Don King Martin t/a King Excursion & Transport Provider (UEN No. XXXXXXXXK) v Lenny Arjan Singh

Mr Don King Martin, sole proprietor of King Excursion & Transport Provider, bought a second-hand 2008 Toyota Hiace van on hire purchase in June 2016 for $68,880. The respondent, Mr Lenny Arjan Singh, was a friend living in Johor Bahru. On 1 February 2021 the respondent drove the van to locked premises at 57-J Jalan Serai, Johor Bahru, claiming a right to hold it because of money the appellant owed him under a loan. The District Judge found this was conversion, a finding not challenged on appeal. The van was never returned.

The appellant left Malaysia on 21 April 2021 and did not return until 24 March 2022. Meanwhile he obtained deregistration of the van and a COE rebate of $25,995. On 21 January 2022 Malaysian Customs raided the premises, found liquor with unpaid duty in the van and took it away. The appellant refused an offer to compound a customs offence, denying any offence, and had not recovered the van.

The District Judge held the conversion ended when Customs took the van, refused damages for its value, and awarded $20,600 for loss of use at $100 a day for 206 days up to deregistration. The appellant appealed in District Court Appeal No 24 of 2023, seeking the van's value and loss of use up to judgment.

1. Whether the appellant could recover the value of the van despite its later seizure by Malaysian Customs.
2. Whether the respondent's conversion caused the loss of the van and whether that loss was too remote.
3. Whether the appellant failed to mitigate his loss.
4. Whether damages for loss of use could also be awarded.

The court disagreed that the conversion ended with the Customs seizure. Following Aries Telecoms (M) Bhd v ViewQwest Pte Ltd, conversion ends only when the wrongdoer ceases to act inconsistently with the owner's rights and takes steps to let the owner recover the goods; losing possession through an outside event is not enough, and the respondent had done nothing to return the van. The real question was causation. But for the respondent keeping the van at the premises, the liquor would not have been found in it there and it would not have been seized. The suggestion that the appellant put the liquor there was conjecture; he was out of Malaysia for most of the period and the van was locked away. Relying on Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, the court held that someone who converts goods takes the risk of being unable to return them, even for reasons beyond his control. The loss was foreseeable, and recovery of the van was speculative.

On mitigation, the burden lay on the respondent, who had not pleaded what steps the appellant should have taken. Refusing to pay to compound an offence he denied was not unreasonable.

On value, the court rejected a 2022 online advertisement as evidence of market value and did not treat the 2016 purchase price as automatically the value. Weighing the van's age, its repair history in 2019, depreciation and the longer remaining COE term, it took $68,000. Full credit had to be given for the rebate.

Loss of use was refused: a user-principle award suits temporary deprivation and would duplicate the award for the van's value, and no consequential loss was proved.

Kristy Tan JC allowed the appeal in part. The court set aside the District Judge's award of $20,600 and substituted an award of $42,005, being the van's assessed value of $68,000 at the date of conversion less the COE rebate of $25,995. The claim for loss of use was disallowed, so the appellant recovered less than he sought.