From:                                         Neil Foster <neil.foster@newcastle.edu.au>

Sent:                                           Thursday 13 February 2025 04:19

To:                                               Lucas Clover Alcolea; Kelvin F.K. Low

Cc:                                               Wilde, Mark; Steve Hedley; obligations@uwo.ca; Daniel Seng

Subject:                                     Re: Bitcoin and Restitution

 

Dear Colleagues;

Since this post is about bitcoin… I would not usually post a single judge decision but those who are interested in this area may be interested to read this decision handed down recently in Tasmania: Poulton v Conrad [2025] TASSC 2 (7 February 2025). Appellant was given some money to buy Bitcoin for the respondent, agreed he would be paid for his services but the amount not settled. Later the appellant claimed that he should be entitled to keep one of the Bitcoins by way of payment (it had gone up in value since purchased). The respondent succeeds in a claim for conversion and detinue of the Bitcoin.

I have to say I think the decision is wrong. Even if we concede that Bitcoin is “property” (see [6]), we have clear authority in Australia that conversion is not available for intangible property. See eg Joukhador v Commissioner of Police [2020] NSWSC 227 at [55]; Chandrasekaran v Commonwealth of Australia [2021] FCA 481at [25]. (And of course the decision in OBG Ltd v Allan [2007] UKHL 21, [2007] 2 WLR 920 though that is not binding in Australia.)

But it seems neither counsel nor the judge were aware of the authority.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor, Newcastle School of Law and Justice

College of Human and Social Futures

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

Further details: http://www.newcastle.edu.au/profile/neil-foster

My publications: http://works.bepress.com/neil_foster/ , http://ssrn.com/author=504828 

Blog: https://lawandreligionaustralia.blog

 

 

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From: Lucas Clover Alcolea <lucas.cloveralcolea@monash.edu>
Date: Thursday, 13 February 2025 at 12:42 pm
To: Kelvin F.K. Low <kelvin.low@gmail.com>
Cc: Wilde, Mark <Mark.Wilde@city.ac.uk>, Steve Hedley <S.Hedley@ucc.ie>, obligations@uwo.ca <obligations@uwo.ca>, Daniel Seng <danielseng@nus.edu.sg>
Subject: Re: Bitcoin and Restitution

True enough, however some bank transfers are in fact instantaneous, or close to it, hence why banks in some places now pause payment to new payees or display warning language (though realistically this is less about protecting customers and more about not getting sued).

 

Completely agree re the rubbish dump, also not sure if someone has mentioned it but I read somewhere he is now looking at buying it instead as it's being closed down https://www.theguardian.com/technology/2025/feb/10/man-who-lost-bitcoin-fortune-in-welsh-tip-explores-purchase-of-entire-landfill?CMP=Share_iOSApp_Other You can be sure that when that fails, further litigation will occur. It's truly the gift that keeps giving 😂

 

All the best,

Lucas 

 

On Thu, 13 Feb 2025, 11:34 Kelvin F.K. Low, <kelvin.low@gmail.com> wrote:

Yes, re scammers, you're mostly right. Though because intermediaries exist (banks), it is possible to allocate losses to them instead of the end consumer, which some jurisdictions do in relation to authorised push payment frauds. Also, again because banks exist and transfers are not instantaneous, it is possible to freeze transfers pending investigations, all impossible in the brave new crypto world - one of the reasons, I suspect, despite the advertising, intermediaries are everywhere in crypto. So whilst there are certainly similarities, crypto is an easier system for fraudsters to exploit. 

 

But one thing is clear, no one would be suing their local councils to dig up a rubbish tip to recover their banking password. 

 

Kelvin

 

Sent from Outlook for Android

From: Lucas Clover Alcolea <lucas.cloveralcolea@monash.edu>
Sent: Thursday, February 13, 2025 9:27:41 AM
To: Kelvin F.K. Low <kelvin.low@gmail.com>
Cc: Wilde, Mark <Mark.Wilde@city.ac.uk>; Steve Hedley <S.Hedley@ucc.ie>; obligations@uwo.ca <obligations@uwo.ca>; Daniel Seng <danielseng@nus.edu.sg>
Subject: Re: Bitcoin and Restitution

 

For sure, you can get a new password fairly easily (though with 2FA it is a little more complicated, particularly if you change your phone number and/or phone itself) but the issue of keeping copies, using the same password and weakening etc are what I was getting at. Certainly storing passwords and even credit card data across multiple websites, often with the same password, is not uncommon and creates multiple points of weakness either through hacking of the whole website (we've all seen several examples each year) or someone specifically targeting you. The issues with scammers etc are also endemic. 

 

-Lucas

 

On Thu, 13 Feb 2025, 11:20 Kelvin F.K. Low, <kelvin.low@gmail.com> wrote:

Actually, that's not quite true. If you lose your banking password, the bank can allow you to create a new one once you prove your identity. This is not possible with asymmetric cryptography where private key and public key are a mathematically linked pair. I expect this is one of the reasons why asymmetric cryptography - invented in the 1970s - was never applied to consumer banking in the sense of asking consumers to safeguard their private keys.

 

Kelvin

 

From: Lucas Clover Alcolea <lucas.cloveralcolea@monash.edu>
Sent: Thursday, February 13, 2025 9:14:46 AM
To: Kelvin F.K. Low <kelvin.low@gmail.com>
Cc: Wilde, Mark <Mark.Wilde@city.ac.uk>; Steve Hedley <S.Hedley@ucc.ie>; obligations@uwo.ca <obligations@uwo.ca>; Daniel Seng <danielseng@nus.edu.sg>
Subject: Re: Bitcoin and Restitution

 

In fairness that's the same with everything electronic, it's not unique to crypto (although total inability to access funds because you forgot your code/seed etc is). Take online banking, do you use a different password for each site or the same password everywhere? Or do you use a password that Google makes up for you but which is stored on your Google account (that also needs password, taking you back to square 1)? Do you write your password or pin down or tell someone (usually no, but could be an issue for people with bad memories etc)? 2FA doesn't necessarily solve these problems, and can also cause others, for example if you change your phone number or lose your phone (let's say it's stolen, as that will also raise the problems discussed above) it will be a pain to get access again. Moreover, text messages etc can be spoofed. Biometric security can likewise be overridenn easily through coercion or deceit. The constant arms race between banks/regulators and scammers is another example, the easier it is to bank electronically, and in particular if you start linking your bank account to other apps as you now can in some countries, the easier it is to get scammed or defrauded. Electronic banking can't be stopped altogether however, so instead banks use 2FA or pause transfers to a new account etc, but then scammers spoof 2FA or pretend to be your bank alerting you to a scam etc... 

 

All the best,

Lucas

On Thu, 13 Feb 2025, 11:02 Kelvin F.K. Low, <kelvin.low@gmail.com> wrote:

Not ironic at all since all of our virtual world, whether digital files in the metaphorical cloud or this crypto nonsense is very much rooted in the physical world. Everything is on some hard disk somewhere and transmitted through some sort of cable for the most part, something Daniel Seng (NUS) and I emphasise in a forthcoming article for LIT: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4308631. 

 

If multiple copies exist, then this sort of situation (where you have to dig up your private key stored on a hard drive) will be less of an issue since in the tech lingo, there won't be a single point of failure. But of course, then you run into a different problem (in the crypto context) - thieves now have multiple hard drives to steal. So you avoid having a single point of failure for accidental loss by creating multiple points of failure for theft? This is the future of finance? 🙄

 

Kelvin 

 

Sent from Outlook for Android

From: Wilde, Mark <Mark.Wilde@city.ac.uk>
Sent: Wednesday, February 12, 2025 6:19:34 PM
To: Steve Hedley <S.Hedley@ucc.ie>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Bitcoin and Restitution

 

Somewhat ironic that something which is the epitome of our virtual brave new world ends up having to be dug up like buried treasure!

 

Mark

 

 

From: Steve Hedley <S.Hedley@ucc.ie>
Sent: Tuesday, February 11, 2025 6:50 PM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Bitcoin and Restitution

 

CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you recognise the sender and believe the content to be safe.

 

A postscript to Howells v Newport City Council, recently discussed in this forum.  As the article notes, the case is under appeal.

 

Man who binned 7,500 Bitcoin drive now wants to buy entire landfill to dig it up (The Register, 11/2/25)

 

 

 

 

From: Samuel Beswick <sbeswick@sjd.law.harvard.edu>
Sent: Friday 10 January 2025 21:28
To: Robert Stevens <robert.stevens@law.ox.ac.uk>
Cc: obligations@uwo.ca
Subject: Re: Bitcoin and Restitution

 

[EXTERNAL] This email was sent from outside of UCC.

It also has a third thing, which I am interested in: the claimant's "desperate argument" to extend time for filing suit in reliance on section 32 of the Limitation Act 1980. There's been a flurry of case law on limitation discoverability over the past four years which I canvas in the next LMCLQ issue. The court here properly dismissed that argument.

 

On Thu, 9 Jan 2025 at 06:09, Robert Stevens <robert.stevens@law.ox.ac.uk> wrote:

An amusing case, combining two of the things I am interested in.

 

https://www.bailii.org/ew/cases/EWHC/Ch/2025/22.html

 

The claimant, by mistake, in 2013 deposits a hard drive containing the key to his Bitcoin wallet in a landfill site in Newport. Claims that the Bitcoin now worth in excess of £600m (more than the value of the landfill site. Or, indeed, Newport.)

 

Seeks a declaration that either the council digs up the site to find it, or allows his team of experts to do so.

 

Claim is struck out. Lots of “proprietary restitutionary” stuff.

 

Rob