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VIC Possession Of My Property

Discussion in 'Property Law Forum' started by Shea Harrison, 18 September 2014.

  1. Shea Harrison

    Shea Harrison Active Member

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    I Sincerely apologise for the lengthy information I am providing you, I would consider more accurate and detailed answers for you knowing all the facts.

    I am currently on disability payments from Centrelink following a work accident in 2009.

    I cannot work due to my injuries and have been assets by a leading Surgeon as permanent impairment; I have received no financial assistance from my employer.

    As well as physical injuries I am also suffering from mental illnesses caused from the accident and the 5 yrs I have been struggling to cope with the life changes it has created, the main mental illnesses I have been diagnosed with are PTSD, major depression, stress, ASP disorder, ADHD/ADD, Anxiety Disorder, APD, and a few others, I have also had over 10 severe mental breakdowns and have attempted to take my own life on 3 occasions as well as self harm.

    In 2012 my relationship ended as a result of my partner suppling Alcohol to Children that we in our care and within the property we were residing, she then and then placing their life’s at risk of injury and a situation that could have resulted in any of those Children losing their life.

    And as I have been a former Kindergarten Teacher and a Children’s Services employee; not only did I completely disapproved drinking with and serving minors Alcohol, it was her negligent behaviour and her complete disregard of understanding of possible legal and criminal consequences she would be facing. This was something I could not accept from a partner nor wanted to continue a relationship with.

    I told her I would be ending our relationship as a result, she then became extremely hostile and aggressive towards me and insisted I “Get out of the house immediately”

    As she was the only one named on the rental lease agreement of those premises, she confronted me over the next few days and also requested Police to attend.

    The Police who attended did not instruct me to leave as no crime or offence had been committed, but asks me if it was possible to somewhere else that night due to me being the only one in a clam and reasonable state of mind. And I agreed to their suggestion.

    The following day I was confronted in threatening manner by (who was now) my ex partner, but also from members of her family and I subsequently left the premises. At that time of vacating the premises I also had insufficient funds available to either collect my belongings and property, but also to financially accommodate the storage cost fees because there was limited space at the premises I was staying.

    At the time of leaving the premises’ I could only collect a small back-pack of clothes, and while I was collecting personal items my ex partner accessed my back-pack and removed 2 keys from my own set of keys . (The Keys she took were for Ducati Motorcycle owned by myself and a Key to the Holden Commodore I also owned) Both Vehicles are solely owned by myself and also receipted in my name and without outstanding finance owing; they are also registered and Insured in my name

    I have requested from my previous partner the return of all my property and belongings on numerous occasions not only because I own the property and it should be returned to it ‘s rightful owner, and because of physical injuries I had requiring comfort and rest.

    I had no furniture at all and could not afford at that time to replace any items needed, I was to go without a bed or bedding, a Lounge (or anything to sit on), no furniture at all, no fridge, cooking items, no crockery or cutlery.... I had absolutely nothing!

    I had explained to my ex-partner why it was imperative I have my furniture as it would greatly assist in my comfort of living and relaxed it would also assist in my recovery.

    I have and further surgery to follow on my spine and (L) shoulder.

    Regardless of my injuries I had, the unsettled environment I was in or the distress having none of my property in my possession, I seemed to make no difference to my ex- partner.

    There has been (3) prior arrangements made and agreed by both parties for the collection of all my property, and on all (3) occasions my ex-partner has broken the agreement and refused to allow me to collect anything as soon as I arrived at her premises.

    I have also been extremely clear with my ex-partner that she has no legal right to withhold my property and she also has no joint ownership regarding any of the property I requested.

    All property of mine had been purchased and owned myself prior to our relationship.

    Her claim to holding my property is an amount of $10,000 she gave me to purchase a car, as she wanted me in a newer safer car and because she would use the vehicle and her Daughter would also be travelling in. It was not a loan and was never stated to be a loan.

    Even when I questioned her on did she expect me to pay it back, she only repeated 'Just take it. Three weeks after I have left the premises was the first time I heard her referrer to the monies she gave me as 'A Loan'. My ex-partner never referred giving me as a loan until I ended the relationship.

    My ex-partner is still in possession of all my personal property, furniture and house hold items and my Ducati Motorcycle and will not release them. (Total amount of property $63,000)

    The other matter I have with my ex-partner is we both a co-signed a personal loan in the amount of $20,000 and $16,500 was used to purchase my Ducati Motorcycle, and she wants her name taken off the loan.

    The only way for that to occur is for me to pay-out the loan which again I am not in a financial position to do so, I was the only one making all the monthly re-payments due to the purchase of the Ducati.

    I ceased my monthly re-payments to the bank a few months ago, because I was frustrated and angry that I was paying something off that wasn’t in my possession.

    To try and recover all of my property my Mother gave me a bank cheque in the amount of $10,000 to give to my ex-partner, as I was desperately in need of my property and belongings.

    I made arrangements with her to collect everything and I booked a removal truck and transport van (For the Motorcycle) for that day, I contacted the Police to attend as to assure there would be no disputes.

    My ex-partner demanded I give her the cheque prior to the collection of my property and as I was legally informed not to give it to her until all my items were loaded in the truck, she refused and nothing was taken. Even asking a Police member to hold the cheque (which he did) and give it to her after everything of my was loaded, was still refused and she remained un-cooperative.

    Because of my situation with health and other matters resulting in me not working, I contacted Legal Aid to assist me in obtaining my items, and unfortunately they could not assist.

    I then went to 6 different Community Law centres explaining my case and situation, and the enormous impact it was having on myself and my health in a negative way, and once again they explained that they could not assist me.

    I have then sort legal representation from 5 different law firms constantly requesting and pleading with them of a payment option they could put in place, so I could afford to have legal matters progress, I would not fall into financial hardship, my health issues and the income I was receiving could be taken into consideration.

    And I had the same out come with each law firm, they will represent me and get my property back although they require $2000.00 - $4000.00 placed into their trust fund prior to commencing, which I obviously do not have and cannot afford.

    They would also represent me is the matter was taken before a magistrates if my x-partner was not willing to cooperating with a letter of demand.

    I asked all law firms if I could pay-off their legal fees or create a legal payment plan I would honour. I was told in no uncertainty terms they could not help me.

    I will be attending a meeting with her solicitor in the near future as my ex-partner has indicated a possible settlement, and I will be representing myself.

    If no settlement can be reached I then plan on taking her to the magistrate’s court.

    Question 1: What law does retaining my property fall under?

    Question 2: If the meeting with her solicitor to attempt a settlement between both parties is not achieved, what would be the Legal term in me taking her to the Magistrate’s Court?

    Question 2: As the Motorcycle is a Vehicle solely owned, registered and insured in my name (and is not financed in either name nor has any financial amount owning) How do I obtain the Bike back in possession?

    Question 4: I understand the Police cannot and will not get involved in property disputes, why couldn’t they at least recover the spare keys to my Car? As she or any associates of hers could gain access to my car. (As it has already taken place, and was moved 6 blocks away)
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Shea,

    1. Make a list of all the items currently in your ex partner's possession which you would like returned.
    2. Write a letter requesting the return of these items by X date and send to your ex partner (an email should also suffice, or both).
    3. If the negotiations fails with your ex partner's solicitor, you may recover the items at VCAT.
    4. Obtain possession by enforcing a VCAT decision.

    Police will not generally get involved as this is still a civil dispute.

    How long have you been with your ex partner? For long-term de facto relationships, there may be property division issues similar to that of a married couple. You may need to look into that.
     
  3. Shea Harrison

    Shea Harrison Active Member

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    Hi Sarah,

    Thank you for your reply to my situation.

    *Yes I have made a detailed list of all my property at her residence and she has also acknowledged the list of property submitted to Lawyers is solely my property.
    *She has had 4 letters of demand sent to her for the return of my property.
    *I was planning on submitting a application through VCAT, but I was then informed to go through the magistrates court, and because I cannot afford a Lawyer I was planning on representing myself.
    *We were in a relationship for 12 months and living together for 5 months.
    *Recently I received a letter from her Solicitor informing me she would like to settle the matter and have a mediation, although when I rang her Solicitor to make an appointment to start negotiations I was informed she no longer wants to settle the matter but wants to go to Court.


    Regards,
    Shea
     
  4. Rod

    Rod Well-Known Member

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    She is stuffing you around, probably deliberately. Go to court/VCAT.

    Who told you not to use VCAT?
     
  5. Shea Harrison

    Shea Harrison Active Member

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    I know she is deliberately doing this. Also because she is feels in control and dictating the terms and conditions of realising my property. It is also suiting her needs by not voluntary giving me access to my property, because she is using all of my belongings and property in her residence and would be a disadvantage to her if those items were recovered.
    I was not told not to go to VCAT but was instructed to recover my property in a Magistrates Court as it would have a better outcome, and I was told that information from a Solicitor.
    A member of VCAT has also told to me I may have a better chance in recovering my property in Court, due to their hearing regarding property covers "suing company's over faulty property" not a civil property disagreement over property.

    Sarah, because I have never gone to Court for any reason, what defence would I be submitting to the Court if she is taking me to Court?
    *Because she is claiming her gift to me of $10,000 was actually a loan and is demanding I repay the amount, when I tried to collect my property 19/9/2013 and had a bank cheque for her which she would not accept. Because of I collected none of my furniture and property and I was in a position of needing such basic living items due to my comfort of living with my mental illnesses and my physical injuries, I then used the funds of the cheque to purchase new furniture as I had nothing.
    *She is demanding $10,000 which I had for her, but because I didn't collect any property and used $9,380 of those funds will the Court offset the amount. In other words because it was her decision not release my property and because of her actions I was placed in a situation I had no control over and required furniture. I am also not requesting the furniture I replaced from her, she can keep the old items.

    Her Claim $10,000
    Replaced items she would not release. -$ 9,380
    Only amount she could claim. $ 620
     
  6. Sarah J

    Sarah J Well-Known Member

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    Hi Shea,

    If her claim is successful, yes, you can choose to off-set your property value against that amount, provided the court allows.

    If your ex-partner is claiming that the money was a loan and not a gift, she will need to produce evidence that the money was given to you under terms where you were to make repayments and that there was an agreement to that effect. You, on the other hand, can respond by producing evidence that the money was given to you under gift conditions. The fact that you tried to repay her and she refused could support your case. However, why did you repay her back? This act could be construed as you understanding that the money was in fact a loan.
     
  7. Shea Harrison

    Shea Harrison Active Member

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    Hi Sarah,

    Thank you so much for your professional advice and personal courtesy you have given me.
    I have not repaid her any amount Sarah, and the only reason I was prepared to repay her was to get my property back.
    And because I thought it would be the only way I would get all my property and belongs back.

    Well that is going to be a HUGE disappointment for her in court (which I always knew it would) if the Magistrates asks her to produce any evidence that the money she gave me was in fact a loan, because there is none!
    There was no agreement, there was no commitment to repayments, no documentation written up, and nothing signed.


    Regards,
    Shea.
     
  8. Shea Harrison

    Shea Harrison Active Member

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    Hi Sarah,

    What is the correct terminology for this situation between myself and my ex-partner?
    I am trying to find some documentation of the law regarding my ex-partner having possession of my property and not allowing it to be collected?
    With my Ducati motorcycle she also has in her possession, is it likely for it being returned to me? That bike means everything to me and having it back in my possession would also greatly assist with decreasing my depression.
    The Ducati is solely owned by me and receipted in my name, it is registered in my name, and insured in my name. And there is no finance owing on the Motorcycle, it was paid in full on purchasing.

    Regards,
    Shea.
     

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