From: Robert Stevens <robert.stevens@law.ox.ac.uk>

Sent: Monday 29 September 2025 06:14

To: Neil Foster; Obligations Discussion Group

Subject: RE: Conversion of Bitcoin

For those interested, I discussed the outcome of this appeal here, in a recent piece that responds to some of my (many) critics.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5536058

This result is predictable.

However, it isn't just wrongly decided. It is an abuse of the judicial function to add to the numerus clausus of rights exigible against all others in this way.

(We can get to the same result on the facts by saying that as the agent was a fiduciary, they should be accountable for the unauthorised profits they have made.)

Neil is too polite to say that although they cite my article (the earlier piece is here  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4416200 or in the LQR), they're only doing so to say I am wrong. I am not sure if that counts as impact for REF purposes.

Rob

From: Neil Foster <neil.foster@newcastle.edu.au>
Sent: 29 September 2025 02:21
To: Obligations Discussion Group <obligations@uwo.ca>
Subject: ODG: Conversion of Bitcoin

Dear Colleagues;

I have previously noted here a Tasmanian single judge decision which ruled on conversion of bitcoin. An appeal against that decision has now been handed down, in Poulton v Conrad [2025] TASSC 2 (19 September 2025). Formally the appeal was dismissed because two of the members of the court said that the question whether bitcoin (as intangible property) could be the subject of a possessory action like conversion, had not been fully argued before the trial judge. But Estcourt J says that the issue should be considered, and his Honour concludes that indeed bitcoin can be subject of a conversion action. The discussion on the substantive issues starts at para [74]  and concludes as follows:

[90] 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 (2015) 1 QB 41, set out above, simply follow the decision of the House of Lords in OBG Ltd v Allan [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.

The other members of the court formally refuse to consider the issue, but express their general agreement with Estcourt J s discussion of the issue. His Honour cites our ODG list colleague Rob Stevens and a response to Rob written by Hin Liu.

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

 The University of Newcastle
Hunter St & Auckland St, Newcastle NSW 2300

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

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

My publications: http://ssrn.com/author=504828

Blog: https://lawandreligionaustralia.blog

I acknowledge the Traditional Custodians of the land in which the University resides and pay my respect to Elders past and present.
I extend this acknowledgement to the Worimi and Awabakal people of the land in which the Newcastle City campus resides and which I work.

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