The Full Court of an Australian State Supreme Court Speaks: Crypto is a Thing, Really!

In February this year, we issued a case note on Poulton v Conrad [2025] TASSC 2 in which we questioned the reasoning (but not the outcome) of the judgment of a single judge of the Supreme Court of the Australian State of Tasmania.

The reasoning in that case has effectively been upheld by the Full Court of the Supreme Court of Tasmania. The Full Court expressly refused to adopt the reasoning of the (then) House of Lords in OBG v Allan that only choses in possession could be converted or detained and opted to recognise a third class of intangible property capable of possession.

Absent the granting of special leave to appeal to the High Court of Australia and the reversal of this decision, it will be binding on lower courts in the State of Tasmania. In the Australian State of Victoria, the decision in Re Blockchain Tech Pty Ltd [2024] VSC 690 (which is to the opposite effect to the Full Court’s decision in Poulton v Conrad [2025] TASFC 7) will remain binding. In the other States and Territories, these two decisions are persuasive but non-binding, and the approach that will be taken remains unclear at this time. It is likely that this difference in opinion between the Supreme Courts of Victoria and Tasmania on a question of fundamental importance to the crypto and emerging technologies sector will lend itself to future determination by the High Court at some time in the future.

In the meantime, crypto businesses will need to review their terms and conditions to address the possible consequences of concepts like bailment (and similar concepts) applying to the legal relationships they have with their customers in relation to the custody of digital assets.

The Case

Poulton v Conrad [2025] TASFC 7

The Facts

As we noted in February this year, the facts were found to be as follows:

The plaintiff had become interested in investing in Bitcoin in 2013. At that time, the defendant was in the process of starting a business which included assisting clients to purchase Bitcoin.
The plaintiff paid A$10,000 to the defendant in December 2013 to enable the defendant to purchase Bitcoin on behalf of the plaintiff.
5 Bitcoin was attributed to the funds paid by the plaintiff. That Bitcoin was derived from Bitcoin purchases made by the defendant as well as from Bitcoin already owned by the defendant.
The parties had agreed that the plaintiff would pay a fee to the defendant. However, no agreement was reached as to the amount of that fee.
In July 2014, the defendant gave the plaintiff a Bitcoin wallet that only provided access to 6 Bitcoins, not 10.5.
In November or December 2017, the defendant transferred control of 3 more Bitcoins to the plaintiff.
This left the defendant in control of the following crypto assets claimed by the plaintiff:
- 1.5 Bitcoin
- 4.5 Bitcoin gold and 4.5 Bitcoin cash, both assets generated out of the plaintiff’s Bitcoin as a result of forking

In the Courts below

As we noted in February this year, the plaintiff brought proceedings before a magistrate. He succeeded in a claim of detinue and conversion in relation to the crypto assets claimed by him and was awarded damages, including exemplary damages. The magistrate allowed an offset of $1,500 against the damages on account of the fee due to the defendant. On appeal to a single judge of the Supreme Court of Tasmania, the defendant did not challenge the magistrate’s finding that Bitcoin amounted to property, for the purposes of the causes of action in detinue and conversion. Instead, the defendant argued that the crypto assets retained by him represented his fee. In the words of the Court: “the [defendant] asserted that it had always been understood by the [plaintiff] that the [defendant] would be entitled to a fee for his services. He claimed that although the quantification of the fee had been deferred, he and the [plaintiff] had eventually agreed that he would retain the relevant cryptocurrency as the fee. The magistrate rejected that there had been such an agreement but concluded that the respondent understood there would be a fee, and relied on expert evidence to assess a reasonable fee” [2025] TASSC 2 at paragraph 35. The single judge of the Supreme Court upheld the magistrate’s reasoning and conclusion.

The Full Court

The judgment of the Full Court was handed down on 19 September 2025.

Procedural grounds for dismissing appeal

Two of the three justices (Shanahan CJ and Jago J agreeing with his Honour) dismissed the appeal mainly on procedural grounds.

At trial before the single judge, the appellant had accepted the assumption that Bitcoin was capable of possession”—[2025] TASFC 7 at paragraph 33 per Shanahan CJ:

“It was implicit in the manner in which the appellant conducted the appeal before Brett J that bitcoin was property capable of immediate possession.”

On appeal, however, the appellant pleaded that “bitcoin is intangible property and cannot be possessed” and that therefore no conversion or detinue could be established. Their Honours held that the appellant should be barred from raising this argument, being “diametrically opposed” from the position advanced at trial before the single judge.

Substantive grounds for dismissing the appeal

Estcourt J

One justice (Estcourt J) dismissed the appeal in rejecting the appellant’s argument that Bitcoin could not be possessed and therefore subject to conversion or detinue.

His Honour declined to follow the House of Lords’ decision in OBG Ltd v Allan [2008] AC 1, which had held that only choses in possession were capable of being possessed and therefore converted or detained: [2025] TASFC 7 at paragraph 90.

His Honour agreed with Moore-Bick LJ in Your Response Ltd v Datateam Business Media Ltd (2015) 1 QB 41 that “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.” He concluded that Bitcoin fell in this third category of intangible property that is “capable of assumption by third parties, that is rivalrous, that is capable of exclusive control [and as such] amenable to at least, the torts …[of] conversion and detinue”—[2025] TASFC 7 at paragraph 93.

In so doing, his Honour disagreed with Attiwill J in Re Blockchain Tech Pty Ltd [2024] VSC 690, who had concluded that Bitcoin was a chose in action that could not be possessed—[2025] TASFC 7 at paragraph 92:

“With respect, I agree entirely with the analysis [of the features of Bitcoin] 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.”

Jago J

Jago J expressly agreed with the reasoning of Estcourt J on the substantive point that the torts of detinue and conversion could apply to the facts: [2025] TASFC 7 at paragraph 99.

Shanahan CJ

Shanahan CJ did not expressly adopt the reasoning of Estcourt J but separately concluded that the torts of detinue and conversion could apply to the facts—[2025] TASFC 7 at paragraph 55:

“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.”

What’s Next?

It is not clear whether the defendant (appellant) will consider it worthwhile to seek special leave to institute an appeal to the High Court of Australia. In considering whether to grant any special leave to appeal, the High Court will have regard to the criteria in section 35A of the Judiciary Act 1903 (Cth) as to:

whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
- that is of public importance; or
- in respect of which the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High court of the judgment to which the application relates.

Absent the granting of special leave to appeal to the High Court of Australia and the reversal of this decision, it will be binding on lower courts in Tasmania. The decision of Attiwill J in Re Blockchain Tech Pty Ltd will, at this stage, continue to bind the lower courts of Victoria. In the other States and Territories, these two decisions are persuasive but non-binding, and the approach to be taken remains unclear at this time.

It is likely that this difference in opinion between the Supreme Courts of Victoria and Tasmania on a question of fundamental importance to the crypto and emerging technologies sector will lend itself to future determination by the High Court at some time in the future. In the meantime, crypto businesses will need to review their terms and conditions to address the possible consequences of concepts like bailment (and similar concepts) applying to the legal relationships they have with their customers in relation to the custody of digital assets.

Queries

If you have any questions about this article, please get in touch with the author or any member of our Fintech, Privacy & Emerging Technologies team.

Disclaimer

This information is general in nature. It is intended to express the state of affairs as of the date of publication. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.

Fintech Privacy, Emerging Technologies

The Full Court of an Australian State Supreme Court Speaks: Crypto is a Thing, Really!

22 September 2025