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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 862
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Good Morning. I am based in New South wales Australia. I import

Customer Question

Good Morning. I am based in New South wales Australia. I import aircraft restoration projects (old warbirds for restoration) out of the USA. I have imported a number of projects to date with no complications. In 2012 I acquired 4 projects from a single vendor.
I paid over the deposit and paid for the projects to be packed ready for transport and shipping. After these payments were made the vendor then discloses that the aircraft are subject to a lien with a bank in the US and the bank will not release the lien. at no time during the negotiations or after the deal was struck did the vendor disclose the existence of the lien. The goods are currently stored at a third party location. The vendor has recently contacted me to request a further payment of $40k to bring his loans up to date. He claims that he is starting up a new business and will have cashflow to return the funds in July and then work on getting the Lien lifted by the bank. He advises that if the loans are not brought up to date then the bank will go to foreclosure and the funds I have contributed to date will be at risk. My question is what options do I have in terms of getting a caveat/lien /restraining order placed over the goods preventing them from being removed from their present storage location or disposed of without permission of the court. Obviously I am not going to send further funds to the vendor, commercially I would have thought that if the bank has a lien over the goods and forecloses then they will take possession of the goods and attempt to sell them. Given the market for these types of goods then I want to do my best to ensure the bank deals with me.

regards XXXXX XXXXX australia emailXXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Evening

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Have you paid the full amount? Do you know who has the lien over the items?

You do not give him anymore money you need to speak to the bank and see what they are owed.

Does the bank have the items in their possession?

Customer: replied 1 year ago.

Hi. Thank you. In answer to your questions. Only deposit paid plus packing costs. In total $60k to vendor plus approx $20k to crate for shipping. Full price is approx $210k so $150k to go.


 


No idea who has lien over the items. Its a bank that's all I know.


 


No bank does not have items in their possession. They are stored at a facility owned by a third party unlrelated tto the transaction. I have emailed them to check that the items are still there.


 


Was thinking that taking a caveat or lien or restraining order (not sure which is appropriate in the United States) at least gives some protection.


 


from my perspective, the items were up for sale for over 2 yrs before I struck a deal with the vendor. My offer was best available so expect if bank was to forclose on the vendor and act on Lien they are not going to get a better price than what I offered anyway.


 


Is the vendor acting fraudulently by not disclosing the existence of the lien before the sale. seems he was offering to sell goods he wasn't legally entitled to sell without permission.


 


regards


 


kent

Expert:  Leon replied 1 year ago.
Good Evening

You will need to get information from him about the lien and be authorised ot get information from the bank.

Also you will need to get him to enter into an agreement that will give you the right to a lien. If you do not have this you cannot register your interest.

Even registering you interest you come second the original bank. This is why you need to know who the lien is with and to be allowed to speak with the bank to know what he owes them.

Once you know this then you know how much he is entitled to get and what the bank has to get.

He is not acting fraudulently. Unless the agreement he signed says he will disclose all this then he may be in breach.

Do you have an agreement that you signed to buy the item? Have you asked him for details about the lien and the bank?


Customer: replied 1 year ago.

Hi Thanks for this. My next step was to ask him for information in respect of the lien.


short answer in no no written agreement, series of emails between us working through the deal. (I know written agreement would have been better but in the warbird trading world it doesn't happen a lot, this is the first time in about 10 such deals anything has gone wrong)


Hindsight is a great tool and I should have insisted on a written agreement before releasing any funds rest assured I will in the future.


 


I was waiting for confirmation that the items are still at the storage location before taking the step of asking for the bank details.


 


Once he mentioned the existence of the lien, I started to tread lightly as I knew there was risk of loss. seems to me that if not fraudulent misrepresentation (he after all accepted part payment for goods he must have known he could not transfer title to the purchaser at the time he offered them for sale) then at the very least it is ethically questionable.


 


Anyway I'll make the inquiry of the lien details and get back to you.


 


thanks for your input.
Much appreciated.



Cheers


 


Kent

Expert:  Leon replied 1 year ago.
Good Evening

You need the information and you will also need to get him to sign an agreement setting out you have a right to a lien and also how the payments will be structured so that you pay the amount and the lien be removed and the war bird released to you.


Customer: replied 1 year ago.

Hi Thanks again. Will do.


 


I'll let you know haw it goes.


Thanks and Regards


Kent

Expert:  Leon replied 1 year ago.
Good Evening

I look forward to hearing from you.

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