What "thing in action" means for custody, trusts and insolvency
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The classification is a conclusion of law
The practitioner should resist reading ByBit as a technical footnote, because the classification has consequences. A thing in action is the archetypal subject matter of an express trust. There is therefore no longer any doubt that a Singapore custodian can declare a trust over a customer's tokens or that a court can impose a constructive trust where tokens are stolen. A thing in action cannot be the object of the tort of conversion, which protects possession of tangible things. A victim whose coins are misappropriated therefore sues in equity for breach of trust or knowing receipt, and at common law for unjust enrichment and, where applicable, deceit. Janesh left the conversion point open and no later decision has revisited it.1 A thing in action also has no physical location, so its situs for conflict-of-laws purposes must be fixed by a rule of attribution, which the Singapore High Court has supplied by reference to the residence of the person who controls the private key (Chapter VIII).
Control as the organising fact
Across all four decisions the courts have treated control of the private key as the fact that identifies the owner. Lee Seiu Kin J described the owner of an NFT as whoever controls the linked wallet. Chua Lee Ming J in the Three Arrows litigation located the asset where the key-holder resides.2 This has a double edge, because control is evidence of title, which assists a claimant who holds the key, while control is also what a thief acquires. The law's recognition that the thief now "has" the asset is precisely why the victim needs a proprietary remedy to displace the thief's position. Singapore law, like English law, has never suggested that a thief acquires title. The constructive trust in ByBit arose at the moment of the fraud and left the exchange as "the legal and beneficial owner" throughout.3 The point reinforces the lesson of Part B, Chapter II. For a lawyer, the private key is the only fact that matters. Every custody arrangement must be analysed by asking who holds it.
Practice note
A client who holds crypto assets through a Singapore platform can now obtain from the courts the full range of proprietary remedies, but only if the facts support a proprietary claim. Three steps protect that position before any dispute arises. - Read the platform's terms to see whether they declare a trust, acknowledge that the customer remains beneficial owner, or state that the platform owns the coins and owes only a contractual obligation to return equivalent value. - Keep a dated record of deposits and of the platform's wallet addresses, because tracing begins with the claimant's own evidence. - Where sums are large, prefer a licensed custodian subject to the MAS segregation and trust requirements described in Part K, Chapter II. Those rules convert the private-law question into a regulatory obligation that the custodian must document and that an auditor must test.
Notes
- Janesh [2022] SGHC 264 at [77]–[78] (claims in conversion and contract as grounds for a proprietary injunction left undecided). The English position that conversion does not lie for intangibles is OBG Ltd v Allan [2007] UKHL 21. ↩
- Janesh [2022] SGHC 264 at [70]. Cheong Jun Yoong v Three Arrows Capital Ltd and others [2024] SGHC 21 at [59]–[63] (Chua Lee Ming J, 26 January 2024). ↩
- ByBit [2023] SGHC 199 at [44]. ↩
For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of October 2026.