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kmslaw
kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 195
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 am away in NZ travelling and I have just heard that last

Customer Question

Hi. I am away in NZ travelling and I have just heard that last week a process server tried to serve me papers to attend Magistrates Court in Queensland Australia. I sold my car some months ago to a buyer and he paid a $5k deposit. I waited a month for finance to come through and he cancelled the finance application in the 11th hour.
JA: What state is this in? And how old is the car?
Customer: The finance company told me (I have the recording) that the full $30k was transferred at 445 pm on the Friday. So I went and used the $5k deposit to pay bills off etc (the reason I was selling the car) Queensland - 3 year old Jeep.
JA: Has anything been filed or reported?
Customer: I am not sure. I just heard today a server came to my old address last Wednesday - I am in NZ so i am unable to find out more. I am assuming I am being called to Court?
JA: Anything else you want the lawyer to know before I connect you?
Customer: ON the monday morning - after I paid my bills off ...the finance company never gave me the $30k in the bank. Leaving me in more financial stress. The buyer then demanded he wanted the money back. The finance company told me that week that the buyer pulled out because their was Visa issues (as he was from the UK). the $5k was a deposit based on a SALE ... to a holding deposit.
Submitted: 6 months ago.
Category: Australia Law
Customer: replied 6 months ago.
The buyer tried to "recall" the $5k deposit via my bank - saying it was paid into the wrong account in error. Then he sent me a letter from a legal aid lawyer (full of lies) saying I had 7 days to pay the deposit back in full. That was in March - I have not heard anything since so I am assuming I am being called to the Southport Magistrates Court for this reason. I have the car on the market still with not one buyer since him. I have dropped the price of the car $1k, I have had to pay another 6 month rego since, the last 5 months of advertising costs, I've had to buy a new battery, had to keep the Road Worthys up to date in order to sell. I spent 4 weeks back and forth with his finance company - hours and hours. The stress has been enormous as I broke my leg and couldn't work so I had to sell the car as a matter of urgency. he's left me in a world of trouble. Im desperately trying to sell the car - but have no interested buyers. Its an immaculate $57k Jeep Wrangler and I sold it to him for $35k! If they finance company (recorded) told me the funds were transferred on the friday and the funds would clear my account Saturday am or Monday am at latest - what grounds do I have? I allocated the $5k funds to bills on this information - that was false. The Finance company avoided me for days - but eventually I got hold of the GM and he emailed me a copy of the "recording" of me and their Agent. So I have proof to this effect.
Expert:  kmslaw replied 6 months ago.

Hello my name is***** am a solicitor in NSW who will help with your inquiry today. I am assuming you want to know whether you are being served to attend the Magistrates Court of Queensland. I cannot tell you this unfortunately. I assume that you also wish to know if you have a watertight defence to the claim. That is something I also cannot tell you without seeing the paperwork. The best chance I will have of being able to tell you this is when you return to Australia and are served with the summons or statement of claim, as this will detail the claims being made against you and then we can look at what defences you have. Does that make sense? However one thing you must be certain of is that if you are attempted to be served whilst you are in Australia, you don't have to accept the document to be legally served, the server can simply put it on the ground in front of you and tell you it is a Court document. And if you avoid service by not coming to the door or by other means, the applicant can get what is called an order from the Court for substituted service, which will put someone else in the position of being able to accept the document on your behalf, or they may make an order that it be emailed to you, for example, to bring it to your attention. See here for details. Does that help you with your request today? Let me know.

Customer: replied 6 months ago.
Hi, this is not really helpful, as this is information about Servers I have already researched from google searches. I was more wanting to know what rights the buyer had as to claiming the money back. It was not a holding deposit, it was based on a pre approved loan and was a SALE deposit. I am not avoiding nor will avoid a server once I am back in Austrlia next week, I wanted more advice on the actual transaction of sale and deposit and the chances of me losing the court case. I am i hardship having lost my business as a result of not selling this car - I was using that to get through the winter months. Is there a chance the Court will let me keep the $5k - or worst case pay him off, of would Bailiffs take my car and sell it. The only paperwork given to either the buyer and I was a copy of the Sale Invoice from the Finance company - stating that I was to be paid $30k as settlement by the finance company as $5k was already paid upfront. At not time did I tell the buyer the $5k was refundable. Nothing was in writing.
Expert:  kmslaw replied 6 months ago.

Hello

You may have googled this information but googling doesn't give you advice from someone qualified to give it necessarily and specific to your circumstances. I am a solicitor, I pay for professional indemnity insurance and as such, you can rely on what I am telling you.

I need to see what paperwork was signed (the sale invoice). Do you have this available? Just attach it here. Also, I cannot advise on the chances of you losing the Court case without seeing the Court documentation that is served upon you unfortunately as I cannot know on what basis they are claiming against you. Be assured though, that I will do what I can to help you.

Customer: replied 6 months ago.
Attached is the final sale invoice that I signed and gave to the buyer who sent it over to the lending company. They have the signed version on file (which can be easily obtained before court). I told the buyer that this was the 4th invoice id signed in 4 weeks and that it needed to transact asap. The finance company told the buyer it would be transferred by the Thursday, on the Wednesday the buyer pulled out of the transaction. When I phoned the finance company to check what happened, they said the buyer had never ceased the sale transaction and as far as they were concerned the funds were being transferred that night. The buyer was lying to both the finance company and myself. When the buyer paid the $5k towards the sale of the car, he had Visa/Immigration issues on Loans in Australia (he's from UK) - the finance company said he never had Loan Pre-approval when he paid the deposit. he has lied to me from day one. $5k is not a holding deposit, it was based on a SALE. I was using the sale funds to move to Bali to live that week. The outcome of his "tyre kicking" has left me in a world of financial stress and ceased my Bali move - I also lost my business as a result!
Customer: replied 6 months ago.
I will send the telephone recording between myself and the finance company to you now stating the funds are being transferred over the weekend - everything has been signed off.
Customer: replied 6 months ago.
sorry I can't attach a 60 sec recording to this platform.
Expert:  kmslaw replied 6 months ago.

Hi just looking at this for you now. Be back to you in a moment. Sorry for the delay, had a busy day....

Expert:  kmslaw replied 6 months ago.

In my opinion, if this buyer didn't sign any other documents with you, then you would have a good case at defending a contract claim against you as the buyer would need to allege the terms that applied to the deposit and when it would be refunded. They haven't taken care in ensuring that they can pull out of the sale early. I hope that helps you. Let me know if you need further help down the track.