¶ 401
Overview
Scope of the chapter. This chapter examines how the courts and legislatures of England and Wales and of the other principal common-law jurisdictions have characterized crypto-assets and other digital assets as objects of property. It begins with the traditional English framework, under which personal property was divided into things in possession and things in action, and the decisions that tested whether intangible assets outside those two classes could be property at all. It then follows the English case law from the first interim injunctions over bitcoin in 2018 and 2019 to the reasoned trial judgment on a dollar-referenced stablecoin in 2024, and the legislation that followed: the Law Commission's 2023 and 2024 reports and the Property (Digital Assets etc) Act 2025. The chapter then turns to New Zealand, Singapore, Hong Kong, Australia, Canada and the offshore financial centers, and closes with the consequences of characterization for trusts, custody and insolvency, and with guidance on the use of these authorities by lawyers practicing in the United States.
Why the comparative position matters. The United States position is treated in see infra ch. 3. American lawyers have practical reasons to know the Commonwealth decisions as well. First, much of the reasoned case law on whether a crypto-asset is property, and of what kind, comes from English, New Zealand, Singapore and Hong Kong courts. Those courts were asked the question directly, in proceedings for proprietary injunctions or for directions in the liquidation of an exchange, where the answer decided who took the assets. Second, the parties to digital-asset transactions, the exchanges and custodians that hold the assets and the wrongdoers who take them are frequently located outside the United States, and recovery proceedings are often brought in London, Singapore, Hong Kong or the British Virgin Islands. See infra ch. 25. Third, many trust instruments, custody agreements and fund documents that hold digital assets are governed by English law or by the law of a Commonwealth jurisdiction whose courts follow English authority. A lawyer who advises on those instruments must know what the governing law treats as property and what remedies follow.
The common question. In each jurisdiction the question has arisen in a similar form. A court is asked to grant a remedy that is available only in respect of property: a proprietary injunction, a declaration of trust, an order that a liquidator distribute assets to customers ahead of creditors, or a claim to trace stolen assets into the hands of a third party. The court must decide whether the asset in question is capable of being the object of property rights. If it is, the court must then decide what kind of property it is, because the remedies available depend on the category. A thing in possession can be the subject of a bailment, a possessory lien and an action in conversion; a thing in action can be assigned in equity and is enforced by action against the obligor; an asset that is neither may be property for some purposes and outside the possessory remedies for others. The answer to the first question has converged across the common-law world. The answer to the second has not.
The convergence on property. Every superior court in the common-law world that has decided the point has held, or accepted, that native crypto-assets such as bitcoin and ether, and dollar-referenced tokens such as USDT, are property. The English High Court so held in AA v Persons Unknown [2019] EWHC 3556 (Comm) and, after a trial, in D'Aloia v Persons Unknown Category A [2024] EWHC 2342 (Ch). The High Court of New Zealand so held in the liquidation of an exchange in Ruscoe v Cryptopia Ltd (in liq) [2020] NZHC 728. The Singapore High Court and the Hong Kong Court of First Instance reached the same result in ByBit Fintech Ltd v Ho Kai Xin [2023] SGHC 199 and Re Gatecoin Ltd [2023] HKCFI 914. For England and Wales and Northern Ireland, Parliament has confirmed that a thing is not prevented from being the object of personal property rights merely because it is neither a thing in possession nor a thing in action. Property (Digital Assets etc) Act 2025, c. 29, s. 1.
The divergence on category. The courts differ on the category. The English courts, the Law Commission and Parliament have taken the view that crypto-tokens are neither things in possession nor things in action, and belong to a further category of personal property whose incidents the courts will develop. The Singapore High Court in ByBit placed USDT within an expanded category of things in action. The Supreme Court of Victoria has held that bitcoin is property but cannot be possessed, while a majority of the Full Court of the Supreme Court of Tasmania expressed the view, in obiter dicta, that bitcoin falls within a category of intangible property capable of possession; the High Court of Australia granted special leave to appeal from the Tasmanian decision in February 2026. These differences matter for conversion, bailment, liens, security and insolvency. They are examined in ¶¶ 440, 460 and 470.
Characterization of custodial holdings. A second line of authority asks whether assets held by an exchange or custodian belong to the institution or to its customers. Ruscoe v Cryptopia held that the exchange held each type of crypto-asset on a separate express trust for the customers who held that type. Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 2 and Re Gatecoin held, on different terms of business, that no trust arose and the customers were unsecured creditors. The answer turned in each case on the terms and conditions and on the conduct of the business. These decisions are examined in ¶ 480, and their consequences in insolvency are treated in see infra chs. 10 and 27 to 28.
Method and citation. The chapter cites Commonwealth decisions by the neutral citation the court uses, and English statutes by chapter number. Where the editors have relied on another court's account of a decision, or on the reported commentary, the text says so. The chapter does not repeat the treatment of freezing orders, persons-unknown procedure and cross-border recovery, which appears in see infra ch. 25, or of situs and choice of law, which appears in see infra ch. 5. The taxonomy and vocabulary of the treatise are set out in see supra ch. 1.