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NSW Friend Sold Borrowed PA System - Recovery Action?

Discussion in 'Criminal Law Forum' started by rickh2677, 13 April 2015.

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  1. rickh2677

    rickh2677 Member

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    Hi, I lent my PA system to a so-called friend, who I have just found out sold it without my knowledge. Could someone please tell me the steps I need to take to recover my property?

    Thank you in advance.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Rickh2677,

    1. Do you have any evidence to prove that the PA system sold is yours? (e.g. receipts, bar code number, photographs and unique markings on the system)

    2. Write a letter to the buyer informing them that the PA system is your property and you did not give the seller power to sell the system. Request the system be returned to you. The buyer will then have an action against the seller for return of the purchase money (action in misrepresentation or breach of contract)

    3. If the buyer refuses to return the goods, you have an action in tort (detinue), which is a private property offence, against the buyer. This essentially means that the buyer is in possession of goods (the PA system) which belong to you (i.e. you have better claim to the goods, being the true owner) and they refuse to redeliver the goods. If this fails, or concurrently, you also have an action in tort (conversion), another private property offence, against the seller (the friend to whom you loaned the goods), for selling something that belonged to you without your consent. If successful, you will receive either the PA system back (from the buyer) or payment of the value of the PA system (from the seller). To be successful, you need to have evidence showing that (i) you are the true owner of the PA system; and (ii) someone sold your PA system without your consent; and (iii) that someone was the seller, or the buyer now has your PA system.

    Depending on the cost of the PA system, the action will likely be heard in the small claims court in NSW.
     
    Tim W likes this.
  3. Rod

    Rod Well-Known Member

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    Does this apply though if the buyer proves he paid a 'reasonable' price in good faith for the goods from a third party? If the buyer proves his case, I believe the goods stay with the buyer.

    If this is the case then the only action that works is to sue the seller as you mentioned.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Rod,

    That is true. If the buyer was an innocent third party that did not suspect that the goods were stolen, then the court will need to balance the costs incurred by two innocent parties (original owner and buyer), in this case, the court may allow the buyer to keep the goods. However, upon becoming aware that the goods were stolen (or sold without consent of the original owner) the buyer should return the goods to the original owner and seek compensation (purchase price) from the original seller. If Rickh2677 writes the letter to the buyer and provides evidence the PA system belongs to him/her then the buyer will have knowledge and the correct thing to do would be to give it back. In this case, it may be good to sue both seller and buyer (as co-defendants), depending on whether Rickh2677 wants that particular PA system back or equal compensation.
     
  5. rickh2677

    rickh2677 Member

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    Hello Sarah
    Thank you for replying. To clarify:-
    I have the receipts for both the mixing console and powered speakers. I also have photographs of the system. It's value is around $3,000.
    I hired a PI to track him down and now have a current address for him.
    I will write him the letter you suggested saying I am the rightful owner of the property and did not give him permission to sell it.

    Regards
    Rick
     
    Sarah J likes this.
  6. Tim W

    Tim W Lawyer

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    I agree with @Sarah J that this is a detinue matter.

    Before you write any letters, decide what you want to have happen.
    It will be either receive money (from your so-called friend)
    to buy replacement equipment, or, get the actual hardware back.

    The former may be much easier to achieve than the latter.
     
    Sarah J likes this.

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