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15 June 2022
Most people have loaned an item, perhaps a book, tools, a vehicle or trailer to a friend or family member that has not been returned.
In most cases, a reminder will prompt the borrower to return the item. Occasionally, however, the borrower might refuse to give the item back, even after a demand is made that they return it.
In this article I will detail the possible legal steps you might take to ensure the item is returned.
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If the borrower refuses to return your item, you might wish for them to be charged with a criminal act, such as theft.
If this happens for a valuable item, the first thought is usually to contact the police, who might then lay a criminal charge of theft.
For the police to be willing to proceed with the charge of theft, they will need to be satisfied that the borrower appropriated property belonging to another; the borrower did so with the intention of permanently depriving the other of the property; and the borrower acted dishonestly.
Appropriated means a person assumed any rights of the owner or adversely interfered with the owner’s right to the item. Refusing to return an item satisfies this element.
If the borrower intends to keep the item forever, this satisfies the element that they intended to permanently deprive the owner of the item.
Dishonesty has a special meaning here and means that the borrower acted without any claim of legal right. This element is most likely to be the most difficult to prove as the borrower might state the item was gifted to them when there is no evidence showing this to be untrue.
Where police are not confident they are able to prove the charge in court they might choose not to charge the borrower. They might comment they view the matter as a civil matter rather than a criminal matter and will refuse to investigate and lay charges.
Letter of demand
If police refuse to charge the borrower or you don’t wish to have the borrower criminally charged, you should contact your solicitor. Your solicitor will likely prepare a letter of demand on your behalf.
A letter of demand is a letter to the other party asking for something to be done. It warns the other party that if this is not done, you might start a court case. In this case the demand is that the borrower returns the item.
Suing the borrower
If the borrower fails to comply with the letter of demand, your solicitor might suggest you sue the borrower, likely in the Magistrates Court of Victoria, which ordinarily will hear claims up to an amount of $100,000.
In the situation where a borrower refuses to return an item, you might sue them for detinue.
There are five elements to a claim of detinue that must be proven for the claim to succeed: The claimant has a better right to possession of the item than the borrower; a demand is made; the demand is refused; the refusal is unreasonable; and there is consequential damage.
You might think that it is enough that someone is in possession of your item to make a claim. However, for a claim of detinue to succeed you must also prove that you made a demand for the item to be returned.
If this element is not met, a different cause of action will be preferrable.
The demand is refused element will be met if the borrower expressly states they will not return the item or if they fail to return the item as demanded.
You cannot sue someone for detinue if they return the item once you demand they return it. However, the borrower can still be liable for detinue if they passed the item on to a third party without your consent.
The borrower cannot be sued if their reason for not returning the item is reasonable. An example would be if the borrower has a lien over the item for non-payment of work done in accordance with a contract, such as repairs to a car.
You must be able to show that you suffered loss as a result of the borrower’s failure to return the item.
Ordinarily, this will simply be the value of the item that has not been returned. However, there might be additional losses, especially in business situations where not having the item means you cannot provide a service you ordinarily would.
You must bring an action for detinue within six years of the action giving rise to the claim.
Usually, the plaintiff in a claim for detinue will seek that the court order the borrower return the item along with damages and legal costs.
Ordinarily where a claim for detinue is made the cause of action of conversion is also available.
Trespass of goods is another alternative cause of action that might be made in different circumstances.
It is important to seek legal advice so the appropriate legal steps can be taken in your circumstances.
• Patrick Smith is the principal of O’Brien and Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien and Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.
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