Car sold illegally. What is my position?

[Amethyst]

Re: Car sold illegally. What is my position?

Just outside the box wise ( it's late so feel free just to ignore me) you mentioned I think that you had the original documents for the vehicle and that WITH those documents the car instantly doubled/trebeled it's price. You want the car, the buyer may well want those documents ... and potentially you could come to some kind of a deal with the buyer... wherein you both have the benefit of the car?? stranger things have happened... of course that's only if the action against the seller comes to nout - just thinking your priority seems to be getting the car rather than getting compensation on top of your money back from the seller.

[Openlaw15]

Re: Car sold illegally. What is my position?

Wow this thread has since done more mileage than that car!

[Openlaw15]

Re: Car sold illegally. What is my position?

If you have legal cover then you should be consulting them and they will advise your best options. I'm afraid though it may be unlikely that you can recover the vehicle due to the fact that the 2nd buyer has purchased the vehicle in good faith and no notice of any sale (unless you can prove otherwise) which means ownership passes to that 2nd buyer. The fact that the car is a rare one and if money is not an adequate remedy then the it would be up to the judge to decide whether or not an alternative remedy can be given. s25 of the Sale of Goods is a statutory exemption and the judge can't dis-apply that.

@Openlaw15 - since you've freely admitted that it's been a while since you have studied commercial law, might I suggest you do some reading prior to posting? s47 SGA has absolutely no relevance to this matter as it relates to the Sellers remedies - the seller has no remedy here it is the buyer. S25 is not intended to protect the seller at all, if that were the case then the buyer would have no remedy against the seller for breach of contract?! It is designed to protect those who have purchased something in good faith without notice that the goods have already been sold.

Rob, get in your car and go the library and read a commercial law book, you'll see that s.47 and s.25 are very relevant to protected the second buyer. Hmm. Rob the seller has remedy against the buyer where there is a breach in simple contract...obviously. If we're discussing might i suggestions, might i suggest you attempt to study law without thinking you can understand law simply by reading parliament's primary statute, ie Acts.

[R0b]

Re: Car sold illegally. What is my position?

Rob, get in your car and go the library and read a commercial law book, you'll see that s.47 and s.25 are very relevant to protected the second buyer. Hmm. Rob the seller has remedy against the buyer where there is a breach in simple contract...obviously. If we're discussing might i suggestions, might i suggest you attempt to study law without thinking you can understand law simply by reading parliament's primary statute, ie Acts.

Well, just to clear things up a little, I don't need to read a commercial law book, I have studied law and I also work in practice. More specifically, I deal with all things commercial so I have plenty of experience in the SGA. Unfortunately for yourself, a law graduate of however long ago, don't appear to grasp the skill of interpretation.

I never denied saying that s25 irrelevant and once again seems like you are not reading what I am suggesting. Again s47 has no applicable relevance to this matter, ss38-48 fall under Part 5 - Rights of the unpaid seller against the goods. S47 applies where the buyer has wrongfully taken control of the goods (e.g. before acquiring possession) and sold them to a third party without paying the seller then seller then continues to have a right of lien against the goods sold to the third party. This does not apply however and just like s25, where the title is transferred to the third party in good faith for moneys worth then the right to a lien does not apply.

So just to clarify again, the OP has stated that he paid the seller a deposit and then the remaining balance a day before collection. There is no mention that the seller had not been paid so s47 nor is there indicattion that the buyer has wrongfully taken possession and sold the goods so is not applicable in this case, only s25. The problem I have with you is that you don't appear to be contributing to the thread (and some others ive read) because you simply don't read the original problem or whatever your reaming off is confusing, doesn't make sense or your interpretation and/or application is just crap.

Come down off your high horse and if you are going to contribute to someone's problem then read the issue and think of the application rather than just churning out the first thing that pops in your head.

[Openlaw15]

Re: Car sold illegally. What is my position?

Well, just to clear things up a little, I don't need to read a commercial law book, I have studied law and I also work in practice. More specifically, I deal with all things commercial so I have plenty of experience in the SGA. Unfortunately for yourself, a law graduate of however long ago, don't appear to grasp the skill of interpretation.

I never denied saying that s25 irrelevant and once again seems like you are not reading what I am suggesting. Again s47 has no applicable relevance to this matter, ss38-48 fall under Part 5 - Rights of the unpaid seller against the goods. S47 applies where the buyer has wrongfully taken control of the goods (e.g. before acquiring possession) and sold them to a third party without paying the seller then seller then continues to have a right of lien against the goods sold to the third party. This does not apply however and just like s25, where the title is transferred to the third party in good faith for moneys worth then the right to a lien does not apply.

So just to clarify again, the OP has stated that he paid the seller a deposit and then the remaining balance a day before collection. There is no mention that the seller had not been paid so s47 nor is there indicattion that the buyer has wrongfully taken possession and sold the goods so is not applicable in this case, only s25. The problem I have with you is that you don't appear to be contributing to the thread (and some others ive read) because you simply don't read the original problem or whatever your reaming off is confusing, doesn't make sense or your interpretation and/or application is just crap.

Come down off your high horse and if you are going to contribute to someone's problem then read the issue and think of the application rather than just churning out the first thing that pops in your head.

Ok Rob, read Hooley on Commercial Law - s.47 is very relevant. Hooley states that s.25 and s.47 are read together.

[Openlaw15]

Re: Car sold illegally. What is my position?

@des8, the case your looking for I think is Pacific Motor Auctions Pty v Motor Credits Ltd 1965 as per Lord Pearce, this is the paragraph your after.

No mention of s.25, which was my idea; s.25 relates to buyer 1 not buyer 2. Buyer 1 relies on s.25, seller relies on Retention of Title (Rot) Clause to defeat buyer 1..

[Openlaw15]

Re: Car sold illegally. What is my position?

resale is s.25, SGA 1979 - ie buyer in possession.. whereas s.24 is seller in possession.

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This relates to s.24, SGA - seller in possession. On the facts seller is not in possession.

Post 11 now, my idea was s.25 - you argued it was s.24.,

[Openlaw15]

Re: Car sold illegally. What is my position?

But how can the 1st buyer claim fraud when there was no element of fraud when the sale for the car was made? buyer agrees to pay X, seller accepts and that is that. There is no false rep, abuse of position or failure to disclose when the contract was made between the two parties. Am I missing something?


Can you explain this, I don't understand this point either. You said that s24 doesn't apply because the seller wasn't in possession of the goods but the above doesn't explain your reason why?

s24 states


So, the seller refuses to hand the goods over (breach of contract but still in possession after sale as payment already made) but then goes on to sell the goods to a third party, presumably without the third party being told that it had already sold and therefore s24 applies.

Still no mention of s.25, my idea. post 14. I think you did deny it.

[leclerc]

Re: Car sold illegally. What is my position?

Still no mention of s.25, my idea. post 14. I think you did deny it.

Are we really going down this route now???

[Amethyst]

Re: Car sold illegally. What is my position?

This exception, contained in s.24 of the Act, applies where a seller sells goods to one party, retains the goods and then, before delivery to the contractual buyer, delivers or transfers the goods or documents to another under a sale.The aim of this provision is to protect an innocent purchaser who is deceived by the vendor's physical possession of goods or documents and who is unaware of legal rights which fetter the apparent power to dispose.

which agreed with

So, the seller refuses to hand the goods over (breach of contract but still in possession after sale as payment already made) but then goes on to sell the goods to a third party, presumably without the third party being told that it had already sold and therefore s24 applies.

I can't see how 25 applies as the buyer (the OP) did not have possession of the goods

[des8]

Re: Car sold illegally. What is my position?

Can't believe this is continuing to nowhere slowly.
Original request was info for OP on how he could obtain possession of car he had purchased and paid for but had not taken delivery
The car had been left in possession of seller, who then resold it.
Short answer for OP is you will not now gain possession of said vehicle.
Let us leave it at that!

[Openlaw15]

Re: Car sold illegally. What is my position?

s.24 - seller in possession. s.25, buyer in possession. Buyer 1 defence s.25 (claims title) against seller but where seller has a retention of title clause, buyer 1 defeated. Buyer 2 defence, s.47 where purchases goods lawfully, ie the lawful part is if buyer 2 does all that he/ she can to make it a lawful purchase. It does not means the seller has to have made a lawful transaction which in this case we know he has not.