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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5420
Experience:  Dip Law LPAB - Sydney based lawyer
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I left my motor bike on consignment with a bike dealer on

Customer Question

Hi my name is***** left my motor bike on consignment with a bike dealer on 14th September 2014.
It was sold on the 16th April 2015 for $12,241.00. I have received no payment. I was supposed to be contacted within 5 days after completion of the sale. I was never contacted. Every 3months I enquired about the status of the bike and was told that it had not been sold. It was mid July 2016 I discovered it had been sold.The South Australia Criminal Law Consolidation Act 1935 states Division 2-Theft 134 (1) © and (2) (b)
1© "a person is guilty of theft if the person deals with property - © intending- (i) to deprive the owner permanently of the property".
2(b) "a person may commit theft of property by misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property".The police say it is civil matter and less I could show intent. If that is not intent to defraud then I am not sure what is.I have collected the necessary documents which implicate the head salesman and one of the partners of the business. Their names are ***** ***** necessary documents.I was hoping that the police would follow up but they seem reluctant.Can you suggest the next step.Thank you.Michael
Submitted: 10 months ago.
Category: Australia Law
Expert:  Patrick H. replied 10 months ago.

Hello and thank you for your question.

It is unfortunately not surprising the police will not intervene. The reality is that because your dispute ha arisen in the context of a contractual arrangement between you and the dealer, the police will generally presume the dispute to be essentially a contractual business arrangement gone wrong and therefore a matter for the parties to sort out either between themselves or by civil legal proceedings.

What you need to do is consider bringing a claim in the magistrates court. Based on the law you cited it appears you are based in South Australia and that being the case the following link provides information about bringing a claim before the magistrates court.

http://www.courts.sa.gov.au/OurCourts/MagistratesCourt/Pages/Civil-Jurisdiction.aspx

Assuming your claim is for less than $12,000 then you can bring your case as a minor claim which fortunately should mean it follows a less formal process which is intended to allow parties to bring proceedings without the need to engage a lawyer.

Based on what you have said it does appear you have a strong prima face claim and it would appear the dealer will have a heard time explaining why they haven't either returned the vehicle or paid you whatever your arranged share was, and this being the case it would seem likely to me that they may well back down and simply pay if you instigate proceedings, or at least attempt to settle with you.

The main danger you may face is if they don't have the money any more, in which case you may ultimately struggle to recover the money since you can only recover money that a party actually has, but if you obtain a court order you can take further action to seize money in their bank accounts, or have the sheriff attend their property to seize and ultimately sell their assets to meet your judgment debt.

I trust the above assists.

Good luck and please rate my answer.

Patrick.

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