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Homeless and Lost BMW

Discussion in 'Property Law Forum' started by haiqu, 12 June 2014.

  1. haiqu

    haiqu Well-Known Member

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    In November 2011 I became homeless, and needed somewhere to store a vehicle (BMW 750i) that was under restoration. A young mechanic friend offered to keep it in his carport for up to 12 months.

    I traveled from Victoria to Queensland seeking work, and to visit my sick father, then returned to Melbourne in January 2012. At that time the friend offered to buy the car and we agreed on a price of $4000 and since he had been so kind as to store the vehicle I also offered him time to pay it off. I also stated uncategorically that I needed regular payments, since I was still fairly broke. I then did a Heavy Combination (i.e. semi-trailer) driving course and left Melbourne in May 2012 seeking work in the seasonal sugar cane haul.

    After receiving no payments for 12 months I threatened legal action in Feb 2013, to which my "friend" replied that he had spent a fortune on the car, that it had had an electrical fire and been destroyed, and that he had called a wrecker and sold it to them around April 2012 "at no profit to him." He would not provide the name of the wrecker, and contact with police revelead that, because the vehicle had never been registered in my name, they could not puruse the matter.

    I also find that VCAT do not handle such cases, and that I will need to employ a lawyer to recover my money in court.

    Questions follow:

    1. What are the likely costs to pursue this, given that the mechanic friend's address and job are no longer known to me, and that he will need to be found first in order to serve papers?
    2. What are the likely results of such a case, given that - as I now discover - he has a habit of wrecking other people's vehicles and taking zero responsibility?
     
  2. John R

    John R Well-Known Member

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    Hi haiqu,
    1. Did you have a written agreement with your young mechanic friend?
    2. Have you sent your young mechanic friend a Letter of Demand (or similar) demanding payment of the outstanding/agreed amount?
     
  3. haiqu

    haiqu Well-Known Member

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    1. Verbal contract which he acknowledges, and lots of witnesses.
    2. How? I no longer have his street address, as stated above. He moved house and jobs about 5 times since this happened.

    I take it you wouldn't count SMS or Facebook logs as usable evidence.
     
  4. John R

    John R Well-Known Member

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    Hi haiqu,
    If you don't have the young mechanic friend's physical contact address, you may still consider sending a letter of demand via Facebook messaging (which, similar to sending a letter via registered post, would generally provide an acknowledgement when the letter had been read) and/or SMS.

    SMS and Facebook messages are generally considered electronic evidence. Please see recent thread on "Facebook posts as evidence".

    Hope this helps!
     
  5. haiqu

    haiqu Well-Known Member

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    Actually no, it doesn't. The friend dumped me off Facebook in Feb 2013 after I made the legal threat.

    I also fail to see an answer to the questions in my original post, or the relevance of a letter of demand.
     
  6. John R

    John R Well-Known Member

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    Hi haiqu,
    The ArtsLaw website on "Debt Recovery of Small Claims in Victoria" sets out why a letter of demand may be relevant.
    The ArtsLaw website also sets out the procedure for starting a proceeding in the Magistrates Court of Victoria for a non-consumer/trader debt of less than $10,000.

    1. Costs vary significantly. That said, as a rule of thumb, most businesses write-off debts of ~$2,000 because legal fees quickly reach that amount so if the dispute is only $4,000 and there's no guarantee of success/full payment of debt, you would want to monitor and manage your costs carefully.
    2. Order 6 of the Magistrates Court General Civil Procedure Rules 2010 (Vic) sets out the rules for serving documents, including the use of substituted service, where it may be difficult to serve legal documents personally.
    You should formally engage a lawyer to advise on your specific circumstances. That said, from a practical perspective, if multiple parties are chasing the one person to repay debt or pay for damages, it may reduce the probability of you being repaid.

    Hope this helps!
     
  7. haiqu

    haiqu Well-Known Member

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    Thanks for the references, very useful stuff.

    Yes. That pretty much sums up my thoughts on the matter: - marginal at best to pursue him.

    I know of an ex-employer who lost a customer's car when it was crashed while being taken for a joyride by said friend. Perhaps we could get together and share legal expenses by combining the cases. He's owed $6,500 and has already been to court once to recover it.

    One final question: Is there any time limit on taking such a case to court? I have another, much older, instance where a driver who did a U-turn in front of my car and effectively totalled it refused to put it through his insurance. He did get a letter of demand, by registered mail, but ignored it.
     
  8. haiqu

    haiqu Well-Known Member

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    The reference pages answered that question. Generally, 6 years. Thanks for your help!
     
  9. haiqu

    haiqu Well-Known Member

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    Looking back through Facebook logs, I did in fact make a demand for full payment before my friend deleted me. Now I need to figure out how to send him a court summons. :-/
     
  10. John R

    John R Well-Known Member

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    Yes, the old statute of limitations. Glad to have helped! ;)
     
    rebeccag likes this.

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