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kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 191
Experience:  I have 15 years legal experience behind me and I graduated from the University of Sydney with First Class Honours in Arts/Law.
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I have had a laptop stolen from me through eBay. I cancelled

Customer Question

Hi. I have had a laptop stolen from me through eBay. I cancelled the auction and offered him a full refund after it had finished because the buyer was bothering me about the description not being accurate. I had already posted the item. I asked that he would return the item but now he's kept it and has his money back back. I've informed acorn and the police but they are very useless and not interested in the matter. Apparently its not a type of crime in south Australia which really surprised me. How do I get my laptop back without knocking the guy out?
Submitted: 5 months ago.
Category: Australia Law
Expert:  kmslaw replied 5 months ago.

Hello my name is***** am a solicitor in NSW who will help with your inquiry today. Have you tried using the Resolution Centre on the eBay site to report that you haven't been paid for the item and you want to be paid or you want it returned? See the page you need here.

Customer: replied 5 months ago.
ebay cant help because i cancelled the auction after it ended and refunded him the cash. I've asked the guy to return the laptop but he is just ignoring me which really irritates me to the point where i want to take the law into my own hands as the police or acorn wont help. I've requested for a repayment but the low-life is just ignoring me completely.
Expert:  kmslaw replied 5 months ago.

Hi again. You can sue him in the local Court or the magistrates court (which state are you in?) on the basis that there was an implied term in your contract that should moneys be refunded to him for the purchase he should return the goods. Therefore he has breached the contract (by breaching this implied term). All the better if you had something on your description in eBay that you can print out that said specifically that if refunds were made goods must be returned, but I guess you may not have thought of this beforehand. When you prepare the claim for the local or magistrates court, you should plead breach of contract but also in the alternative, plead the tort of conversion, so that if you cannot prove breach of contract you have the option of just proving the tort of conversion.

Customer: replied 5 months ago.
No I didn't state if refunds are issued goods must be returned. I think I'm pretty screwed for breach of contract. How much is all of this going to cost me. I'm in Queensland by the way. They culprit is in south Australia. I've never been in court before so what is this tort of conversion.
Customer: replied 5 months ago.
Why can't the police just force the guy to return it? I'm confused. ..
Expert:  kmslaw replied 5 months ago.

Hello. The police are probably more concerned with crimes that get more media attention, for example murders, assaults and injuries like grievous bodily harm. Theft of a laptop are not high on their priority when they have a limited budget to forestall those crimes that would mean they are on 60 minutes if they stuffed it up. Fact of life.

So if you do the case in Queensland yourself it won't cost you a cent. Let me just check the jurisdiction of the Magistrates Court in Queensland to see if you can take action there. Of course you can take a breach of contract claim, you just argue that it's an implied term. It's an obviously implied term as no one would be agreeing to issue refunds and let their customer keep the goods.

Expert:  kmslaw replied 5 months ago.

You can utilise the Self Represented Litigant people in the Court system in Queensland, their contact numbers are here: The Self-Representation Service will most likely direct you to cases you can use in support of your claim and they are on the same page as I just linked you to. To find your way in the Court on the day, there are volunteers everywhere that you can ask questions. Also if you get stuck with the preparation of your case, you can ask the Community Legal Centres in your area for assistance, their contact numbers are also on that page.

You haven't made clear to me whether you are a business selling laptops or just a private individual who was getting rid of their laptop on eBay. I think if you were selling laptops as a business, you can lodge a claim in the Queensland Civil and Administrative Tribunal (QCAT). See everything you need to know about Consumer and Trader Disputes here. On that page there is information about which forms to use, what fees to pay etc. Otherwise if you were just a private individual selling your laptop on eBay you should lodge a claim in the Magistrates Court, I've check the jurisdictional issue so you have no problem there.

So what you need to do is fill out the claim form in whichever Court or Tribunal is right, pay the fee, then after you've done that, create your own statement of what you think occurred, attaching to it any documents that prove your evidence. As you can see from this page, you don't automatically have a right to representation from a solicitor in the QCAT anyway. But you can apply to be represented if you want to but I don't recommend it as most people in the QCAT are self-represented anyway you just have to be organised about what you want to show the member of the tribunal and your story. See this page about preparing statements in the QCAT. Don't forget to say what it is you want in your statement and if you want either the money to be returned or the laptop to be returned, express this as an alternative option. There's a lot of information online so just work through it.

If you go to the Magistrates Court (MC), here is the page about representing yourself in Court. Pay particular attention to the Practice Directions there, that will tell you what to expect from the judge in the division you are suing and what to expect in the Court room often. Don't be nervous, as even solicitors are nervous when they appear there for the first time, so you are among friends. In the MC you will not prepare a statement, you will prepare an affidavit, in this format. Again, utilise the free court resources and your community legal centre to get the cases and commentary you need for breach of contract and for tort of conversion.

What you can do to understand the tort of conversion is to ask the community legal centre or someone in the Court network to copy the pages from their text book (a torts and a contracts textbook) on the topic. Alternatively, if you visit the State Library in your State they usually have a legal section there. Borrow or just take off the reference shelf a torts textbook and a contracts textbook. You might also find the tort of conversion in a personal property textbook.

You can ask the community legal centre to direct you to cases on austlii that will help you. Here is austlii's website. You can also do your own searches in there for cases.

What you need to do when looking for cases is to read through and try and make an analogy between your situation and the facts in the case, then use the judge's decision to prove your point too.

The reason I am encouraging you to do this yourself is that for the cost of a laptop, paying someone legal fees is not worth it.

If you have a low income, you can get the community legal centre to do this for you on your behalf if you meet all of their criteria.

I hope that has helped, let me know if you need more help.

Customer: replied 5 months ago.
I've heard of a letter of demand. Can I utilise that in anyway?
Expert:  kmslaw replied 5 months ago.

yes you can use a letter of demand. Usually that starts the litigious process. You'll still want it to sound authoritative by referring to some law in there, to give it more power.

Expert:  kmslaw replied 5 months ago.

Do you still need help with this? If not, please rate my answer. If you need my help, let me know how I can be of assistance.