This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Recovering goods left behind

Information about what a person can do to reclaim goods that they have left at a person's house.

There are some situations where a person either:

  • loans goods to someone like a neighbour, or
  • leaves goods behind at a friend's or relative's house, and

then have some kind of argument and the other party refuses to let them come to collect the goods.

Note: The process is different if the person has left goods in a rental property, see Goods left behind by renters or residents.

How this is described in law

Trying to recover goods under these situations relies on the common law tort of detinue. Detinue is the wrongful detention where the plaintiff (person making the complaint) has the right to immediate possession of the goods and has asked for them to be returned.

There are 2 similar situations where this arises:

  • where a person who has possession of the goods and unreasonably refuses to return them (for example, if a TV is left behind at a friend's house)
  • where a person was loaned the goods, but the goods have not been returned (for example, if a person loaned their neighbour their leaf blower and they refuse to return it).

Elements required

There are 3 common elements required for this common law action of detinue to arise:

  • the plaintiff must make a demand for their goods, and
  • the other party must have unreasonably refused this demand, or
  • if the other party must have unreasonably parted with the goods (if they are no longer in their possession).

To succeed the person who wants their goods back will need to be able to prove that they have more right to possession than the person who is in possession of the goods. They will also need to prove that they have asked for the goods to be returned and that this was unreasonably refused.

If the goods are no longer in possession of the person that they were left with the owner may still be able to recover their goods or to seek compensation for being wrongfully deprived of the goods. It is a complex area of law and the person may have to get help from a private lawyer to take the matter to court.

How goods can be recovered

The person who is trying to recover goods left could try the following. Firstly they have to be very clear that they have asked for the goods to be returned and that this has been refused. The person may need to get evidence of their ownership of the goods, for example a receipt. They should write down information about when the goods were left or loaned and when they asked for the goods to be returned.

Mediation

Mediation is a good first step to take. The person wanting their goods back can contact the Dispute Resolution Centre. The centre will write to the other party inviting them to come to a mediation session that is chaired by a mediator. Attendance is not compulsory, but it is free.

See Dispute Settlement Centre of Victoria(opens in a new window).

Write a letter of demand

The owner of the goods could write a letter of demand. The letter should describe the goods and demand that the goods be returned by a particular date, usually between 7 and 14 days from the date that the letter is written. This time is not fixed and will depend on the particular facts and circumstances of the case. For, example a person could demand immediate access to collect the goods if the owner has concerns that the other party is disposing of the goods. Alternatively, if the owner is demanding return of the goods and the other party works full time and lives far away, it may be reasonable to give 21 days notice in the letter of demand.

This is not a formal legal letter, although they are often drafted by a lawyer. The letter is a warning that the person intends to take the matter to court if the other person does not return the goods.

Keep a copy of the letter.

Take the matter to court

Injunction

The owner can apply for an injunction to prevent the disposal, concealment of the goods if this is necessary. This process is the common law mareva injunction, sometimes called 'freezing orders'. This is a court order to stop the person from disposing of goods. The court will generally require the owner to show that there is an arguable case that they would succeed at trial, and that if an injunction were refused that it could mean that an award in their favour would remain unsatisfied. This is a preliminary action to preserve goods before a court hearing. It does not change ownership. The owner will probably need help from a private lawyer to do this.

Applying to court to recover the goods

Whether it is worth trying to recover the goods by taking the matter to court will depend on how valuable the goods are and how much evidence the owner has that they actually own the goods.

The person should get independent legal advice about this. They could try a private lawyer or could seek assistance from their local community legal centre.

Time limit

The person cannot take the matter to court to recover the goods if 6 years have passed from the time that they demanded the return of the goods.

If the goods were wrongly handed over to a third party, the owner has 6 years from the date that the goods were handed over to that other party. There is a possibility that this time limit could be extended if the defendant acted fraudulently.

See s. 5, 27—Limitation of Actions Act 1958 (Vic).

Orders the court may make

The court could order that the goods be returned and that the owner is paid damages for loss of the use of the goods.

More information

Legislation

Limitation of Actions Act 1958 (Vic)

  • s. 5—contracts and torts
  • s. 27—postponement of limitation periods in case of fraud or mistake

See Limitation of Actions Act 1958 (Vic)(opens in a new window).

Reference

The Laws of Australia (Westlaw)

This resource has more detailed information about this area of law.

Note: This resource is only available to staff at Victoria Legal Aid.

See The Laws of Australia—The essence of “detinue” is wrongful detention of a chattel to which the plaintiff has the right of immediate possession(opens in a new window)

Law Institute of Victoria

The Law Institute has a list of private lawyers who have agreed to a free half hour session.

See Law Institute Victoria—Legal Referral Service(opens in a new window).

Dispute Settlement Centre

Contact the centre to arrange to have mediation between the owner and the possessor.

See Dispute Settlement Centre of Victoria.

Federation of Community Legal Centres

To find the closes community legal centre.

See Federation of Community Legal Centres(opens in a new window).

Updated