the potential consequences of later proceedings.
Jago J agreed with Shanahan CJ that Poulton should be prevented from advancing the argument because his position before Brett J was diametrically opposed to the argument made to the Full Court. This was a procedural conclusion, not a finding that every legal question about crypto assets had been settled.
Estcourt J took a different view of whether the argument could be considered. He considered the question to be one of law and reasoned that further evidence or cross-examination would not have changed it. In his view, any prejudice could be addressed through costs, and the respondent’s possible decision not to cross-appeal did not establish prejudice. He then considered the substance.
Estcourt J’s substantive reasoning focused on control. The evidence and findings recounted in the judgment were that Poulton personally dealt with Conrad and had actual control of the Bitcoin through the relevant wallet and private keys. The fact that money entered an account in the company’s name did not, in the primary judge’s analysis, displace the finding that Poulton himself controlled the asset. Estcourt J considered that the person able to interact with the Bitcoin software could possess the property represented by the Bitcoin, even though the asset was intangible and the company was said to own it.
He drew on Yanner v Eaton for the idea that property describes a legally recognised relationship or power in relation to a subject matter, rather than simply naming a physical thing. He also considered Your Response Ltd v Datateam Business Media Ltd, where the English Court of Appeal identified a powerful case for reconsidering the traditional distinction between choses in possession and choses in action. Estcourt J did not consider the English House of Lords decision in OBG Ltd v Allan binding on the Tasmanian court, and regarded the traditional dichotomy as inadequate to deal with the digital context.
Before and after state of the law
Before this appeal, the magistrate had found that Bitcoin could be property and could be the subject of conversion and detinue. He relied, among other things, on the ability to identify Bitcoin holdings, the market in which they were traded and control through the private key. The magistrate applied the criteria associated with National Provincial Bank v Ainsworth: whether the interest is definable, identifiable by third parties, capable of assumption by third parties and sufficiently permanent.
The intermediate appeal did not determine whether Bitcoin could be possessed. Brett J noted that this aspect of the magistrate’s reasoning had not been challenged in the appeal before him. The issue therefore reached the Full Court against a background in which the trial court had accepted the claims and the first appeal had proceeded on different grounds.
The Full Court’s judgment records that Australian curial authority had not authoritatively settled whether Bitcoin is amenable to conversion and detinue. It also notes that courts elsewhere had treated crypto assets as property for purposes such as proprietary injunctions, but that this did not necessarily decide whether the torts of conversion and detinue applied. The judgment discusses AA v Persons Unknown, which treated crypto assets as property for interim proprietary relief, and Re Blockchain Tech Pty Ltd, in which the Victorian Supreme Court treated Bitcoin as property but concluded it was intangible, not possessed and not capable of bailment.
Estcourt J agreed with much of the analysis in Re Blockchain Tech, including its explanation of Bitcoin’s identifying and transactional features, but did not follow its conclusion that Bitcoin could not be possessed. He proposed recognising a third category of intangible property, distinct from choses in possession and choses in action, for assets that are capable of assumption by third parties, rivalrous, subject to exclusive control and susceptible of possession. Jago J agreed with that proposed approach for the purposes of this appeal.
The judgment therefore offers support for treating control of Bitcoin through a private key as capable of amounting to possession for conversion and detinue. It should not be read as conclusively classifying every crypto asset, resolving all questions about ownership, or establishing that every intangible asset can be possessed. Shanahan CJ expressly noted that the broader status of crypto assets and the suitability of historical possessory torts remained open for authoritative consideration.
Key passages with plain-English translation
The supplied judgment text does not consistently preserve the Full Court’s own paragraph numbering. The references below therefore identify the relevant passage by subject and, where available, use paragraph numbers appearing within the judgment.
The abandoned point. Shanahan CJ explained that the argument was raised at trial but abandoned before Brett J. In plain English, the issue was not simply a new legal idea that had never been raised. It was an argument Poulton had previously chosen not to pursue in the intermediate appeal, after Conrad had prepared and responded to the case as it was then run.
The respondent’s potential prejudice. The judgment records Conrad’s contention that he had lost the chance to conduct the trial and intermediate appeal around whether Bitcoin was capable of possession. Shanahan CJ considered that the respondent’s position and the interests of finality weighed against reopening the point. Estcourt J disagreed that this showed unremediable prejudice, considering that the issue was legal and that costs could address any disadvantage.
The control-based account. Estcourt J relied on the finding, quoted from Brett J’s reasons at [32], that Poulton’s relationship with the cryptocurrency satisfied the criteria of actual control and intention to possess. This is not a general finding that whoever knows a key is necessarily the legal owner. It explains why the court considered control relevant to possession in the circumstances of this dispute.
The proposed third category. Estcourt J’s proposal to recognise a third category of intangible property was a response to the traditional division between things in possession and things in action. In plain English, his reasoning was that some digital assets may have features that make control and exclusive dealing meaningful even though the asset is not physical and does not fit neatly into the traditional categories.
The result. All three judges concluded that the appeal should be dismissed. The reasons differ on the procedural question, but the result did not.
What fact patterns trigger this precedent
The judgment is most directly relevant where a party claims that another person wrongfully retained or dealt with Bitcoin, and the evidence concerns who controlled the relevant wallet or private key. The facts here included an arrangement to acquire Bitcoin for another person, a dispute over a retained portion said to be a fee, a demand for return, and evidence that the appellant personally controlled the Bitcoin. The judgment treats those details as material to both possession and the pleaded torts.
It is also relevant to appellate cases where a party seeks to revive a point that was argued at trial but abandoned or not pursued on an intermediate appeal. Shanahan CJ and Jago J’s reasoning highlights the significance of the position taken below, what the other party could reasonably have understood, and whether a later change of position would cause procedural unfairness or affect finality.
The judgment does not establish that every crypto asset has the same technical or legal attributes as Bitcoin. Nor does it say that a person who controls a key will always be liable in conversion or detinue. The causes of action still involve their own requirements, including an immediate right to possession and, for detinue, demand and refusal as described in the magistrate’s reasons. A different asset, custody arrangement, access structure, contractual arrangement or procedural history could raise different issues.
How later courts have treated it
The supplied material is the Full Court’s judgment itself and contains no account of later cases applying, distinguishing or limiting Poulton v Conrad. It is therefore not possible, on the supplied sources, to describe how later courts have treated this decision.
Within the judgment, the Full Court considered earlier authorities and decisions from other jurisdictions, including Yanner v Eaton, Your Response, OBG, AA v Persons Unknown and Re Blockchain Tech. Those are the authorities considered by this court, not later treatment of Poulton. The judgment states that no decision legally binding on the Full Court had resolved whether Bitcoin was amenable to conversion and detinue.
Still-open questions
The judgment leaves open how broadly its reasoning applies beyond Bitcoin and the facts of this dispute. Estcourt J’s proposed third category is framed by particular characteristics: the asset must be capable of assumption by third parties, rivalrous, capable of exclusive control and susceptible of possession. The judgment does not provide a complete test for applying those characteristics to other digital assets or explain how they interact in every case.
The relationship between legal ownership and control is also not fully resolved. The facts included a company said to own the Bitcoin, while Poulton was found to exercise personal control over it. Estcourt J considered the company’s ownership was not decisive to whether Poulton possessed the asset. The judgment does not set out a complete account of when a custodian, employee, company officer or other person controlling a key will have possession, or how competing claims by an owner and controller should be resolved in different circumstances.
The scope of conversion and detinue remains an issue. The judgment supports their application to Bitcoin on the facts addressed, but does not decide that all digital information or intangible property is capable of possession. It also does not comprehensively address whether the requirements and remedies of the two torts fit all forms of crypto custody or blockchain transaction.
Finally, the procedural reasons illustrate an unresolved practical tension: appellate courts must apply the law, but may refuse to reopen a legal point because of abandonment, prejudice, finality and the way litigation was conducted. The judges differed on how those considerations applied here, even though all dismissed the appeal. That difference matters when reading the judgment’s substantive discussion alongside its procedural disposition.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (161 paragraphs)
[1]
Poulton v Conrad [2025] TASFC 7 (19 September 2025)
Appeal and New Trial - General principles - Points and objections not taken below - When not allowed to be raised on appeal - Particular case - Question of law - Whether point not raised on intermediary appeal can be raised on a subsequent appeal - Where the appellant raised and argued the point at trial and subsequently abandoned it on the intermediary appeal - Single ground in this appeal contrary to the case run below - If the appellant were allowed to rely on the ground of appeal pleaded then the respondent would be denied opportunity to cross-appeal below - The appellant's notice of appeal should be confined to the ambit of the facts run on intermediary appeal - Appeal dismissed.
[6]
Appeal and New Trial - Appeal general principles - Right of appeal - When appeal lies - Error of law - Particular cases involving error of law - Failure to give reasons for decision - Adequacy of reasons - Trial Judge held bitcoin intangible - Upheld Magistrates finding of conversion and detinue - Appellant submit intangible property not subject to action - Argument allowed despite not raised below - Person or entity with key to access the wallet is in control of the Bitcoin - That control equates to possession of property sufficient for conversion and detinue - Powerful case for reconsidering dichotomy between choses in possession and choses in action to recognise intangible property - House of Lords highly persuasive but not binding - Company did not shield appellant - Appellant was in possession of the Bitcoin to establish action - Appeal dismissed.
This dispute began with an action in the Magistrates Court that arose out of an arrangement between the parties made in December 2013, whereby the appellant was, on behalf of the respondent, to invest the sum of $10,000 paid to the appellant by the respondent, in the digital currency bitcoin. There was some dispute as to whether the respondent dealt with the appellant personally or his related company Get Paid In Bitcoin Pty Ltd ("Get Paid In Bitcoin"). The magistrate held that the appellant did use the money to acquire a quantity of bitcoin on behalf of the respondent, however a dispute arose regarding the bitcoin, together with other crypto currency derived from the acquired bitcoin, which the appellant retained as a claimed fee for his services.
The matter was heard by Magistrate R Webster. It then went by way of a single judge appeal before Brett J before coming before this Full Court. An account of that process lies at the heart of the disposition of this appeal.
[24]
The action, in the Magistrates Court, pleaded a number of causes of action, including detinue, conversion or trespass to goods, restitution, contract, and negligence. The jurisdictional limit of the Magistrates Court is $50,000. That court has an equitable jurisdiction, by s 9 of the Magistrates (Civil Division) Act 1992 including but not limited to, at s 9(k): "any other matter which is within the equitable jurisdiction of the Supreme Court and which is in respect of an amount that does not exceed the prescribed amount other than (i) an action for the administration of a deceased person; or (ii) an action for the execution of a trust or for a declaration that a trust exists". The rider at s 9(k)(ii) may explain why no action was brought by the respondent in respect of the $10,000 provided to the appellant being impressed with a trust to invest those funds in bitcoin.
[25]
The alternative claim in restitution was particularised in the form of a claim for unjust enrichment, ie:
[26]
"Further or in the alternative, in the circumstances as pleaded, the Defendant has received the benefit of $10,000 transferred to him by the Claimant and the Claimant claims $10,000 less bitcoin received from the Defendant as restitution by reason of the following:
[27]
There was no contractual relationship between the Claimant and the Defendant;
The Defendant has received the benefit of $10,000 from the Claimant;
The Claimant has not had the $10,000 or a valuable equivalent since transferring it to the Defendant and has therefore been put to loss and expense.
It would be unjust for the Defendant to retain the $10,000 less bitcoin given to the Claimant."
[28]
The magistrate addressed the respondent's claims on the basis that the claims were "...in detinue and conversion or alternatively ... damages for breach of contract and/or negligence". It is unclear as to the disposition of the action pleaded in restitution/unjust enrichment, there was no reference to it by the magistrate in his reasons.
The magistrate accepted the respondent's evidence but rejected that of the appellant unless it was "corroborated by clear, unambiguous and reliable evidence." The appellant's evidence-in-chief at trial was that:
[29]
"Yeah the arrangement was um for me to acquire Bitcoins for him ... So it was early in 2014 um I had um personal Bitcoins that I had already from past dealings. Um I was already in the early stages of my business at that point in time so I actually had ah Bitcoins um that were fir Get Paid In Bitcoin as my float. And um yeah the agreement with Jeff was for me to look at the market as we'd um discussed in a few scenarios in my emails with him. And that was for me to deploy the funds that he sent to me, um over the next coming days and week, um in any manner that I see fit to um acquire Bitcoins um at a representative market price at that time. And um you know, in that process I used ah some of the float that I had previously um along with a small amount that I actually purchased on um an exchange called Coinjar at that time.
[30]
Yeah so there were three times that I purchased um Bitcoins for Jeff ... Yeah so on 27th of ah December there was $1000 Bitcoin purchased and that amount of Bitcoins were um received from Coinjar. Um and I also added um $2000 worth of Bitcoins from our pooled um holdings. On 6th January um there was another $1000 um resulting 1.0908 um Bitcoins. Um and there was five and a half thousand allocated from my holdings at the equivalent exchange rate. And on 6th February a similar, so the $500 was purchased then um giving me an exchange rate and two and a half thousand dollars was allocated from our um Bitcoin holdings.
[31]
I started the process of moving the funds to a paper wallet and um gave these to Jeff I think it was June or July 2014".
[32]
"I came up with the idea of putting it on a paper wallet and actually gave him them.
[33]
Q: Up until July 2014 when you've had this fantastic idea after hours of research to put the Bitcoin on a paper wallet, um up until that point it was only you who could control the Bitcoin you'd acquired for Mr Conrad wasn't it? - Yes".
[34]
The magistrate had the benefit of expert evidence as to the nature of bitcoin and how it was traded and held, being reports from Mr Andreas Hufschmidt a day trader and financial analyst on behalf of the respondent, and Mr Joseph Richards, a bitcoin trader and operator of a "digital currency exchange" with an annual turnover of $25 million, on behalf of the appellant.
[35]
The expert evidence of Mr Richards, the appellant's expert, before the magistrate, was to the effect that in 2013 bitcoin "was mostly unheard of", and:
[36]
"A fundamental part of being able to transact bitcoin is the use of software called 'wallet ap'. In 2103 ... [t]here were exceptions but typically a bitcoin user would be operating software on their computer ... The wallet app also has one or more addresses which can be shared with others to receive bitcoin funds. 'Bitcoin addresses are a jumble of numbers and letters, much like email addresses. These addresses can be shared with other people and other services when you wish to receive funds. When the funds are received, it is possible (both in the user's wallet and on the public blockchain ledger visible to the whole world) to see which address received which amount, and when.' Further, 'bitcoin transactions typically take 10 minutes' and 'Like foreign exchange rates and share prices, the value of bitcoins is determined by trading on various markets worldwide.'"
[37]
Mr Richards explained how that lack of familiarity might be addressed by the "practical" interim step of providing a bitcoin purchaser with a paper wallet whilst they learnt how to operate an electronic wallet and retain "custody" of the bitcoin:
[38]
"A practical solution to a buyer's inability to operate a bitcoin wallet is to print a 'paper wallet' which contains the secret 'key' (similar to a very very large PIN number) which allows the holder of a paper key to retrieve their funds at the time they are capable of operating their own bitcoin wallet.
[39]
A person offering custodial services could have charged $300 to $1000 (or more) for the time and effort involved in securing the digital private keys and producing these in a format (such as a paper wallet) to their client." (Italics added.)
[40]
Mr Richards explained that the "paper wallet" was a method of delivering bitcoin to the respondent:
[41]
"... Mr Poulton ...[the appellant] ... could have discharged his responsibility in acquiring the bitcoins by delivering all of them (rather than some) to Mr Conrad ... [the respondent] ... on a paper wallet." (Italics added.)
[42]
Mr Richards described the holdings of bitcoin in the paper wallet as a "supply" and as equivalent to "custody", and described the possibility of "physical" loss of bitcoin:
[43]
"It appears from Mr Poulton's affidavit that Mr Poulton wished to discharge this responsibility, and indeed the initial supply of funds to Mr Conrad via paper wallet due to an up-coming overseas trip. This was a prudent step to take to ensure that Mr Conrad had custody of part of his funds in the event of incapacity of Mr Poulton ...
[44]
Many bitcoin have been lost in the past due to the death of a bitcoin investor or loss of the private key. Although paper wallets can also result in physical loss should the paper wallet be destroyed, spreading Mr Conrad's bitcoins over multiple holding methods was appropriate and demonstrated due care and consideration.
[45]
It seems likely that the process of explaining how to take custody of the funds via the paper wallet and later an electronic wallet would take some time and effort". (Italics added.)
[46]
The respondent's claim in negligence was based on Mr Hufschmidt's opinion that the appellant had not acquired bitcoin on behalf of the respondent with due care and skill. That conclusion was challenged by the appellant's expert, Mr Richards, and the magistrate dismissed this aspect of the claim.
The magistrate accepted that the appellant was entitled to a fee, however held that he was not entitled to claim a portion of the bitcoin that he had acquired for the respondent in order to satisfy that entitlement. Despite finding that the appellant was entitled to a fee for his services in purchasing bitcoin (and assessing an appropriate fee), the magistrate dismissed the claim in contract because:
[47]
"In this case it was agreed the defendant would invest the claimant's $10,000 in Bitcoin however nothing of value, such as an agreement to pay a fee, was promised in return. That is there was no consideration and accordingly there can be no enforceable contract."
[48]
The respondent's claims in detinue and conversion were successful. The magistrate found that all of the cryptocurrency should have been returned to the respondent upon demand. He awarded damages (including exemplary damages and interest), limited to the monetary jurisdiction of the Magistrates Court, namely $50,000. Before interest and allowing a sum of $1,500 for the appellant's fee, the damages were $46,000.
[49]
The late medieval, early modern, forms of action sought to protect possessory rights over chattels. The nature of the remedy reflected the type of alleged interference with such rights. Wrongful appropriation sounded in trespass, wrongful detention in detinue and wrongfully disposing of the chattel in trover. Trover emerged in the second half of the fifteenth century as an action on the case in which the plaintiff alleged that he was in possession of certain goods and lost them, and the defendant found them and converted them to his own use. The loss and finding were not traversable so the question resolved as to whether the plaintiff's right to possession had been infringed by the act of conversion: Fleming, JG The Law of Torts, Law Book Company Limited, 7th Edition at p 50. As Fleming notes, "in truth the action is proprietary in substance only tortious in form. For want of a vindicatory action, early English law had to employ a tortious remedy as a substitute": The Law of Torts at p 49. It came to be accepted that refusal to deliver after demand was evidence of conversion.
[50]
A plaintiff in an action for conversion or detinue must show an immediate right to possession at the time of the act of conversion. Thus, those remedies require proof that a defendant has wrongfully taken, transferred, withheld or denied possession to a plaintiff who is so entitled.
[51]
The magistrate made the following finding, in the context of the action in conversion, as to the nature of the respondent's right to immediate possession of the bitcoin acquired by the appellant on his behalf:
[52]
"In so far as conversion is concerned the claimant ... [respondent] ... gave the defendant ... [appellant] ... $10,000 so the defendant could invest in Bitcoin on the claimant's behalf. Accordingly once the defendant either purchased Bitcoin from Coinjar or allocated some of his own Bitcoin to the claimant, at the same rate that he purchased Bitcoin from Coinjar, then the claimant had a right to possession of those Bitcoin because they were purchased for him.There is no evidence to suggest the Bitcoin which the defendant acquired for the claimant belonged to anyone other than the claimant and there is no evidence to suggest anyone else has a better right to possession of that Bitcoin than the claimant." (Italics added.)
[53]
The important matter here, and why I have set out the expert evidence of the appellant's expert, Mr Richards, is the apparent absence of any case based on the premise that bitcoin, being intangible, could not be possessed, and by implication transferred. The expert evidence of Mr Richards on behalf of the appellant assumed that bitcoin, despite being intangible, could be possessed by reference to "custody" and was capable of "physical" possession through the medium of a "paper wallet". The descriptions given by Mr Richards tended to equate control (access to the electronic private key numbers relevant to the bitcoin) with possession.
[54]
The appellant (defendant) by paragraph 11 of its defence admitted that part of the bitcoin acquired by the appellant with the respondent's (claimant's) $10,000 had been "transferred" to the respondent by the use of a paper wallet:
[55]
"11 On or about 24 July 2014, the Defendant transferred 6 bitcoins into a paper wallet and gave this wallet to the Claimant at his work premises of [address specified]:
[56]
The Claimant did not request that the Bitcoins be transferred to him, but the Defendant did this unilaterally, for security reasons in preparation of the Defendant taking an overseas trip.
The purpose of transferring the Bitcoin to the paper wallet was to keep the majority of Bitcoins secure whilst the Defendant was away and not in a position to move Bitcoins via the Bitcoin exchange accounts if necessary.
When the Defendant handed over the paper wallet, the Defendant advised the Claimant that the paper wallet contained 6 Bitcoins.
The defendant also advised the Claimant that he was able to verify the number of Bitcoins in the paper wallet by scanning the QR code using any QR scanner." (Italics added.)
[57]
Whilst no unambiguous positive defence was pleaded to the actions by the respondent in conversion and detinue asserting that such relief was not known to law, it is possible that is what was contemplated by the averment at paragraph 27 of the defence responding to those claims (at paragraph 14 of the Amended Claim) in the following terms:
[58]
"27 Paragraph 14 is denied and the Defendant says further that the allegations in paragraph 14 are vague, ambiguous, likely to cause prejudice, embarrassment or delay in the proceeding and are likely to be struck out."
[59]
Despite the nature of the expert evidence adduced at trial, the appellant (defendant) clearly raised and argued whether an action in detinue or conversion in respect of bitcoin was available, and the magistrate allowed the point to be taken, no doubt based on the broad nature of the averment at paragraph 27 of the defence. The magistrate considered the point at paragraph 76 of his reasons (italics are original):
[60]
"In his closing submissions the defendant ... [appellant] ... disputes that Bitcoin is a good or that it amounts to property. He submits 'no court in the world has given Bitcoin the title of goods or property or given rights to cryptocurrency which is capable of attracting conversion or detinue'. In his reply to the claimant's ... [respondent's] ... closing submissions the defendant repeats that submission but then refers me to the High Court decision in England and Wales of AA v Persons Unknown andOrs[2019] EWHC 3556 wherein Bryan J considered this very issue in the context of granting a proprietary injunction. His Honour noted the difficulty in treating cryptocurrency as property because the English common law recognised no forms of property other than choses in possession and choses in action. He came to the conclusion however that a crypto asset such as Bitcoin is property because it meets the four criteria set out in Lord Wilberforce's definition of property in National Provincial Bank v Ainsworth[1965] UKHL 1; [1965] 1 AC 1175 as being definable, identifiable by third parties, capable in their nature of assumption by third parties, and having some degree of permanence ... Bryan J noted that the same conclusion was arrived at by the Singaporean International Commercial Court in B2C2 Limited v Quoine PTC Limited [2019][ SGHC (1) 03 [142]. Further he noted at [60] two other English authorities where crypto currency has been treated as property. In Shair.Com Global Digital Services Ltd v Arnold2018 BCSC 1512 the Supreme Court of British Columbia granted an ex parte preservation order to the plaintiff company against its former chief operating officer with respect to digital currencies that might still be in the defendant's possession and by so doing accepted crypto currency could amount to property."
[61]
The magistrate also noted the New Zealand decisions of Ruscoe v Cryptopia Ltd (in liq)[2020] NZHC 728; Dixon v R[2015] NZSC 147; [2016] 1 NZLR 678 and Commissioner of Police v Rowland[2019] NZHC 3314, which dealt with what constituted property under various statutory definitions. In Henderson v Walker[2019] NZHC 184 the Court extended the tort of conversion to purely personal digital information, including emails.
[62]
In terms of Australian precedents the magistrate considered Yanner v Eaton[1999] HCA 53; (1999) 201 CLR 351 at 365-367 where Gleeson CJ, Gaudron, Kirby and Hayne JJ discus what "property" is, in the context of a dispute as to whether native title rights protected the right of a member of the Gunnamulla clan of the Gangalidda tribe to hunt for juvenile estuarine crocodiles, despite the then requirements of s 54(1)(a) of the Fauna Conservation Act 1974 (Qld) which only permitted the taking of fauna by the holder of a licence, permit, certificate or other authority granted and issued under that Act. Albeit there were exceptions including taking fauna during "open seasons" and when and where it was not protected fauna, their Honours observed (footnotes omitted, italics added):
[63]
"[17] The word 'property'; is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, 'property' does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of "property" may be elusive. Usually it is treated as a 'bundle of rights'. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said, that 'the ultimate fact about property is that it does not really exist: it is mere illusion'. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by 'property' in a subject matter ...
[64]
[18] Nevertheless, as Professor Gray also says, 'An extensive frame of reference is created by the notion that 'property' consists primarily in control over access. Much of our false thinking about property stems from the residual perception that 'property' is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.'
[65]
[19] 'Property' is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not 'a monolithic notion of standard content and invariable intensity' ...".
[66]
The magistrate cited R v Toohey Ex parte Meneling Station Pty Ltd[1982] HCA 69; [1982] 158 CLR 327 at 342 for the proposition that the test formulated by Lord Wilberforce in National Provincial Bank v Ainsworth[1965] UKHL 1; [1965] 1 AC 1175 has been applied in Australia. Further, that when confronted by the question of whether something is property, the courts have focussed on various integers, including:
[67]
(i) whether it is possible to exclude others from the right in question: Milirrpum v Nabalco Pty Ltd(1971) 17 FLR 141 at 272;
[68]
(ii) whether something is treated in commerce as a valuable proprietary right: Halywood Corporation Ltd v Chief Commissioner of Stamp Duties (1992) 33 NSWLR 395 at 403; and
[69]
(iii) enforceability against third parties generally: Wily v St Georges Partnership Banking Ltd[1999] FCA 33; (1999) 84 FCR 423 at 426.
[70]
The magistrate described the issue in the following terms, "when considering whether something amounts to property it is necessary to consider a range of factors none of them are definitive". It is certainly interesting to consider whether property has such an innominate quality. This description is evocative of the observations of Professor Gray in Yanner.
[71]
The magistrate, at [82], then considered the factors identified and found, no doubt in part in reliance upon the expert evidence tendered by the appellant (defendant), that:
[72]
"... there are in my view, factors that support the conclusion Bitcoin holding rights are proprietary in nature. The most forceful of these is that Bitcoin are treated as valuable, transferable items of property by Bitcoin traders and users. As the evidence in this case demonstrates there is an active market for trade in Bitcoin and substantial amounts of money can change hands between transferors and transferees of Bitcoin ...".
[73]
Ultimately, the magistrate held that bitcoin constituted property and could be the subject of claims in conversion and detinue. In particular, he concluded at [83] that the relevant bitcoin software "restricts control of a holding to the person in possession of the relevant private key or pin", and that these holding rights "are definable, identifiable by third parties, capable of assumption by third parties and sufficiently stable to satisfy the test" in National Provincial Bank v Ainsworth[1965] UKHL 1; [1965] 1 AC 1175.
[74]
The appellant appealed against the magistrate's decision pursuant to s 28 of the Magistrates Court (Civil Division) Act1992. The nature of such an appeal is a rehearing conducted on the evidence before the magistrate (see Barnett v Tasmania Water and Sewage Corporation Pty Ltd[2018] TASFC 7).
[75]
The notice of appeal of 3 October 2023 disclosed five grounds of appeal, that the learned magistrate erred in fact and/or law as follows:
in finding at [94] of his reasons that the torts of detinue and conversion had been established on all the evidence;
[76]
in finding at [45] that the respondent dealt personally with the appellant and not Get Paid In Bitcoin;
[77]
in finding at [103] that the appropriate measure of damages included the increase in the value of bitcoin from the time of the alleged conversion and alleged wrongful detention;
[78]
in finding at [112] that the respondent was entitled to damages which included bitcoin cash and gold; and
[79]
in finding at [112] that the respondent was entitled to exemplary damages.
[80]
The finding at [94] referenced at ground 1 was to the effect "Accordingly, I find the torts of detinue and conversion established". No further particulars were given and there was no direct attack on the findings at [82] or [83] of the magistrate's decision, and the reference to "the sufficiency of the evidence" suggested an error in fact finding or assessment of the evidence rather than a challenge to the proposition that such rights were susceptible to action in conversion or detinue.
[81]
The appeal was heard by Brett J. Only one ground was pursued before the learned primary judge, namely that the magistrate erred, "by finding at [94] of his reasons that the torts of detinue and conversion had been established on all the evidence.": Poulton v Conrad[2025] TASSC 2 at [3].
[82]
The appellant made three arguments to the learned primary judge in support of the sole ground of appeal. They were, (i) that the respondent failed to plead a demand on 5 March 2018, (ii) that the appellant's dealings with the respondent were on behalf of the appellant's company, Get Paid In Bitcoin, and not him personally and, (iii) that if the appellant was entitled to retain 1.5 bitcoin as his fee, then the respondent's claims in conversion and detinue must fail because the respondent was not entitled to immediate possession of the property. It was implicit in the manner in which the appellant conducted the appeal before Brett J that bitcoin was property capable of immediate possession.
[83]
Brett J noted at [6] that the finding of the magistrate that bitcoin amounted to property, for the purpose of the causes of action in detinue and conversion, was not challenged in the appeal, no doubt because he was alive to the ambiguity in the manner in which ground 1 was pleaded before him. I set out that finding in full because it reflects the position of the parties below, referring to bitcoin, Brett J observed at [6]:
[84]
"Because of its digital nature, it is intangible. However, the magistrate held that it constitutes property. In particular, his Honour concluded that the relevant software 'restricts control of a holding to the person in possession of the relevant private key or pin' and these holding rights 'are definable, identifiable by third parties, capable of assumption by third parties and sufficiently stable to satisfy the test' in National Provincial Bank v Ainsworth[1965] UKHL 1; [1965] 1 AC 1175. In other words, the person who holds the wallet, which contains the private key, will exclusively control the Bitcoin related to it. His Honour's findings concerning Bitcoin amounting to property, for the purposes of the causes of action in detinue and conversion, has not been challenged in this appeal." (Italics added.)
[85]
Brett J rejected each of the three arguments made in support of ground 1 and concluded at [38]:
[86]
"I can detect no error in the magistrate's determination of the claim in detinue and conversion. The sole ground of appeal has not been made out. Accordingly, the appeal is dismissed."
[87]
It is that finding by Brett J at [38] below that ultimately became the target of the error asserted by the appellant in the appeal to this Court.
[88]
The appeal, as set out in the appellant's notice of appeal, asserts that Brett J:
[89]
"Erred in law or fact in finding at [32] that the Defendant was in possession of the bitcoin at all material times when bitcoin is intangible property and cannot be possessed and therefore erred in finding that the magistrate correctly found that the claims in detinue and conversion had been established."
[90]
As will be seen, paragraph [32] of Brett J's reasons was in a section dealing with the appellant's argument that the evidence established that it was actually the appellant's company, not him personally, that acquired and had possession of the disputed crypto currency at all relevant times, and in particular at the time that the respondent demanded its return. Accordingly, the argument made before Brett J was that as a matter of fact, the company not the appellant had possession of the bitcoin when demands where made for its return. That argument is entirely consistent with the proposition that bitcoin is property, capable of possession and susceptible to actions in conversion and detinue.
[91]
Paragraph [32] needs to be read in context and, accordingly, I now set out his Honour's reasons from [30]-[33]. They read as follows:
[92]
"[30] Both parties accept that the magistrate correctly recited the elements of both detinue and conversion in his reasons for judgment. It is also correct to observe that in the circumstances of this case, it was necessary for the respondent to establish that the appellant was in actual possession of the crypto currency when the demands for its return were made and refused by him. This is a primary element of the tort of detinue, and was conduct relied upon to establish the inconsistent dealing necessary to establish the tort of conversion. It is clear the magistrate proceeded on the basis that the appellant was in actual possession of the crypto currency at the relevant time.
[93]
[31] There is no doubt that the evidence established that the $10,000 was paid into an account, which in actual fact was in the name of the company. However, the evidence also overwhelmingly established that it was the appellant personally who not only dealt with the respondent, but was also in actual control of the Bitcoin. In this regard, the proprietary nature of a person's interest in crypto currency is important. The excludability of the asset and hence its value, arises from personal control of the wallet and private keys. As the magistrate observed, the conduct and communications of the appellant conveyed that it was he, personally, that exercised this control. He did not claim throughout the course of the relevant dealings that he was only doing so on behalf of the company. The mere fact that money went into and came out of an account in the name of the company does not change this reality. Further and in any event, the appellant confirmed in evidence that he was the alter ego of the company. There is no suggestion that anyone else was involved. The fact was confirmed by the appellant in his re-examination when he was asked by his counsel to explain his understanding of legal personalities. He replied:
[94]
'I presume because I was the sole shareholder of Get Paid in Bitcoin that .... me and Get Paid in Bitcoin is the same entity.
[95]
[32] The nature of Bitcoin and the defendant's control over it makes it clear in my view that he was in possession of the relevant property at all material times. It is trite law that a person is in possession of property if that person has actual control of the property and an intention to possess it. See Pollock and Wright, an Essay on Possession in the Common Law, Clarendon Press Oxford 1888. In this case, I am satisfied that the appellant's relationship to the crypto currency in dispute satisfied those criteria.
[96]
The appellant's notice of appeal must be confined, in this regard, to the ambit of the learned primary judge's determination of that one argument, ie the appellant's reliance on the corporate veil.
[97]
On one view the appellant might be precluded from advancing the ground of appeal upon which he now seeks to rely before this Court. Section 47 of the Supreme Court Civil Procedure Act1932 provides, relevantly:
[98]
(1) Subject to the provisions of this Act, a Full Court, on the hearing of every appeal, shall have and may exercise all the jurisdiction, powers, and duties of the Court, whether as to amendment or otherwise, and shall have power to draw inferences of fact not inconsistent with the findings of the jury, if any, and to affirm, reverse, or vary, as to all or some or any one of the parties, any judgment, order, or determination appealed from, and to give any judgment or make any order or determination which ought to have been given or made, and to grant a new trial in any cause or matter in which there has been a trial (whether with or without a jury), and to make such further or other order as the case may require.
[99]
(2) On the hearing of every appeal from a judgment given, or an order or other determination made, by a judge sitting without a jury, a Full Court shall have full power to review the judgment, order, or determination appealed from on questions of fact as well as law.
[100]
(3) On the hearing of any appeal a Full Court, if it is satisfied that no injustice will thereby be done,may allow any party to raise any point of law which was not raised at the trial, and may determine the appeal on any such point." (Italics added.)
[101]
Some reliance was placed by the appellant upon the proposition that he be allowed to raise a new legal argument on appeal before this Court pursuant to s 47(3). It is immediately clear that the argument sought to be run on this appeal is contrary to the case run by the appellant before Brett J, and is made in relation to a point that, whilst not argued before Brett J, was live at the trial before the magistrate, see the magistrate's reasons at [76].
[102]
Thus, s 47(3) can have no application here because it applies only when points of law are sought to be argued that were not raised at trial. The single ground relied upon before this Court was raised at the trial but was abandoned below, before Brett J. Any injustice arising in allowing the appellant to now rely upon a position contrary to that advanced before Brett J emerges not because the point was not raised at trial but because of the position taken by the appellant below, a position that reflects forensic judgments by the appellant upon which the respondent is entitled to rely.
[103]
Submissions by the respondent before this Court complained that if the appellant were now allowed to rely on the ground of appeal pleaded, it would deprive the respondent of the opportunity to cross-appeal before Brett J and seek to broaden the grounds considered below which may have included seeking to support the decision before the magistrate on alternative grounds. Here the pleaded causes of action in restitution and unjust enrichment are noted, see [4]-[5] above. Propositions emerging in exchanges with members of this Court that suggested that the respondent may now be able to commence fresh proceedings against the appellant by pursing an equitable remedy, merely crystallise the potential prejudice to the respondent because any such further proceedings may be precluded on the basis of the principles in Port of Melbourne Authority v Anshun Pty Ltd[1981] HCA 45; (1981) 147 CLR 589.
In Port of Melbourne Authority v Anshun Pty Ltd the High Court upheld an order staying a common law action in tort by a crane owner; in circumstances where a workman had been awarded damages having sued the crane owner and a hirer in respect of injury to the worker arising out of the crane hire, and the owner brought separate proceedings against the hirer seeking an indemnity in respect of those damages. The owner was estopped in the subsequent action from raising an indemnity agreement because the owner had unreasonably refrained from raising it in the initial action and it was so closely connected with the subject matter of the initial action that it was to be expected that the owner would have raised it as a defence as against the hirer. It was held that a judgment in the subsequent action on the indemnity if in favour of the owner would conflict with the orders made in the first action:
[104]
"In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter, it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings, eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few."
[105]
Appellate courts are very reluctant to allow a point or objection to be raised for the first time on appeal if that point was either expressly_, or in effect_ conceded or abandoned in the courts below: see Sutton v Gundowda Pty Ltd[1950] HCA 35; (1950) 81 CLR 418 per Latham CJ, Williams and Fullagar JJ at 438; Coulton v Holcombe[1986] HCA 33; (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan and Dawson JJ at 6-8; Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd[1978] HCA 8; (1978) 139 CLR 231 per Barwick CJ at 241, Mason J and Jacobs J concurring at 271, Murphy J concurring at 283-284; Igaki Australia Pty Ltd v Coastmine Pty Ltd(1996) 34 IPR 37 (FAFC); O'Sullivan v Watson(1986) 7 NSWLR 693 per Mahoney JA at 699. As Barwick CJ observes in Port Jackson Stevedoring Pty LtdvSalmond & Spraggon (Aust) Pty Ltd at 241:
[106]
"... it should only be in the clearest case and for the most cogent reasons that a party who has conceded ...[a] ... matter at trial should be allowed to make the validity of what has been conceded the basis for overturning the result at trial."
[107]
The same principle must be applied to attempts to appeal from an intermediate appeal before a single judge. The appellant sought to rely on the finding by Brett J at [38] as a general endorsement of the magistrate's finding in respect of every element of the actions in detinue and conversion, but that proposition should be approached very carefully because that finding has to be understood as bound by the ambit, substance and context of the argument before Brett J.
In Dovuro Pty Ltd v Wilkins[2003] HCA 51; (2003) 215 CLR 317, Kirby J dealt with the applicable principles (Footnotes omitted.):
[108]
"[88] In this Court a like principle has been insisted upon, although it is usually explained in terms of the rules of procedural fairness or natural justice. If a concession withdrew from the field of litigation an issue that might have been affected by evidence, it would normally be unjust (unless repaired by relevant admissions or concessions) to permit a reopening of the point on appeal.
[109]
[89] Such cases apart there remains in every contested application a decision to be made. On the one hand if all the facts of possible relevance to the issue have been adduced and the question is one of a pure question of law or of legal construction the interests of justice may require that a party be allowed to withdraw a concession and to make submissions on a point of law or a construction abandoned below. Such an approach is hardly surprising. A court is normally obliged to apply the law. Parties do not have the power by their concessions or agreement, to require a court to do otherwise. Sometime, however, by the course followed at trial, a party may put itself beyond rescue. In such a case, although the law remains as it is, the party may be disabled from invoking it.
[110]
[90] Even where the issue is one of pure law or of legal construction and its consideration involves no procedural unfairness, a court may nevertheless refuse to allow a party to re-open an issue earlier conceded. The court must weigh the public interest in the finality of litigation; the desirability that appellant courts should normally have judicial findings and reasoning before considering the point; and the need to uphold the efficiency and authority of the judicial process.
[111]
[91] It has been suggested that some of the earlier decisions, amenable to permitting issues of law and construction to be argued absent prejudice, represent "words ... uttered in another age and in other circumstances". The more urgent contemporary demands for case management and efficiency indeed suggest the need to reconsider some of the earlier dicta. On the other hand, such considerations do not override the duty of Australian courts to the law and to the determination of justice as between the parties according to law. Especially in a lengthy and complex trial, it is easy enough for a point of law or construction to be overlooked or mistaken. Because judicial decisions are not mechanical but affect the interests of parties (and often express the law in ways important for other or later litigants) cases continue to arise where concessions at trial are seen to have been erroneous, unnecessary or unwise. So long as the appellate court can safely decide the point, taking into account the reasons that exist for denying it consideration, this Court would rarely interfere so as to require a different conclusion."
[112]
It is my view that the finality of litigation, the procedural unfairness to the respondent in the appellant conducting the appeal to Brett J on a diametrically opposed basis to its approach in this Court and arguably, thereby, encouraging the respondent to adopt a limited responsive position, the absence of full argument before Brett J on the point raised before this Court in the context of the novelty and importance of the issues raised, all militate against allowing the appellant to rely upon the ground pleaded in this Court. It is no answer to these observations, in the context of contemporary case management and the opportunities denied a litigant in the respondent's position, to suggest that the quality of the issue as a matter of law and the fact that it was argued at trial before being abandoned and then resuscitated, assuages any disadvantage to a party or the public interest in the appropriate resolution of such matters. That is so despite the rider at s 9(k)(ii) of the Magistrate's (Civil Division) Act 1992 (discussed at [3] above).There is no way back through the waters of the Lethe. Consequently, I would dismiss the appeal on that basis.
Whilst the trial before the magistrate was not a long or complex trial the issues raised for decision had a novel quality and were of obvious importance. The legal status of bitcoin and other crypto assets, as neither choses in action nor choses in possession, is yet to be authoritatively settled by Australia's curial court. In those circumstances, the availability of common law actions in conversion and detinue in a case such as this remains at large, as does their suitability as remedies in this context for contemporary times. The efficacy of remedies developed in the fifteenth century for protecting species of wealth in the twenty first century deserves close attention in an appropriate case but not at the expense of a litigant in the respondent's position.
I have had the benefit of reading the reasons of Estcourt J. He would dismiss the appeal on the substantive question raised by the single ground. Were the matter to proceed on another basis, other than the basis upon which I dismiss this appeal, I consider that bitcoin as a specie of wealth traded commercially and widely dealt with as property (as reflected in the expert evidence led by the parties in this case) falls to be legally recognised and treated as a proprietary interest. Such wealth confers rights upon the holder of the relevant key or PIN, it is more than merely a collection of information or data. Indeed, the UK High Court in at 36 ([156]) considered whether a crypto asset "Tether" constituted property:
[113]
"The asset is more than mere data. It is a set of transactional functionalities. The most important of these is the capacity of the person who holds the private key to effect new transactions which will be recognised as valid by the rules of the system. Analysed in this way, the asset can be viewed as a specific transactional power over unique data entries on the ledger."
[114]
Confirmation, or recognition, of crypto assets as property would be consistent with the burgeoning legislative treatments of such assets as property.
That said the issue, as to the availability of conversion and detinue, then devolves to whether crypto assets, such as bitcoin, are capable of possession. Pollock and Wright, An Essay On Possession In Common Law, Clarendon Press, Oxford 1888, state "a person is in possession of property if that person has actual control of the property and an intention to possess it". The learned authors make a distinction between de facto possession and possession at law. It is noted that, given this case's focus on detinue, that de facto possession was in 1888 described as "detention" on the Continent and may be paraphrased as "effective occupation or control": see Pollock and Wright, An Essay On Possession In Common Law, Clarendon Press, Oxford 1888 p 12. De facto possession has a mental element, "An act which is not done or believed to be done in the exercise or assertion of dominion will not cause the person doing it to be regarded as the de facto exerciser of the powers of use and enjoyment": see Pollock and Wright, An Essay On Possession In Common Law, Clarendon Press, Oxford 1888 p 13.
On the question of possession at law the learned authors observe at section 5.4, "To have the actual apparent power of preventing interference with a thing is different, and has to be distinguished, from having the power of such prevention attributed to one by law, so that the inter-meddler may be rightfully resisted at the time, or may afterwards be compelled by legal process to make reparation in some form. When the fact of control is coupled with a legal claim and right to exercise it in one's own name against the world at large, we have possession in law as well as in fact."
In the context of this case, that account is somewhat circular and the metaphysics of the nineteenth century are not broad enough to imagine twenty first century specie of wealth, or the potential application of fifteenth century remedies thereto. Indeed, the actions of detinue and conversion retain the feudal flavour of mediating competing rights to possession. But the central premise underpinning the common law concept of possession remains control, with an intent to exercise dominion; and in the case of crypto currency that is represented by the relevant key or PIN. Those exclusive signifiers, whilst data, are contemporary avatars of the various means by which the common law recognises and secures proprietary rights, whether that be by occupation or other devices by which dominion is claimed over entitlements to wealth.
[115]
This appeal began its life as an action in the Magistrates Court at Hobart which was heard by Magistrate R Webster.
The action arose out of an arrangement between the parties made in December 2013, whereby the appellant was, on behalf of the respondent, to invest the sum of $10,000 paid to the appellant by the respondent, in the digital currency Bitcoin. The magistrate held that the appellant did use the money to acquire a quantity of Bitcoin on behalf of the respondent, however a dispute arose as to a portion of the Bitcoin, together with other crypto currency derived from the Bitcoin, which the appellant retained as a claimed fee for his services.
The action pleaded a number of causes of action but only the claims in detinue and conversion were successful. The magistrate accepted that the appellant was entitled to a fee, however his Honour held that he was not entitled to claim a portion of the Bitcoin he had acquired for the respondent in order to satisfy that entitlement. The magistrate found that all of the cryptocurrency should have been returned to the respondent upon demand. He awarded damages (including exemplary damages and interest), limited to the monetary jurisdiction of the Magistrates Court, namely $50,000. Before interest and allowing a sum of $1,500 for the appellant's fee, the damages were $46,000.
The appellant appealed against the magistrate's decision pursuant to s 28 of the Magistrates Court (Civil Division) Act1992. The nature of such an appeal is as a rehearing conducted on the evidence before the magistrate (see Barnett v Tasmania Water and Sewage Corporation Pty Ltd[2018] TASFC 7).
The appeal was heard by Brett J (Poulton v Conrad[2025] TASSC 2). There were five grounds of appeal but only one was pursued before the learned primary judge, namely that the magistrate erred, "by finding at [94] of his reasons that the torts of detinue and conversion had been established on all the evidence".
[116]
"I can detect no error in the magistrate's determination of the claim in detinue and conversion. The sole ground of appeal has not been made out. Accordingly, the appeal is dismissed."
[117]
The appeal to this Court as set out in the appellant's notice of appeal, asserts that the learned primary judge:
[118]
"Erred in law or fact in finding at [32] that the Defendant was in possession of the bitcoin at all material times when bitcoin is intangible property and cannot be possessed and therefore erred in finding that the magistrate correctly found that the claims in detinue and conversion had been established."
[119]
As will be seen, paragraph [32] of the learned primary judge's reasons was in a section of his reasons dealing with the appellant's argument that the evidence established that it was actually the appellant's company, not him personally, that acquired and had possession of the disputed crypto currency at all relevant times, and in particular at the time that the respondent demanded its return. Accordingly, the argument was that as a matter of actual fact, the appellant did not have possession of the Bitcoin when demands where made for its return.
Paragraph [32] needs to be read in context and accordingly I set out his Honour's reasons from [30]-[33]. They read as follows:
[120]
"30 Both parties accept that the magistrate correctly recited the elements of both detinue and conversion in his reasons for judgment. It is also correct to observe that in the circumstances of this case, it was necessary for the respondent to establish that the appellant was in actual possession of the crypto currency when the demands for its return were made and refused by him. This is a primary element of the tort of detinue, and was conduct relied upon to establish the inconsistent dealing necessary to establish the tort of conversion. It is clear the magistrate proceeded on the basis that the appellant was in actual possession of the crypto currency at the relevant time.
[121]
There is no doubt that the evidence established that the $10,000 was paid into an account, which in actual fact was in the name of the company. However, the evidence also overwhelmingly established that it was the appellant personally who not only dealt with the respondent, but was also in actual control of the Bitcoin. In this regard, the proprietary nature of a person's interest in Crypto currency is important. The excludability of the asset and hence its value, arises from personal control of the wallet and private keys. As the magistrate observed, the conduct and communications of the appellant conveyed that it was he, personally, that exercised this control. He did not claim throughout the course of the relevant dealings that he was only doing so on behalf of the company. The mere fact that money went into and came out of an account in the name of the company does not change this reality. Further and in any event, the appellant confirmed in evidence that he was the alter ego of the company. There is no suggestion that anyone else was involved. The fact was confirmed by the appellant in his re-examination when he was asked by his counsel to explain his understanding of legal personalities. He replied:
[122]
"I presume because I was the sole shareholder of Get Paid in Bitcoin that .... me and Get Paid in Bitcoin is the same entity."
[123]
The nature of Bitcoin and the defendant's control over it makes it clear in my view that he was in possession of the relevant property at all material times. It is trite law that a person is in possession of property if that person has actual control of the property and an intention to possess it. See Pollock and Wright, an Essay on Possession in the Common Law, Clarendon Press Oxford 1888. In this case, I am satisfied that the appellant's relationship to the crypto currency in dispute satisfied those criteria.
[124]
33 Accordingly, I reject this argument." (Italics added.)
[125]
The appellant's notice of appeal might be said to be confined to the learned primary judge's determination of that one argument relying on the corporate veil. There is however, something of a problem with that because as already noted, his Honour observed at [6] of his reasons that the finding of the magistrate that Bitcoin amounted to property, for the purpose of the causes of action in detinue and conversion, was not challenged on the appeal, notwithstanding that he also found at [38], that he could detect no error in the magistrate's determination of the claim in detinue and conversion and that the sole ground of appeal had not been made out. In my view, given those findings, that sole ground of appeal could be taken as wide enough to embrace the appellant's present legal argument before this Court.
I can see however, that, notwithstanding the breadth of the notice of appeal, in view of the limited submissions before the learned primary judge, it might be argued that the appellant should be precluded from advancing the ground of appeal on which he now relies. However, s 47 of the Supreme Court Civil Procedure Act1932 provides, relevantly:
[126]
(1) Subject to the provisions of this Act, a Full Court, on the hearing of every appeal, shall have and may exercise all the jurisdiction, powers, and duties of the Court, whether as to amendment or otherwise, and shall have power to draw inferences of fact not inconsistent with the findings of the jury, if any, and to affirm, reverse, or vary, as to all or some or any one of the parties, any judgment, order, or determination appealed from, and to give any judgment or make any order or determination which ought to have been given or made, and to grant a new trial in any cause or matter in which there has been a trial (whether with or without a jury), and to make such further or other order as the case may require.
[127]
(2) On the hearing of every appeal from a judgment given, or an order or other determination made, by a judge sitting without a jury, a Full Court shall have full power to review the judgment, order, or determination appealed from on questions of fact as well as law.
[128]
(3) On the hearing of any appeal a Full Court, if it is satisfied that no injustice will thereby be done, may allow any party to raise any point of law which was not raised at the trial, and may determine the appeal on any such point." (Italics added.)
[129]
The respondent argues that there is significant injustice and prejudice to him in this ground of appeal now being raised for the first time. In particular, the respondent submits that he has been "denied the opportunity to conduct the magistrate's hearing and the appeal before Brett J around the issue of whether Bitcoin is capable of being possessed and what that means for the [r]espondent's claim".
I do not accept the respondent's submission.
In my view the question of whether Bitcoin is property for the purposes of the law of conversion and detinue is purely one of law. I cannot conceive of any further evidence or cross-examination at trial that could have affected that question. There is no injustice to the respondent that cannot be remedied by orders for costs. In the end result, given the view I have reached about the legal question there is no injustice to the respondent at all. Appropriate orders for costs will follow the event. The respondent's submission that had the appellant squarely raised the present legal question before the primary judge, the respondent might have cross-appealed against the magistrate's puzzling finding that the respondent's claim in contract failed for want of consideration, does not reveal prejudice. That could only have been a forensic decision based on the respondent's assessment of the appellant's prospects of success on the appeal as pursued by him.
[130]
So understood, and confined to the facts of this case, the question arising on this appeal is whether Bitcoin can be possessed for the purposes of the torts of conversion and detinue, and in particular, possessed by someone other than its owner.
The following description of Bitcoin was set out by the magistrate at [5]-[8] of his comprehensive, yet regrettably unpublished, reasons in Jeff Conrad v Adam Poulton [2023] TASMC:
[131]
Bitcoin is a cryptocurrency which first became available on financial markets in 2009. It is a virtual currency which is designed to act as money and a form of payment which is outside the control of any one person, group or entity such as banks or governments. There is therefore no third-party involvement in financial transactions. It is created, distributed, traded and stored using a decentralised ledger system known as a blockchain which is a shared database. It can be purchased on various cryptocurrency exchanges and can be used as payment for goods or services. One Bitcoin is divisible into a number of decimal places.
Data within the blockchain is secured by using encryption methods. When a transaction takes place on the blockchain, information from the previous block is copied to a new block with the new data, encrypted, and the transaction is verified by validators who are called miners. When a transaction is verified a new block is opened and a Bitcoin is created and given as reward to the miner who verified the data within the block.
To use Bitcoin you need to have a crypto currency wallet. Wallets hold the private keys, akin to a PIN, to the Bitcoin a person owns which needs to be entered when a transaction is being conducted. Wallets that are connected to the internet are referred to as hot wallets whereas wallets which are kept off-line are termed cold wallets. Usually cold wallets come in the form of hardware like a USB stick or it might be in the form of a paper wallet which is a piece of paper with the person's printed private keys and a public wallet address.
The price of Bitcoin can be highly volatile and can fluctuate in response to world events which may include political, macroeconomic or regulatory changes, e.g. a central bank's decision to raise or lower interest rates or declarations by governments on how they will treat Bitcoin for tax purposes. Market sentiment can also result in the price to fluctuate significantly."
Academics might argue that the definition above is somewhat simplistic, however in my view it is sufficient for present purposes (see Robert Stevens, "Crypto is not property" (2023) 139 L.Q.R. 615 and Hin Liu, ""
[132]
"[269] There may also be a distinction between digital assets and choses in action, as was argued before the Court of Appeal of England and Wales in Your Response Ltd v Datateam Business Media Ltd. It is unnecessary to consider the matter in detail, but suffice to say the issues of overlap between conversion and the economic torts that plagued the House of Lords in OGB Ltd v Allan do not cause any concern in the present context. In other words, it does not necessarily follow from extending the tort of conversion beyond the traditional divide of tangible property that choses in action such as contractual rights ought to be covered by the tort as well.
[133]
[270] Standing back, it seems obvious that digital assets should be afforded the protection of property law. They have all the characteristics of property and the conceptual difficulties appear to arise predominantly from the historical origins of our law of tangible property. There is a real difference between digital assets and the information they record. Such permanent records of information are already convertible when they take a physical form and it would be arbitrary to base the law on the form of the medium, especially now that digital media has assumed a ubiquitous role in modern life."
[134]
However, while his Honour accepted that there may be circumstances in which a person can be liable for converting digital assets, none of those circumstances apply to the defendant's conduct in the case and the plaintiff had therefore failed to make out the cause of action.
It is difficult to say that the relationship between the Bitcoin software and the right of a person with access to the key is a chose in action and it is equally difficult to say that, leaving aside cold wallets, that the relationship is a chose in possession.
The parties do not quarrel with the magistrate's adumbration of the elements of the two torts. His Honour said at [86]-[87] of his reasons:
[135]
"86 To establish a claim in detinue the claimant must prove the following:
[136]
the claimant must make a specific demand for the return of the goods on the person who has legal possession of them and the claimant's immediate right to possession must simultaneously subsist at the time the demand is made;
the claimant's demand must have been refused by the defendant; and
where the goods are in the actual possession of the defendant the refusal to return the goods to the claimant must be unreasonable.
[137]
87 To establish a claim in conversion the claimant must prove the following:
[138]
the claimant must establish a right to the immediate possession of the goods; and
the defendant has dealt with the goods in a manner which is inconsistent with the rights of the claimant coupled with an intention of denying the claimant's rights or asserting a right that is inconsistent with them."
"16 What, then, is the meaning to be given to s 7(1) and its provision that some fauna is the property of the Crown and under the control of the Fauna Authority? Did it, as the respondent submitted, give rights to the Crown in respect of fauna that were inconsistent with the rights and interests upon which the appellant relied?
[141]
The word 'property' is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, 'property' does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as power permissibly exercised over the thing. The concept of 'property' may be elusive. Usually it is treated as a 'bundle of rights'. But even this may have its limits as an analytical tool or accurate description, and it may be, as Professor Gray has said , that 'the ultimate fact about property is that it does not really exist: it is mere illusion'. Considering whether, or to what extent, there can be property in knowledge or information or property in human tissue may illustrate some of the difficulties in deciding what is meant by 'property' in a subject matter . So too, identifying the apparent circularity of reasoning from the availability of specific performance in protection of property rights in a chattel to the conclusion that the rights protected are proprietary may illustrate some of the limits to the use of 'property' as an analytical tool . No doubt the examples could be multiplied.
Nevertheless, as Professor Gray also says , 'An extensive frame of reference is created by the notion that 'property' consists primarily in control over access. Much of our false thinking about property stems from the residual perception that 'property' is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.'
'Property' is a term that can be, and is, applied to many different kinds of relationship with a subject matter. It is not 'a monolithic notion of standard content and invariable intensity'. That is why, in the context of a testator's will, 'property' has been said to be 'the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have'.
Because 'property" is a comprehensive term it can be used to describe all or any of very many different kinds of relationship between a person and a subject matter. To say that person A has property in item B invites the question what is the interest that A has in B? The statement that A has property in B will usually provoke further questions of classification. Is the interest real or personal? Is the item tangible or intangible? Is the interest legal or equitable? For present purposes, however, the important question is what interest in fauna was vested in the Crown when the Fauna Act provided that some fauna was 'the property of the Crown and under the control of the Fauna Authority'?" (Italics added.)
[142]
"56 Turning then to the relevant principles in relation to the granting of a proprietary injunction, the first and perhaps fundamental question that arises in relation to this claim for a proprietary injunction is whether or not in fact the Bitcoins, which are being held in this account of the second defendant with the third or fourth defendants are property at all. Prima facie there is a difficulty in treating Bitcoins and other crypto currencies as a form of property: they are neither chose in possession nor are they chose in action. They are not choses in possession because they are virtual, they are not tangible, they cannot be possessed. They are not choses in action because they do not embody any right capable of being enforced by action. That produces a difficulty because English law traditionally views property as being of only two kinds, choses in possession and choses in action. In Colonial Bank v Whinney[1885] 30 Ch D 261 [at 285] Fry LJ said:
[143]
'All personal things are either in possession or action. The law knows no tertium quid between the two.'
[144]
On that analysis Bitcoins and other crypto currencies could not be classified as a form of property, which would prevent them being the subject of a proprietary injunction or a freezing injunction. This exact issue has recently in November 2019 been the subject of detailed consideration by the UK Jurisdictional Task Force ('UKJT') which has published a legal statement on Crypto assets and Smart contracts, ('the Legal Statement'). The UKJT is chaired by Sir Geoffrey Vos, and Sir Antony Zacaroli is also a member. However, neither in their judicial capacity was responsible for the drafting of the legal statement, nor have either in their judicial capacities endorsed that legal statement. Indeed Sir Geoffrey Voss explained in the foreword to the Legal Statement: 'It is not my role as a judge nor that of the UKJT or its parent, the UK Lawtech Delivery Panel, to endorse the contents of the Legal Statement'. Those responsible for drafting the Legal Statement were Laurence Akka QC, David Quest QC, Matthew Lavy and Sam Goodman.
[145]
It follows that the legal statement is not in fact a statement of the law. Nevertheless, in my judgment, it is relevant to consider the analysis in that Legal Statement as to the proprietary status of crypto currencies because it is a detailed and careful consideration and, as I shall come on to, I consider that that analysis as to the proprietary status of crypto currencies is compelling and for the reasons identified therein should be adopted by this court.
[146]
The difficulty identified in treating crypto currencies in property, as I say, starts from the premise that the English law of property recognises no forms of property other than choses in possession and choses in action. As I have already identified, crypto currencies do not sit neatly within either category. However, on a more detailed analysis I consider that it is fallacious to proceed on the basis that the English law of property recognises no forms of property other than choses in possession and choses in action. The reasons for this are set out between paragraphs 71 to 84 in the Legal Statement:
[147]
'71 The Colonial Bank case concerned a dispute about shares deposited as security for a loan. The borrower was declared bankrupt and there was a contest for the shares between the plaintiff bank and the trustee in bankruptcy. The case was not about the scope of property generally: there was no dispute that the shares were property. The relevant question was rather whether they were things in action within the meaning of the Bankruptcy Act 1883, an issue of statutory interpretation. If so, then they were excluded from the bankrupt estate by section 44 of that Act.
[148]
Lindley LJ and Cotton LJ held that the shares were not things in action. They relied principally on previous case law where the court had come to a similar conclusion in relation to the predecessor statute, the Bankruptcy Act 1869. They also drew some support from sections 50(3) and 50(5) of the 1883 Act, which appeared to make a distinction between shares and things in action.
Fry LJ reached the opposite conclusion, reasoning principally from what he considered to be the essential nature of a share. A share constituted 'the right to receive certain benefits from a corporation, and to do certain acts as a member of that corporation' and was therefore, in his view, closely akin to a debt. He supported his conclusion by a comparison of shares to other, established, things in action, such as partnership interests and interests in funds.
Fry LJ's statement that "personal things" are either in possession or in action, and that there is no third category, may carry the logical implication that an intangible thing is not property if it is not a thing in action. It is not clear, however, whether Fry LJ intended that corollary and it should not in any case be regarded as part of the reasoning leading to his decision (and so binding in other cases). The question before him was whether the shares were things in action for the purpose of the Bankruptcy Act, not whether they were property, still less the scope of property generally.
Moreover, in making the statement Fry LJ attributed a very broad meaning to things in action. He approved a passage from Personal Property by Joshua Williams, which described things in action as a kind of residual category of property: "In modern times [sc. by the 19th century] ... several species of property have sprung up which were unknown to the common law ... For want of a better classification, these subjects of personal property are now usually spoken of as ... [things] in action. They are, in fact, personal property of an incorporeal nature...".
On appeal, the House of Lords also framed the question as one about statutory interpretation. They reversed the Court of Appeal's decision, approving the judgment and reasoning of Fry LJ. They did not explicitly address the issue of exhaustive classification between things in action and things in possession and said nothing about the definition of property. Lord Blackburn did say, however, that "in modern times lawyers have accurately or inaccurately used the phrase '[things] in action' as including all personal chattels that are not in possession". Thus, to the extent that the House of Lords agreed with Fry LJ on the classification issue, that seems to have been on the basis that the class of things in action could be extended to all intangible property (i.e. it was a residual class of all things not in possession) rather than on the basis that the class of intangible property should be restricted to rights that could be claimed or enforced by action.
[149]
"383 For the following reasons, I find that a person's interest in Bitcoin is property.
[150]
First, it is necessary to identify 'the thing'. The thing is Bitcoin. It is an electronic coin. It is data in the form of a unique digital address on a network of computers (also referred to as a shared public ledger). A public cryptographic key is generated that identifies the unique digital address on the shared public ledger. As observed by Gendell J in Ruscoe: 'the data allocated to one public key will not be confused with another'.[1] The identity of the holder of the public key is not public. Lord Justice Birss said in Tulip: '[t]he blockchain does not reveal the relationship between the digital addresses and any person'.[2] As a result, an interest in Bitcoin is identifiable but not the identity of the person who has the interest. A person must use a 'wallet', in the case of Bitcoin, a Bitcoin wallet, to obtain and access a public cryptographic key on the network.
Second, an interest in Bitcoin is also identifiable by third parties. I have already said that the public key identifies an address of Bitcoin at that address on the shared public ledger. A person has the power to control and deal with the Bitcoin and to exclude third parties from accessing or dealing with it. This is because a private cryptographic key is also generated. Both the public and private keys are required to deal with the Bitcoin. As observed by Gendall J in Ruscoe:
[151]
[112] A varied public key and a new private key for the cryptocurrency are generated after each transfer of cryptocurrency. The private key, in effect, is like a PIN. Anyone who learns of the private key attached to a public key can transfer the public key but the private key, having been used once in respect of the public key, cannot be used again.
[152]
[113] These features of cryptocurrencies inhibit two potential practices. First, the existence of the private key inhibits the possibility of involuntary transfers - it gives the power to exclude third parties from access. And secondly, the creation of a new private key after each transfer or disposition inhibits a holder from purporting to transfer the cryptocurrency data twice. [3]
[153]
Third, a person's interest in Bitcoin has a degree of permanence or stability. Bitcoin are recorded on the shared public ledger. As observed by Gendall J in Ruscoe, this contains the 'entire life history of a cryptocoin'.[4] Bitcoin are held at a certain digital address. Bitcoin remain stable at the address until there is a transaction concerning those Bitcoin. A transaction must involve the use of the public key and the private key. Upon a transaction concerning Bitcoin, the number of Bitcoin at the owner's address is reduced and the number of Bitcoin at the next owner's address is increased. This process involves the owner of the Bitcoin (the transferor) using their private key to digitally sign a hash which records the details of the transaction. This hash comprises a digital message which records the previous transactions by which the transferor initially received the Bitcoin as well as the public key of the new owner to whom the Bitcoin are to be allocated (the transferee). Upon verification by the Bitcoin network, this transaction record is added to the blockchain. The parties in this case referred to such a transaction as a 'transfer'. For convenience, I will refer to such a transaction as a 'Bitcoin transfer transaction' and I will refer to the Bitcoin transfer transaction taking place as a Bitcoin being 'transferred'. This does not involve the actual transfer of the person's interest in Bitcoin, but it is a convenient reference. Gendall J describes this process as involving one asset being replaced with another asset.[5] I agree.
Fourth, although a Bitcoin transfer transaction does not involve the 'transfer' of a person's interest in the Bitcoin, this does not mean that an interest in Bitcoin is not property. This is because alienability is not an indispensable attribute of property. Bitcoin are also the subject of very active trading markets, including cryptocurrency exchanges, throughout the world, including in Australia.[6]
Fifth, a person's interest in Bitcoin may be readily distinguished from a mere interest in information, including electronic data. This is because an interest in Bitcoin includes the power:
[154]
(a) to undertake transactions on a network by the use of a public key and a private key; and
[155]
(b) to exclude third parties from accessing or dealing with the Bitcoin.
[156]
As a result, I find that a person's interest in Bitcoin is property. It is not a chose in possession as it is intangible. It cannot be possessed. It is a chose in action. As I have already said, it is well established in Australia that a chose in action comprises a heterogeneous group of rights which have only one common characteristic in that they do not confer the present possession of a tangible object. That is the case with Bitcoin."
With respect, I agree entirely with the analysis by Attiwill J, but I regret I do not agree with his Honour's conclusion, which, in my respectful view, does not go far enough to meet the exigencies of the digital age and should not be followed as to the way in which Bitcoin should be characterised.
As Moore-Bick LJ said in Your Response Ltd (above), there is a powerful case for reconsidering the dichotomy between choses in possession and choses in action, and for recognising a third category of intangible property. Such a category in my view, would comprise property that is capable of assumption by third parties, that is rivalrous, that is capable of exclusive control, and that is susceptible of possession. As such it should be amenable to at least, the torts involved in the present case, namely, conversion and detinue. Bitcoin falls into such a category, and it should, in my view, be so regarded by this Court.
For competing academic views as to so regarding Bitcoin, see the discussions by Robert Stevens, "Crypto is not property" (above) and Hin Liu, "Crypto as property: a response to Professor Stevens" (above).
As to any precedential obstacle to the view I take, there is no decision that legally binds this court on the question of whether Bitcoin is amenable to the torts of conversion and detinue.
As to the decision in OBG Ltd (above), this Court, while treating decisions of the English House of Lords (as it was known), as highly persuasive, is not bound to follow those decisions. In Parker v The Queen[1963] HCA 14; 111 CLR 610 Dixon CJ said at p 630:
[157]
"In Stapleton v. The Queen[1952] HCA 56; (1952) 86 CLR 358 we said: "The introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous" (1952) 86 CLR, at p 365 . That was some years before the decision in Director of Public Prosecutions v. Smith(1961) AC 290 , which seems only too unfortunately to confirm the observation. I say too unfortunately for I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith's Case(1961) AC 290 I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept. I shall not discuss the case."
[158]
I conclude that the learned primary judge did not err in his determination that "the nature of Bitcoin and the defendant's control over it makes it clear in my view that [the appellant] was in possession of the relevant property at all material times".
I would dismiss the appeal.
[159]
I agree, for the reasons given by Shanahan CJ, that the appellant should be prohibited from agitating the appeal on the basis that Bitcoin is intangible property and cannot be possessed, given the diametrically opposed position that was taken before Brett J.
Should, however, there arise an occasion to consider the substance of the appeal on an alternate basis, I agree with the reasons given by Estcourt J and would concur with his conclusion that:
[160]
"... there is a powerful case for reconsidering the dichotomy between choses in possession and choses in action, and for recognising a third category of intangible property. Such a category in my view, would comprise property that is capable of assumption by third parties, that is rivalrous, that is capable of exclusive control, and that is susceptible of possession. As such it should be amenable to at least, the torts involved in the present case, namely, conversion and detinue. Bitcoin falls into such a category, and it should, in my view, be so regarded by this Court."
Appeal dismissed. No order altering the result below was made. The supplied judgment states that the respondent's costs would follow the event in Estcourt J's reasons.
The learned primary judge noted at [6] that the finding of the magistrate that Bitcoin amounted to property, for the purpose of the causes of action in detinue and conversion, was not challenged in the appeal. That was true, in the sense that the arguments made to his Honour did not raise the issue that because of its digital nature Bitcoin is intangible and thus not amenable to claims in conversion and detinue, however, as can be seen above, the ground of appeal itself could be taken as wide enough to embrace such an argument.
The magistrate held that Bitcoin constituted property which could be the subject of claims in conversion and detinue. In particular, he concluded at [83] that the relevant Bitcoin software "restricts control of a holding to the person in possession of the relevant private key or pin" and these holding rights "are definable, identifiable by third parties, capable of assumption by third parties and sufficiently stable to satisfy the test" in National Provincial Bank v Ainsworth[1965] UKHL 1; [1965] 1 AC 1175.
The appellant made three primary arguments to the learned primary judge in support of the sole ground of appeal. They were, that the respondent failed to plead a demand on 5 March 2018, that the appellant's dealings with the respondent were on behalf of the appellant's company and not him personally and, that if the appellant was entitled to retain 1.5 Bitcoin as his fee, then the respondent's claims in conversion and detinue must fail because the respondent was not entitled to immediate possession of the property.
The learned primary judge rejected each of those arguments and concluded:
Crypto as property: a response to Professor Stevens
In my view, it is obvious that when a person or entity creates an entitlement to Bitcoin and it is distributed and stored or traded, the person or entity who has the key to access the wallet is in control of the Bitcoin and can be properly, in law, be called its owner. To say that says nothing about whether the Bitcoin is a chose in action or a chose in possession, or some other as yet innominate digital asset. In the present case there is no issue as to the fact that the legal entity that was the owner of the Bitcoin was the appellant's company Get Paid in Bitcoin Pty Ltd, the identity of which the respondent was unaware.
The questions for this Court are whether that control equates to possession, whether that possession is of property amenable to the causes of action of conversion and detinue, and if so whether property can be possessed by anyone other than the company itself.
The evidence before the magistrate was that insofar as Bitcoin is concerned, there is a relationship between Bitcoin, which is the digital representation of value made up of three interconnected pieces of information, namely the Bitcoin address, the Bitcoin holding or balance in that address and the public and private key associated with the address, and the right ascribed to a person with access to the Bitcoin under the Bitcoin software and by the community of Bitcoin users, namely the capacity to trade a Bitcoin for other value or use it for payment.
Further, as noted by the magistrate at [83] of his Honour's reasons, Bitcoin rights involve "an inherent excludability" because the Bitcoin software restricts control of a holding to the person in possession of the relevant private key, Bitcoin software prescribes how the transfer and trade of Bitcoin can occur, and transactions are verified through the Bitcoin mining process.
There are a number of authorities in the United Kingdom, New Zealand and Australia which are set out in the magistrate's decision, which have decided that Bitcoin is property for various statutory purposes and for the purposes of proprietary injunctive relief, but none of them have decided that Bitcoin is property for the purposes of the torts of conversion and detinue.
The closest of them is Henderson v Walker[2019] NZHC 2184 where Thomas J was ready to extend the tort of conversion to purely personal digital information, including the content of private emails. In that case, having reviewed two English cases to which I will shortly refer, his Honour said:
For present purposes the "important question" is whether the relationship between the appellant's company and the Bitcoin software, signified by the company's control over the relevant digital key, was control that could be exercised by the appellant, and whether, as a result the appellant was in possession of property which was amenable to the torts of conversion and detinue.
In my view it was, and he was. He was, on the evidence, the only human agency able to interact with the Bitcoin software and thus in my view he possessed the property that it represented as at the date of the respondent's demand. His company's ownership of the Bitcoin at that time is not to the point.
I am reinforced in my view by, not only by the fact that Thomas J reached the same conclusion in Henderson v Walker (above) but also by the result reached by Bryan J in AA v Persons Unknown and Ors[2019] EWHC 3556, His Honour, at [56]-[61], relying on the authority of the UK Jurisdictional Task Force which, under the chairmanship of Sir Geoffrey Vos, the Master of the Rolls, had published a Legal Statement on Crypto assets and Smart contracts. Bryan J said as follows:
Our view is that Colonial Bank is not therefore to be treated as limiting the scope of what kinds of things can be property in law. If anything, it shows the ability of the common law to stretch traditional definitions and concepts to adapt to new business practices (in that case the development of shares in companies).
Colonial Bank was referred to in Allgemeine Versicherungs-Gesellschaft Helvetia v Administrator of German Property by Slesser LJ as showing "how the two conditions of [thing] in action and [thing] in possession are antithetical and how there is no middle term". Again, however, the case was not about the scope of property generally but about whether something that was undoubtedly property should be classified as a thing in possession or a thing in action.
Most recently, Colonial Bank was cited in 2014 in Your Response v Datateam. In that case, the claimant sought to assert a lien over a database in digital form but faced the obstacle of the previous decision of the House of Lords in OBG Ltd v Allan that there could be no claim in conversion for wrongful interference with a thing in action because it could not be possessed. In an attempt to distinguish the case from OBG, the claimant argued that, even if the database could not be regarded as a physical object, it was a form of intangible property different from a thing in action and so was capable of being possessed.
The Court of Appeal rejected the argument. Moore-Bick LJ said that Colonial Bank made it "very difficult to accept that the common law recognises the existence of intangible property other than [things] in action (apart from patents, which are subject to statutory classification), but even if it does, the decision in OBG Ltd v Allan[2007] UKHL 21; [2008] AC 1 prevents us from holding that property of that kind is susceptible of possession so that wrongful interference can constitute the tort of conversion." He said thatthere was "a powerful case for reconsidering the dichotomy between [things] in possession and [things] in action and recognising a third category of intangible property, which may also be susceptible of possession and therefore amenable to the tort of conversion" but the Court of Appeal could not do that because it was bound to follow the decision in OBG. The other members of the court agreed.
The Court of Appeal did not, and did not need to, go so far as to hold that intangible things other than things in action could never be property at all, only that they could not be the subject of certain remedies. The intangible thing with which they were concerned was a database, which (as Floyd LJ said) would not be regarded as property anyway because it was pure information. They did not have to consider intangible assets with the special characteristics possessed by cryptoassets.
In other cases, the courts have found no difficulty in treating novel kinds of intangible assets as property. Although some of those cases are concerned with the meaning of property in particular statutory contexts, there are at least two concerning property in general. In Dairy Swift v Dairywise Farms Ltd, the court held that a milk quota could be the subject of a trust; and in Armstrong v Winnington, the court held that an EU carbon emissions allowance could be the subject of a tracing claim as a form of 'other intangible property', even though it was neither a thing in possession nor a thing in action.
A number of important 20th century statutes define property in terms that assume that intangible property is not limited to things in action. The Theft Act 1968, the Proceeds of Crime Act2002, and the Fraud Act 2006 all define property as including things in action 'and other intangible property'. It might be said that those statutes are extending the definition of property for their own, special purposes, but they at least demonstrate that there is no conceptual difficulty in treating intangible things as property even if they may not be things in action. Moreover, the Patents Act 1977 goes further in providing, at s30, that a patent or application for a patent 'is personal property (without being a thing in action)'. That necessarily recognises that personal property can include things other than things in possession (which a patent clearly is not) and things in action.
We conclude that the fact that a cryptoasset might not be a thing in action on the narrower definition of that term does not in itself mean that it cannot be treated as property."
The conclusion that was expressed was that a crypto asset might not be a thing in action on a narrow definition of that term, but that does not mean that it cannot be treated as property. Essentially, and for the reasons identified in that legal statement, I consider that a crypto asset such as Bitcoin are property. They meet the four criteria set out in Lord Wilberforce's classic definition of property in National Provincial Bank v Ainsworth [1965] UKHL 1; [1965] 1 AC 1175 as being definable, identifiable by third parties, capable in their nature of assumption by third parties, and having some degree of permanence. That too, was the conclusion of the Singapore International Commercial Court in B2C2 Limited v Quoine PTC Limited [2019] SGHC (I) 03 [142].
There are also two English authorities to which my attention has been drawn where crypto currencies have been treated as property, albeit that those authorities do not consider the issue in depth. They are, and I have already mentioned them, in Vorotyntseva v Money -4 Limited t/a as Nebeus .com, the decision of Birss J, where he granted a worldwide freezing order in respect of a substantial quantity of Bitcoin and Ethereum, another virtual currency, and the case of Liam David Robertson, where Moulder J granted an asset preservation order over crypto currencies in that case.
In those circumstances and for the reasons I have given, as elaborated upon in the Legal Statement which I gratefully adopt as what I consider to be an accurate statement as to the position under English law, I am satisfied for the purpose of granting an interim injunction in the form of an interim proprietary injunction that crypto currencies are a form of property capable of being the subject of a proprietary injunction." (Italics added.)
In my view, this Court should not, in the light of the comments of Moore Bick LJ in Your Response Ltd v Datateam Business Media Ltd[2014] EWCA Civ 281; (2015) 1 QB 41, set out above, simply follow the decision of the House of Lords in OBG Ltd v Allan[2007] UKHL 21; [2008] AC 1. The decision in that case that there could be no claim in conversion for wrongful interference with a chose in action because it could not be possessed, is foreign to contemporary common sense and the reality of the digital world. Ritual incantations such as those of Fry LJ in Colonial Bank v Whinney[1885] 30 Ch D 261 [285], that "all personal things are either in possession or action" and "[t]he law knows no tertium quid between the two", no longer reflect today's commerce and intercourse.
In Re Blockchain Tech Pty Ltd[2024] VSC 690, Attiwill J was dealing with the question of whether an interest in Bitcoin may be subject of a bailment. His Honour went some way in meeting the view expressed by Moore Bick LJ in holding that an interest in Bitcoin is property, but his Honour found that such property is intangible, is not held in possession and cannot be the subject of a bailment. He said at [383]-[389]: