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Disposal of Uncollected Goods Act 1968
An Act to authorize the disposal of goods the subject of a bailment that have not been redelivered; and for purposes connected therewith
[Royal Assent 24 July 1968]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART I - Preliminary
1. Short title and commencement
(1) This Act may be cited as the Disposal of Uncollected Goods Act 1968 .(2) This Act shall commence on a date to be fixed by proclamation.
(1) In this Act, unless the contrary intention appears –clerk, when used in relation to a court of petty sessions, means the clerk of petty sessions for the district in which that court is held;court means a court of petty sessions constituted by a magistrate sitting alone;hire-purchase agreement includes a letting of goods with an option to purchase and an agreement for the purchase of goods by instalments (whether the agreement describes the instalments as rent or hire or otherwise), but does not include an agreement whereby the property in the goods comprised therein passes at the time of the agreement or upon or at any time before the delivery of the goods;motor vehicle means a motor vehicle within the meaning of the Traffic Act 1925 ;notice of intention to sell means a notice referred to in section 5 (1) (b) ;notice that goods are ready for redelivery means a notice referred to in section 5 (1) (a) (i) ;notice to treat a dispute as determined means a notice referred to in section 6 (2) ;order for sale means an order made under section 14 .(2) Where, by virtue of two or more agreements, none of which by itself constitutes a hire-purchase agreement, there is a bailment of goods and either the bailee may buy the goods or the property in the goods will or may pass to the bailee, the agreements shall, for the purposes of this Act, be treated as a single hire-purchase agreement made at the time when the last agreement was made.(3) References in this Act to a bailor or bailee of goods shall, as respects a period during which his rights and obligations in relation to the goods are vested in any other person, be construed as references to that other person.
PART II - Disposal of Uncollected Goods Accepted for Repair or Treatment
(1) This Part applies in relation to the bailment of any goods accepted (whether before or after the commencement of this Act) by the bailee in the course of a business for repair or other treatment on the terms (express or implied) that they will be redelivered to the bailor or in accordance with the bailor's directions when the repair or other treatment has been carried out and on payment to the bailee of such charges as may be agreed between the parties or as may be reasonable.(2) References in this Part to goods accepted by a bailee in the course of a business for repair or other treatment shall, in relation to goods of any class, be construed as references to goods of that class accepted by him for repair or other treatment in the course of a business consisting of or comprising the acceptance by him of goods of that class for repair or other treatment (whether or not the repair or other treatment is effected by him) wholly or mainly from persons who deliver to him, otherwise than in the course of a business, goods of that class for repair or other treatment.
4. Right of bailees to sell uncollected goods
(1) Where goods accepted pursuant to a bailment in relation to which this Part applies are ready for redelivery, but the bailor –the bailee is, subject to the provisions of any agreement between him and the bailor and to the provisions of this Act, entitled, while the failure continues, to sell the goods.(a) fails to pay or tender to the bailee his charges in relation to the goods; or(b) having paid those charges, fails to take delivery of the goods or, if the terms of the bailment so provide, to give directions as to their delivery –(2) Subsection (1) does not authorize a bailee to sell goods if, before he commenced work on the goods, he had notice that they were comprised in a hire-purchase agreement containing a provision prohibiting the creation of a lien by the hirer of the goods.
5. Limitations on bailee's right to sell
(1) A bailee is not entitled, by virtue of section 4 , to sell any goods unless the following provisions are complied with, that is to say:(a) After the goods are ready for redelivery, or after the commencement of this Act, whichever is the later –(i) a notice stating that the goods are ready for redelivery is given to the bailor and to every other person who, at the time that notice is so given, the bailee actually knows has, or claims, an interest in the goods; and(ii) a copy of the notice, or any one of the notices, given under sub-paragraph (i) is served on the Commissioner of Police; and(b) After the expiration of the period of 6 months following compliance with the provisions of paragraph (a) and not less than one month before the sale of the goods, a notice of intention to sell the goods is given to the bailor and to every other person who, at the time that notice is so given, the bailee actually knows has, or claims, an interest in the goods.(2) Without prejudice to the provisions of subsection (1) , a bailee is not entitled, by virtue of section 4 , to sell a motor vehicle unless at least 6 months before a notice of intention to sell the vehicle is given under paragraph (b) of that subsection the bailee causes to be published in the Gazette a notice containing sufficient particulars to identify the vehicle and stating that the bailee intends to proceed to exercise his rights under this Act in respect of the vehicle.(3) Paragraph (a) of subsection (1) does not apply where there has arisen in respect of the goods such a dispute as is referred to in subsection (1) of section 6 , and, in such a case, paragraph (b) of subsection (1) has effect as if for the reference to the period referred to therein there were substituted a reference to a period of 6 months following the determination of a dispute (whether under this Act or otherwise).
6. Disputes as to charges, &c.
(1) Where at any time before the giving by a bailee to a bailor of notice of intention to sell any goods a dispute arises between the bailee and the bailor by reason of the bailor's refusal –on the ground that the charges are excessive or that the bailor is not satisfied that the repair or other treatment of the goods has been properly carried out, the bailee's right, under this Part, to sell the goods may not be exercised until the dispute is determined.(a) to pay the sum that the bailee claims to be due to him by way of his charges in relation to the goods; or(b) to take delivery thereof, or give directions as to their delivery –(2) Without prejudice to any other mode of determining a dispute it shall be treated, for the purposes of this Part, as having been determined if the bailee gives to the bailor a notice –and, within that period of one month, the bailor does not object to the notice.(a) stating that unless, within the period of one month beginning with the date of the giving of the notice, the bailor objects thereto, the dispute will be treated for the purposes of this Part as having been determined; and(b) in other respects, complying with the requirements of section 7 –(3) Where, by virtue of subsection (2) , a dispute is treated as having been determined, it shall be treated as having been so determined on the date of the giving of the notice referred to therein.(4) If, within the period of one month referred to in subsection (2) the bailor notifies the bailee that he objects to the notice, a court, on the application of the bailor or the bailee, may, if it considers it proper in all the circumstances so to do, make an order specifying the amount which it considers reasonable in respect of the bailee's charges.(5) Upon the making of an order under subsection (4) the dispute shall for the purposes of this Act be deemed to have been determined, and the amount specified in the order shall, subject to subsection (6) and subsection (7) , be deemed, for all purposes, to be the amount of the bailor's liability to the bailee for the bailee's charges.(6) Where any costs are awarded in respect of an application under subsection (4) in respect of any goods, the charges of the bailee in relation to those goods shall, if those costs are awarded against the bailee, be deemed to be reduced by, and, if they are awarded to the bailee, increased by, the amount of so much of those costs as are not otherwise recovered.(7) Nothing in subsection (5) prejudices or affects the rights of any person in respect of the additional amounts referred to in section 10 .
(1) This section applies to –(a) notices that goods are ready for redelivery;(b) notices of intention to sell; and(c) notices to treat a dispute as determined.(2) A notice to which this section applies shall contain –(a) a sufficient description of the goods to which it relates; and(b) if the bailee claims a sum to be due to him by way of his charges in relation to the goods, a statement to that effect specifying the amount of the sum and the manner in which it has been calculated.(3) A notice that goods are ready for redelivery or a notice to treat a dispute as determined shall contain a statement –(a) that the goods to which the notice relates are available for collection by the bailor at the place specified in the notice; and(b) that, if the bailor fails, within a period of 6 months beginning with the date of the giving of the notice both to pay the sum (if any) due to the bailee by way of his charges in relation to the goods and to take delivery of the goods or give directions as to their delivery, they are liable to be sold in accordance with this Act.(4) A notice of intention to sell any goods shall contain –(a) a statement of the date of the giving to the bailor the notice that the goods are ready for redelivery or, where there has been a dispute between the bailor and bailee, the date on which the dispute was determined; and(b) a statement that if the bailor fails, within a period of one month beginning with the date of the giving of the notice both to pay the sum (if any) due to the bailee by way of his charges in relation to the goods and to take delivery of the goods, or give directions as to their delivery, they are liable to be sold in accordance with this Act.
8. Mode of sale of uncollected goods
(1) A bailee is not entitled, by virtue of section 4 , to sell any goods otherwise than by public auction.(2) At the request, and on behalf, of a bailee a bailiff within the meaning of the Magistrates Court (Civil Division) Act 1992 may, on such terms and conditions as may be prescribed, conduct the public auction at which goods that a bailee is entitled to sell under this Act are offered for sale.(3) Goods accepted by a bailee from a bailor that, pursuant to this section, may be sold by public auction shall not be so sold in a lot in which there are included other goods that were not accepted by the bailee from that bailor.
(1) Where goods are sold by virtue of the provisions of this Part, any amount by which the gross proceeds of the sale exceed the charges of the bailee in relation to the goods may be recovered by the bailor as a debt due to him by the bailee and any amount by which those charges exceed the gross proceeds of sale may be recovered by the bailee as a debt due to him from the bailor.(2) Where goods are sold by virtue of the provisions of this Part, the bailee shall, before the expiration of the period of 7 days beginning with the date of the sale of the goods, prepare a record in relation to the goods containing the following particulars, that is to say:and shall, during the period of 6 years beginning on the day on which the record is prepared, keep the record together with a copy of the notice of intention to sell the goods and shall, at any reasonable time during that period, if so requested by or on behalf of the bailor, produce the record and copy for inspection by the bailor, any person nominated by him in that behalf, or any person who at the time of the sale had or claims to have had an interest in the goods.(a) A sufficient description of the goods;(b) The date and place of the sale;(c) The name, and address of the place of business, of the person who conducted the sale;(d) The amount of the gross proceeds of the sale;(e) A statement of each item of the charges of the bailee in relation to the goods and the transactions to which each item relates –(3) A person who –is guilty of an offence.(a) fails to comply with any of the provisions of subsection (2) ; or(b) produces or furnishes a document kept for the purposes of that subsection that to his knowledge is false in a material particular –
10. Determination of bailee's charges
Subject to this Part, references therein to the charges of a bailee in relation to any goods shall, subject to the provisions of any agreement between the bailor and the bailee, be construed as references to the amount agreed between them as the charge for the repair or other treatment of the goods or, if no amount has been so agreed, a reasonable charge therefor and, in a case where the goods have been sold, the following additional amounts, that is to say:(a) A reasonable charge for storing the goods during the period beginning with the date of the giving of the notice that the goods are ready for redelivery, or, where there has been a dispute between the bailor and the bailee, the date on which the dispute was determined, and ending with the date of the sale;(b) Any costs of, or in connection with, the sale; and(c) The cost, if any, of insuring the goods during the period referred to in paragraph (a) .
11. Special provisions in relation to goods accepted before commencement of Act
(1) Where the bailee of goods accepted before the commencement of this Act for repair or other treatment does not at the commencement of this Act know any address of the bailor, the bailee shall not be disentitled to sell the goods by reason only that section 5 (1) has not been complied with if the following provisions are complied with, that is to say:(a) Within the period of 3 months beginning with the commencement of this Act, the bailee publishes in a newspaper circulating in the locality where the goods were so accepted a notice complying with the requirements of subsection (3) ; and(b) The goods are not sold until the expiration of 6 months beginning with the commencement of this Act.(2) Where goods are sold by virtue of the fact that the provisions of subsection (1) have been complied with, this Act has effect in relation to the goods subject to the following modifications, that is to say:(a) Publication of the notice referred to in subsection (2) of section 5 at least 3 months before the sale of the motor vehicle shall be treated as a publication during the time allowed by that subsection;(b) For the reference in section 9 (2) to a copy of the notice of the bailee's intention to sell the goods there shall be substituted a reference to a statement of the name and issue of the newspaper in which the notice under subsection (1) (a) was published; and(c) For the reference in section 10 (a) to the date of the giving of the notice that the goods are ready for redelivery there shall be substituted a reference to the date of the publication of the notice in accordance with subsection (1) (a) .(3) A notice under subsection (1) (a) in relation to any goods shall contain –(a) a sufficient description of the class to which the goods belong;(b) the name under which the bailee carries on the business consisting of or comprising the acceptance of goods of that class for repair or other treatment and the address of the bailee's principal place of business or, where the bailee is a corporation, the registered or principal office of the corporation, and, if the name or the address has changed during the 12 months immediately preceding the date of the publication of the notice, the last such name or, as the case may be, the last such address preceding the change thereof; and(c) a statement that if the bailor of the goods fails, within a period of 6 months beginning with the commencement of this Act, both to pay the sum due to the bailee by way of his charges in relation to the goods and to take delivery of the goods or give directions as to their delivery they are liable to be sold in accordance with the provisions of this Act.(4) Subsection (1) does not apply in a case where, at any time during the period of 6 months beginning with the commencement of this Act a dispute arises between the bailor and the bailee by reason of either or both of the matters mentioned in section 6 (1) , and, in such a case, the foregoing sections of this Act apply in relation thereto, as they apply in a case where a dispute arises between the bailor and the bailee before the giving of the notice of the bailee's intention to sell the goods.
PART III - Disposal of Uncollected Goods Under Order of Court
12. Application by bailee for order to sell goods accepted for repair or treatment
(1) Where goods accepted pursuant to a bailment in relation to which Part II applies are ready for redelivery and the bailor –the bailee may make an application to a court for an order to sell the goods.(a) fails to pay or tender to the bailee his charges in relation to the goods; or(b) having paid to the bailee those charges, fails to take delivery of the goods or, if the terms of the bailment so provide, to give directions for their delivery –(2) An application may be made under subsection (1) whether or not the bailee is entitled to sell the goods under Part II , but, where such an application is made, the bailee's right to sell the goods under that Part ceases and determines.(3) A court shall not, on an application under this section, make an order for the sale of goods unless it is satisfied that the goods were ready for redelivery at least 6 months before the making of the application.
13. Application by bailee to sell goods accepted in other circumstances
(1) Where the bailee of goods that have been accepted by him pursuant to a bailment for reward (not being a bailment in relation to which Part II applies) has, by notice given to the bailor, required the bailor, subject to the payment to the bailee of his charges, to take delivery of the goods at or within the time specified in the notice in that behalf, and the bailor –the bailee may make an application to a court for an order to sell the goods.(a) fails to pay or tender to the bailee his charges in relation to the goods; or(b) having paid or tendered those charges, fails so to take delivery of those goods –(2) Where the bailee of goods that have been accepted by him pursuant to a bailment not for reward has, by notice in writing given to the bailor, required the bailor to take delivery of the goods at or within the time specified in the notice in that behalf and the bailor fails so to take delivery of the goods the bailee may make an application for an order to sell the goods.(3) A notice under subsection (1) or subsection (2) shall require the bailor to take delivery of the goods –(a) at a time specified in, or determined in accordance with, the contract of bailment; or(b) if the contract does not specify or make provision for the determination of the time when the goods are to be redelivered to the bailor or the time so specified or determined has passed, within such reasonable time as may be specified in the notice.(4) For the purposes of subsection (1) and subsection (2) the giving by the bailor, in accordance with the terms of the bailment of goods, of directions as to their delivery, shall be regarded as the taking of delivery of the goods by the bailor.(5) This section applies to goods notwithstanding that they were accepted before the commencement of this Act.
14. Power of court to make order for sale
(1) On an application under section 12 or section 13 in respect of any goods the court may make an order authorizing –(a) a sole applicant to sell the goods if they remain in his possession until he is entitled under this section to sell them; or(b) joint applicants to sell the goods if they remain in their possession, or in the possession of any of them, until they are entitled under this section to sell the goods.(2) An order for sale in respect of any goods made on an application under section 12 or section 13 (1) shall, if the bailor has not paid or tendered to the bailee the bailee's charges in respect of the goods, specify the amount that the court considers reasonable in respect of the bailee's charges.(3) An order for sale in respect of any goods may specify –(a) for the purposes of section 15 (6) (a) a rate of storage charged for those goods; and(b) for the purposes of section 15 (6) (b) , the amount that may be incurred in respect of the costs of, or in connection with, the sale of the goods.(4) Any order for sale in respect of any goods may specify the manner in which and the conditions subject to which the goods may be sold pursuant to the order.(5) An order for sale in respect of any goods shall prohibit the sale of the goods until the expiration of such period (being a period of not less than one month and not more than 6 months) after the date of the order as may be specified therein.(6) The power of a court to make an order for sale in respect of any goods is subject to the provisions of any agreement between the bailor and the bailee of the goods.
(1) A person in whose favour an order for sale is made in respect of any goods is, subject to the order and the provisions of this Act, entitled to sell the goods.(2) Except as otherwise provided in the order for sale, section 8 applies in respect of a sale of goods under this section as if the person in whose favour the order was made were a bailee entitled to sell the goods by virtue of section 4 .(3) An order for sale in respect of any goods does not affect the right of any person to recover the goods by an action commenced before the date of the sale.(4) If such an action as is referred to in subsection (3) is commenced before the date of the sale the right under the order to sell the goods shall not be exercised until the action is heard and determined, or otherwise disposed of, and if in that action an order is made for the recovery of the goods from the person in whose favour the order for sale was made, that person's right to sell the goods under the order is extinguished.(5) For the purposes of this section an action shall be deemed not to have commenced until a writ or summons, or other originating process, in the action has been served on the party from whom it is sought to recover the goods or any proceeding authorized to be taken in place of the service of that writ, summons, or other originating process on that party has duly been taken.(6) Where goods are sold under an order for sale the person authorized to sell the goods under the order is entitled to make the following subsidiary charges, that is to say:(a) A reasonable charge for storing the goods during the period beginning with the date of the order for sale and ending with the date of the sale, not exceeding a charge at the rate, if any, specified in the order under paragraph (a) of subsection (3) of section 14 ;(b) Any costs of, or in connection with the sale, not exceeding the costs, if any, specified in the order under paragraph (b) of that subsection; and(c) The cost, if any, of insuring the goods during the period referred to in paragraph (a) of this subsection.
16. Procedure after sale under this Part
(1) Where goods are sold under an order for sale, the amount by which the gross proceeds of sale exceed the aggregate of –is recoverable as a debt due to the bailor by the person authorized to sell the goods, and any amount by which that aggregate exceeds the gross proceeds of the sale is recoverable, as a debt due to the person authorized to sell the goods by the bailor.(a) the amount specified in the order pursuant to section 14 (2) ;(b) the amount of the subsidiary charges specified in section 15 (6) ; and(c) the amount of so much of any costs awarded to the person authorized to sell the goods in respect of the application for the order for sale that are not otherwise recovered –(2) Where goods are sold under an order for sale the person authorized by the order to sell the goods shall, before the expiration of a period of 7 days beginning with the date of the sale of the goods, prepare a record in relation to the goods containing the following particulars, that is to say:and shall, before the expiration of the period of 14 days beginning with the date of the sale of the goods, lodge a copy of the record with the clerk of the court in which the order for sale was made.(a) A reference to the order authorizing the sale of the goods;(b) The method, date, and place of the sale;(c) Where the goods are sold by public auction, the name and principal place of business of the person who conducted the auction, and, where they are sold otherwise than by public auction, the name and address of the buyer;(d) The amount of the gross proceeds of sale; and(e) A statement of each of the items that constitute the amounts referred to in subsection (1) and the transactions to which each suchitem relates –(3) A person who had, or claims to have had, at the time of the sale of the goods under the order for sale, an interest in the goods is entitled to inspect a copy of the record in relation to the goods lodged with the clerk of a court under this section.(4) A person who –is guilty of an offence.(a) fails to comply with any of the provisions of subsection (2) ; or(b) lodges a document for the purposes of that subsection that, to his knowledge, is false in a material particular –
PART IV - Miscellaneous and Supplemental
17. Application of surplus proceeds of sale
(1) Where any sums are recoverable by a bailor under section 9 or section 16 and, within the period of 12 months of becoming so recoverable, they have not been paid to him, the person from whom they are so recoverable shall on the expiration of that period deposit them with the Treasurer.(2) A person who deposits any sum with the Treasurer under subsection (1) shall, at the same time, furnish to the Treasurer a copy of the record required to be made under section 9 or section 16 in respect of the sale of the goods from which the sum arose.(3) Subject to subsection (4) , a person who is entitled to recover any sum referred to in subsection (1) that is deposited with the Treasurer under that subsection has the like rights against the Treasurer in respect of the recovery of that sum as he had against the person by whom they were so deposited.(4) The Treasurer may pay any sum deposited with him under this section to a person appearing to him to be entitled thereto and if any sum is so paid the rights of any other person in respect of the recovery of that sum from the Treasurer are extinguished.(5) A person who –is guilty of an offence.(a) being required on the expiration of the period referred to in subsection (1) to deposit any sum with the Treasurer, fails within 1 month of the expiration of that period, so to deposit that sum;(b) fails to comply with the provisions of subsection (2) ; or(c) furnishes for the purposes of that subsection a document that to his knowledge is false in any particular –
(1) The buyer of any goods sold by virtue of the provisions of this Act acquires a good title if he buys them in good faith and without notice –(a) of any failure by the seller to comply with any of the provisions of this Act; and(b) in the case of goods the subject of a bailment, of any defect or want of title in the bailor.(2) In any proceedings by or against the seller of any goods sold by virtue of the provisions of this Act, the burden of proving that the provisions of this Act relating to the sale of those goods have been complied with lies on the seller.
19. Procedure for applications to court
(1) A person desiring to make an application to a court under this Act shall lodge notice of his intention to make the application with the clerk thereof.(2) Subject to this section, a court shall not hear an application under this Act unless it is satisfied that a copy of the notice of the intention to make the application lodged under subsection (1) has been served upon such persons as appear to the court to be affected by the application.(3) Where the copy of a notice referred to in subsection (2) of this section has not been served on a person but the court is satisfied, by evidence on oath, that every reasonable effort has been made to serve a copy of that notice on him, it may, nevertheless, proceed to hear and determine the application.(4) Where the court is satisfied, by evidence on oath, that the identity of a person who appears to the court to be affected by such an application as is referred to in subsection (1) is not known and all reasonable steps that can be taken to establish his identity have been taken, it may proceed to hear and determine the application notwithstanding that a copy of the notice referred to in that subsection has not been served on him.
20. Costs in respect of applications to court
On the determination of an application to a court under this Act the court may make such order with respect to costs as it considers just and reasonable, and the costs awarded to any person in respect of any such application may be recovered by him as a debt due from the person against whom they were awarded, except in so far as they are otherwise recovered or accounted for under any other provision of this Act.
A notice or other document required or authorized to be given or served under this Act shall be in writing, and may be given –(a) by delivering it to the person to whom it is required or authorized to be given or served;(b) by leaving it for him at his usual or last-known place of abode or business with some other person who is apparently an inmate thereof or employed thereat, and who has apparently attained the age of 16 years; or(c) by sending it by registered post addressed to him at his usual or last known place of abode or business.
The powers conferred on a person by this Act are in addition to and not in derogation of any powers otherwise exercisable by him.
A person who is guilty of an offence under this Act is liable to a fine not exceeding 10 penalty units or to imprisonment for a term not exceeding 3 months or to both such penalty and imprisonment.
The Governor may make regulations for the purposes of this Act.