Bills of Sale Act 1900

Bills of Sale Act 1900

An Act to consolidate and amend the law relating to bills of sale

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:

1.   Short title

[Section 1 Amended by 25 Geo. V No. 78 ]This Act may be cited as the Bills of Sale Act 1900 .

2.   Commencement

[Section 2 Amended by 25 Geo. V No. 78 ]This Act shall come into operation on 1st January 1901.

3.   

4.   Interpretation

(1)  [Section 4 Subsection (1) amended by 25 Geo. V No. 78 ][Section 4 Subsection (1) amended by No. 36 of 1958, s. 4 and Sched. 3 ][Section 4 Subsection (1) amended by No. 19 of 1969, s. 2 ][Section 4 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 4 Subsection (1) amended by No. 1 of 1987, s. 4 ]In this Act, unless the contrary intention appears –

bill of sale includes bills of sale, assignments, transfers, declarations of trust without transfer, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt; but shall not include the following documents, that is to say: Assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any registered ship or any share thereof, transfers of personal chattels in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, warehouse-keepers' certificates, warrants, or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize (either by endorsement or by delivery) the possessor of such document to transfer or receive goods thereby represented;

Commissioner means the Commissioner for Corporate Affairs holding office under section 4 of the Commissioner for Corporate Affairs Act 1980 , and includes any person holding that office in an acting capacity;

Court means the Supreme Court or any of the judges thereof sitting in chambers;

crops includes wheat, barley, oats, maize, and grass, whether for hay or for grain, and all cereal and root crops and fruit;

personal chattels means goods, stock-in-trade, furniture, and other articles capable of complete transfer by delivery, including stock of every description and their produce and progeny, and also wool growing on sheep wherever assigned or charged separately from the sheep, and also, when separately assigned or charged, fixtures, but shall not include chattel interests in real estate, nor fixtures when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they grow, nor shares or interests in the stock funds or securities of any Government, or of any local or corporate body, nor shares or interests in the capital or property of any company or other corporate body, nor debentures or interest coupons issued by any Government or by any local or corporate body, nor choses in action nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement between the landlord and the tenant of such farm or lands ought not to be removed from any farm or lands where the same are at the time of making or giving of such bill of sale;

registered ship means a ship registered under the Imperial Act known as the Merchant Shipping Act 1894 as amended from time to time;

registration, in relation to a bill of sale, means the lodging with the Commissioner of the original or a copy of the bill of sale, together with the statutory declaration or statutory declarations required by section 6 (1) to be lodged with that original or copy;

stock includes any sheep, cattle, horses, mules, asses, pigs, and poultry.

(2)  [Section 4 Subsection (2) inserted by No. 36 of 1958, s. 4 and Sched. 3 ]For the purposes of this Act, personal chattels shall be deemed to be in the apparent possession of a person who makes or gives a bill of sale so long as they –

(a) remain in, upon, about, or are used in connection with, any house, mill, warehouse, building, works, yard, land, or other premises occupied by that person; or

(b) are used and enjoyed by that person in any place, notwithstanding that formal possession of the personal chattels may have been taken by, or given to, some other person.

(3)  [Section 4 Subsection (3), formerly (2), added by 25 Geo. V No. 78 ][Section 4 Subsection (3) renumbered by No. 36 of 1958, s. 4 and Sched. 3 ][Section 4 Subsection (3) amended by No. 9 of 1982, s. 7 and Sched. 1 ][Section 4 Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] Nothing in this Act or any Act hereby repealed shall apply or be deemed to have applied to any –

(a) debenture issued by any incorporated company (wherever incorporated) and secured upon the capital, stock, goods, chattels, effects, rights, claims, and property of such company; or

(b) trust deed, mortgage deed, or other deed or instrument for securing any such debentures –

or to any document which, but for this sub-section, would be a bill of sale if it were not also a charge to which Chapter 2K of the Corporations Act applies.

4A.   

5.   Bill of sale void unless registered

[Section 5 Subsection (1) amended by No. 32 of 1983, s. 4 ][Section 5 Subsection (1) amended by No. 1 of 1987, s. 5 ]

(1)  [Section 5 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ]Subject to subsection (2) , every bill of sale of personal chattels made after the commencement of this Act, whether absolute or conditional, and whether subject or not to any trusts, and whereby the grantee or holder thereof shall have power at any time after the expiration of 14 days following the service by him of a notice on the grantor informing him that the grantee intends to do so, to seize or take possession of the personal chattels comprised in or made subject to such bill of sale, shall be registered under this Act with the Commissioner within 21 days after the making or giving of such bill of sale, or within such further time as shall be allowed as hereinafter mentioned; otherwise such bill of sale shall be null and void to all intents and purposes whatsoever, so far as respects the personal chattels comprised in such bill of sale.

(2)  [Section 5 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ] Subsection (1) shall not apply to a bill of sale of personal chattels which shall be absolutely and bona fide taken out of the possession and out of the apparent possession of the person making or giving such bill of sale before the expiration of 21 days after the making or giving of such bill of sale, or to a transfer or assignment of a bill of sale.

5A.   Registered bill of sale void unless registered under Motor Vehicles Securities Act 1984

[Section 5A Inserted by No. 45 of 1984, s. 4 ]

(1)  [Section 5A Subsection (1) amended by No. 1 of 1987, s. 6 ]A bill of sale relating, or partially relating, to a motor vehicle or trailer registered under this Act is void to the extent to which it relates to the motor vehicle or trailer unless the grantee of that bill of sale is registered as the holder of a security interest in respect of that motor vehicle or trailer under the Motor Vehicles Securities Act 1984 .

(2)  [Section 5A Subsection (2) substituted by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] For the purposes of subsection (1)  –

motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ;

trailer has the same meaning as in the Vehicle and Traffic Act 1999 .

6.   Provisional and full registration

[Section 6 Substituted by No. 32 of 1983, s. 5 ]

(1)  [Section 6 Subsection (1) substituted by No. 1 of 1987, s. 7 ]The grantor or grantee of a bill of sale shall, within 21 days after the date of the execution of the bill of sale, lodge or cause to be lodged with the Commissioner –

(a) the original or a copy of the bill of sale and of any schedule or inventory annexed to or referred to in the bill of sale;

(b) if a copy of the bill of sale is so lodged, a statutory declaration verifying that the copy is a true copy of the bill of sale; and

(c) a statutory declaration by the grantor or grantee in the prescribed form verifying the particulars of the bill of sale.

(2)  On receipt of the documents referred to in subsection (1) , the Commissioner shall provisionally register the bill of sale.

(3)  Provisional registration under subsection (2) shall become absolute 15 days after the date of the provisional registration unless an objection in accordance with section 11 is lodged within that time.

7.   When subject to defeasance, &c., not contained therein, and when collateral to another mortgage

(1)  [Section 7 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 7 Subsection (1) amended by No. 1 of 1987, s. 19 and Sched. 1 ]Subject to subsection (2) , if any bill of sale shall be made or given subject to any defeasance or condition or declaration of trust not contained in the body thereof, such defeasance or condition or declaration of trust shall, for the purposes of this Act, be deemed and taken to be part of such bill of sale, and shall be written on the same paper or parchment on which such bill of sale shall be written before the registration thereof, and shall, if a copy of such bill of sale shall be lodged as aforesaid, be truly set forth in such copy as part thereof; otherwise the registration of such bill of sale shall be null and void.

(2)  [Section 7 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ]Where the bill of sale is given by way of collateral or concurrent security with any other mortgage or security over property of any description, the provisions of this section shall be deemed to have been complied with if such other mortgage or security is recited or referred to in the said bill of sale as a collateral or concurrent security therewith, and that notwithstanding the amount secured by the said other mortgage or security, or the time for redemption therein mentioned, or any one or more of the terms, conditions, and provisions or other matters therein contained may be different from those respectively secured by, mentioned, and contained in the said bill of sale. The recital of, or reference to, the said other mortgage or security shall contain at least the nature of the instrument, date, parties, brief description of the property, the amount of principal and interest secured, and times of payment thereof.

8.   Avoidance of duplicate bills of sale

Where a subsequent bill of sale is executed within or on the expiration of 21 days after the execution of a prior unregistered bill of sale, and comprises all or any part of the personal chattels comprised in such prior bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is secured by the prior bill of sale, or for any part of such debt, it shall, to the extent to which it is a security for the same debt or part thereof, and so far as respects the personal chattels or part thereof comprised in the prior bill of sale, be absolutely void, unless it is proved to the satisfaction of the Court having cognizance of the case that the subsequent bill of sale was bona fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading this Act.

9.   

10.   

11.   Right of certain persons to object

[Section 11 Substituted by No. 32 of 1983, s. 8 ]

(1)  An interested person may, within 15 days after the day on which a bill of sale is registered in the office of the Commissioner, lodge in that office an objection to that registration.

(2)  For the purposes of subsection (1) , an interested person means –

(a) a creditor of a person making or giving a bill of sale whose debt is not less than $100;

(b) a group of creditors whose joint debts are not less than $250; or

(c) a person claiming ownership or other interest in the chattels assigned by the bill of sale.

(3)  [Section 11 Subsection (3) amended by No. 51 of 1985, s. 4 and Sched. 2, Pt. I ]An objection referred to in subsection (1) shall be in accordance with the prescribed form and shall be lodged in triplicate.

12.   Commissioner to notify grantor and grantee of bill of sale of objection

[Section 12 Substituted by No. 32 of 1983, s. 9 ]

(1)  [Section 12 Subsection (1) substituted by No. 1 of 1987, s. 8 ]On receipt of an objection lodged in accordance with section 11 , the Commissioner shall send a copy of that objection to the grantor of the bill of sale to which the objection relates and to the grantee of that bill of sale, at the respective addresses of that grantor and that grantee contained in the documents lodged pursuant to section 6 (1) .

(2)  A person who receives, pursuant to subsection (1) , a copy of an objection, or the grantee of the bill of sale to which the objection relates, may summon the objector before the Court to show cause why his objection should not be removed.

(3)  On the return of a summons issued under subsection (2) , the Court shall hear and determine whether the objector is a creditor of any person named in the objection as being indebted to him, or is entitled to the ownership of, or an interest in, the chattels assigned by the bill of sale.

(4)  For the purposes of subsection (3) , a person to whom any person making or giving a bill of sale is indebted on any account whatsoever, at law or in equity, on the balance of account or otherwise, and whether the debt is due or will accrue due, secured or unsecured, shall be deemed to be a creditor.

(5)  Notwithstanding the preceding provisions of this section, the Court may, if it is of the opinion that the security held by a secured creditor is sufficient to satisfy his debt or claim, order the removal of the objection.

[Section 12 Subsection (1) substituted by No. 1 of 1987, s. 8 ]

13.   Power of Court in relation to objection

[Section 13 Substituted by No. 32 of 1983, s. 10 ]

(1)  On hearing a summons issued under section 12 , the Court may –

(a) order that the provisional registration of the bill of sale be cancelled;

(b) order that terms imposed by the Court be complied with before the provisional registration becomes absolute; or

(c) order that the objection be removed.

(2)  An order made under subsection (1) shall be served on the Commissioner, who shall ensure that the order is complied with.

14.   Withdrawal or removal of objection

[Section 14 Substituted by No. 32 of 1983, s. 11 ]

(1)  An objector may withdraw his objection at any time by signing and lodging an application in accordance with the prescribed form.

(2)  If, after satisfaction of his debt or claim together with his reasonable costs of lodging and withdrawing his objection, the objector refuses to withdraw his objection, the person giving or making the bill of sale may summon the objector before the Court to show cause why the objection should not be removed.

(3)  On hearing a summons issued under subsection (2) , the Court may order the removal of the objection.

(4)  An order made under subsection (3) shall be served on the Commissioner, who shall ensure that the order is complied with.

15.   

16.   Costs and compensation

[Section 16 Substituted by No. 32 of 1983, s. 13 ]

(1)  On hearing a summons under this Act, the Court may make any order as to costs that it thinks fit.

(2)  On hearing a summons under this Act, the Court may order a person who –

(a) lodges an objection to registration of a bill of sale without reasonable cause; or

(b) unreasonably refuses to withdraw his objection –

to pay to the person making or giving that bill of sale any sum by way of compensation that the Court thinks fit.

17.   Power of Magistrates Court (Civil Division), &c., to exercise certain powers of Court

[Section 17 Amended by 25 Geo. V No. 78 ][Section 17 Amended by No. 32 of 1983, s. 14 ][Section 17 Amended by No. 73 of 1993, Sched. 1, Applied:30 Mar 1998] All the powers conferred upon the Court by sections 12 , 13 , 14 , and 16 may be exercised by the Magistrates Court (Civil Division) if an action may be brought in that court by any person or persons lodging an objection under section 11 , or any one or more of such persons, for the recovery of the debt or debts, or any one of the debts, or of the trial of the claim, in respect of which that objection shall have been lodged.

18.   Renewal of registration of bill of sale

[Section 18 Amended by No. 1 of 1987, s. 9 ]The registration of a bill of sale made or given by way of security for the payment of money shall, during the subsistence of such security, be renewed in manner hereinafter mentioned once at least every 4 years commencing from the date of such registration; and if a period of 4 years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void, and such bill of sale shall cease to be of any effect whatsoever.

19.   Mode of renewal

[Section 19 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 19 Amended by No. 1 of 1987, s. 10 ]The registration of a bill of sale shall be renewed by the grantor or grantee lodging with the Commissioner a statutory declaration in the prescribed form stating the date of such bill of sale, and the names and places of business or residence of the respective parties thereto, as stated therein, and also the date of the registration of such bill of sale, and that such bill of sale is still a subsisting security, and for what amount.

20.   

21.   

22.   Property not deemed in possession of grantor upon bankruptcy

Personal chattels comprised in or subject to a bill of sale which has been and continues to be duly registered under this Act shall not, in the event of the bankruptcy or liquidation by arrangement of the affairs of the maker or giver of such bill of sale, be deemed to be in the possession, order, or disposition of the maker or giver of such bill of sale.

23.   

24.   Register to be kept

[Section 24 Subsection (1) amended by No. 32 of 1983, s. 17 ][Section 24 Subsection (1) amended by No. 1 of 1987, s. 13 and s. 19 and Sched. 1 ]

(1)  [Section 24 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ]The Commissioner shall keep in his office a book (in this Act called the "register"), and shall, upon the lodging of any bill of sale or a copy thereof under this Act, make an entry in such register in accordance with the prescribed form of the name and place of business or residence of the person by whom the bill of sale was made or given and the other particulars shown in that form; and shall number every such entry consecutively according to the time of the lodging of the bill of sale or copy of the bill of sale to which such entry relates, and shall mark with a corresponding number the lodged original or copy of such bill of sale.

(2)  [Section 24 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ]On the lodging of a statutory declaration for the renewal of the registration of a bill of sale the like entry shall be made in the register, with the addition of the date and number of the original registration of the same bill of sale, and that statutory declaration and also the bill of sale or copy bill of sale originally lodged shall be thereupon marked with the number assigned to the entry of such renewal of registration.

(3)  [Section 24 Subsection (3) amended by No. 9 of 1982, s. 7 and Sched. 10 ]No person shall incur any liability as for defamation by publishing a correct copy of or an extract from or abstract of the register.

25.   Index of grantors

[Section 25 Subsection (1) amended by No. 32 of 1983, s. 18 ][Section 25 Subsection (2) amended by No. 1 of 1987, s. 14 ]

(1)  [Section 25 Subsection (1) amended by No. 9 of 1982, s. 7 and Sched. 10 ]The Commissioner shall keep an index of the names of persons by whom bills of sale shall have been made or given with reference to the entries in the register of the bills of sale made or given by each such person.

(2)  [Section 25 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ]The index referred to in subsection (1) shall be arranged in divisions corresponding with the letters of the alphabet, so that all persons whose surnames begin with the same letter (and no others) shall be comprised in one division; but the arrangement within each division need not be strictly alphabetical.

26.   Receipt to be endorsed on copy of bill of sale

[Section 26 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 26 Amended by No. 1 of 1987, s. 15 and s. 19 and Sched. 1 ]Upon the lodging of a bill of sale or a true copy thereof under this Act, the Commissioner or other proper officer shall endorse on the original bill of sale or a true copy thereof, if presented to him for the purpose, a memorandum in which shall be specified the day when the said bill of sale or a copy thereof was lodged, and the Commissioner or other proper officer shall then attach his signature to the said memorandum; and every such memorandum so endorsed and signed shall be taken and allowed as evidence of the registration of such bill of sale; and if any person shall object thereto the onus of proof shall rest upon the person so objecting.

27.   Office copies of bills of sale, &c.

[Section 27 Amended by No. 55 of 1965, s. 5 ][Section 27 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 27 Amended by No. 32 of 1983, s. 19 ][Section 27 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]Any person shall be entitled to have an office copy of or extract from any bill of sale, copy bill of sale, or statutory declaration lodged with the Commissioner under the provisions of this Act upon paying for the same the sum of 5 cents per folio of 72 words.

28.   Search

[Section 28 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 28 Amended by No. 32 of 1983, s. 20 ][Section 28 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]Any person shall be entitled at all reasonable times to search the register and every bill of sale, copy bill of sale, and statutory declaration lodged with the Commissioner, on paying to the Commissioner the fee prescribed by section 46 .

29.   Satisfaction to be registered

[Section 29 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 29 Amended by No. 32 of 1983, s. 21 ][Section 29 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]Upon the satisfaction of any registered bill of sale there shall be lodged with the Commissioner a certificate of satisfaction, in accordance with the prescribed form, signed by the person entitled to discharge such bill of sale, and the Commissioner shall thereupon enter a memorandum of satisfaction in the register, and upon the lodged original or copy of the bill of sale which has been so satisfied; and it shall be lawful for the Court to order a memorandum of satisfaction to be entered in the register and upon the lodged original or copy in respect of any registered bill of sale if it shall appear to the Court that the debt (if any) for which such bill of sale was made or given as security has been satisfied or discharged.

30.   Satisfaction or reloan to be registered

[Section 30 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 30 Amended by No. 32 of 1983, s. 22 ][Section 30 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]Upon the full or partial satisfaction of any bill of sale made before or after the commencement of this Act (such partial satisfaction being equal to not less than one-fourth of the total principal moneys for the time being remaining secured by such bill of sale) there shall be lodged with the Commissioner, within 14 days from the date thereof, a certificate of satisfaction, in accordance with the prescribed form, signed by the then grantee or holder of such bill of sale, and the Commissioner shall thereupon cause a memorandum of such full or partial satisfaction, as the case may be, to be written upon such bill of sale or a copy thereof; and if at any time after any such partial satisfaction as aforesaid any sum be again lent on the security of any bill of sale, there shall be lodged with the Commissioner, within 14 days of such reloan a certificate of reloan in accordance with the prescribed form, signed by the then grantee or giver of such bill of sale, and the Commissioner shall thereupon cause a memorandum of such sum so again lent to be written upon such bill of sale or a copy thereof; and in the event of the Commissioner refusing or neglecting to cause any such memorandum to be written as aforesaid, it shall be lawful for a judge in chambers to order a memorandum of such full or partial satisfaction or of such sum so again lent, as the case may be, to be written upon any bill of sale or copy thereof respectively as aforesaid, if it shall appear to the said judge that the whole or not less than such proportion as aforesaid of the debt (if any) for which such bill of sale is given as security shall have been satisfied or discharged, or that such sum has been so again lent as aforesaid.

31.   Power of creditor to apply to judge for registration of satisfaction

[Section 31 Amended by 25 Geo. V No. 78 ][Section 31 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]If any creditor or creditors other than the grantee or any person or persons claiming through him of the grantor of any bill of sale made before or after the passing of this Act shall have reason to suspect that such certificate of satisfaction or reloan, as the case may be, as in section 30 is mentioned, has not been lodged as therein directed, such creditor or creditors may apply, by summons or otherwise, in a summary manner, to a judge of the Supreme Court to determine such question, and such judge may examine the parties to such bill of sale or other witnesses upon oath, and may make such order with respect to the question in dispute, and as to the costs of and consequent on the application, as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the question in dispute to be made in such manner as he shall think fit; and the decision of such judge shall be final.

32.   Rectification of register

[Section 32 Amended by 25 Geo. V No. 78 ][Section 32 Amended by No. 1 of 1987, s. 19 and Sched. 1 ]Any judge of the Supreme Court, on being satisfied that the omission to effect the registration of a bill of sale or to lodge a statutory declaration renewing the registration of a bill of sale within the time prescribed by this Act, or the omission or misstatement of the name or the place of business or residence of any person was accidental or due to inadvertence, may, in his discretion, order such omission or misstatement to be rectified by the insertion in the register of the true name, or the true place of business or residence, or by extending the time for the registration of such bill of sale, or for lodging a statutory declaration for renewing the registration of such bill of sale on such terms and conditions (if any) as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct.

33.   Power of Court to decide construction of bill of sale

[Section 33 Amended by 25 Geo. V No. 78 ][Section 33 Amended by No. 18 of 2008, s. 9, Applied:26 Jun 2008] The Court may, on the application of any party to any bill of sale, decide any question of law arising between the parties thereto or any of them with regard to the construction of the bill of sale or any provisions thereof, or the rights thereunder of any party thereto. All orders made by a judge shall be subject to review by the Full Court upon appeal by any person affected thereby. Rules shall be made by the judges, or a majority of them, for defining the practice to be followed in making such applications, and until rules are made and published the practice relating to summary applications in chambers shall be followed.

34.   Stock to be described

In any bill of sale comprising stock, the stock therein comprised shall be described or referred to therein by some brand or brands, or other mark or marks on such stock, or shall be otherwise described or referred to by sex, age, name of breed, colour, or otherwise, so as to be reasonably capable of identification, and the land or premises on which such stock are shall be described or mentioned in such bill of sale; otherwise the same shall be void so far as regards such or so much of such stock as may not be so described or referred to, or be otherwise reasonably capable of identification: Provided that in any bill of sale over stock on any station or farm such stock shall be sufficiently identified by reference to the places where the same are usually depasturing.

35.   Bill of sale of stock to include progeny

[Section 35 Amended by 25 Geo. V No. 78 ]A bill of sale comprising stock shall, unless the contrary be expressed therein, be deemed to include not only the stock comprised therein, as provided by section 34 , but also the increase of such stock, and all stock the property of the grantor branded or marked, or which shall have been or be branded or marked, with the brand or mark specified in the bill of sale which the grantor shall have covenanted by such bill of sale to so brand or mark, and which shall, after the execution of such bill of sale during the continuance of the security, be depasturing, or be at, in, or upon any lands or premises mentioned in such bill of sale.

36.   Bill of sale over wool

A bill of sale, by way of security, may be granted over the wool of the then next ensuing clip to be shorn from the sheep described or referred to therein and then depasturing upon the lands mentioned therein, and shall entitle the grantee thereof to the wool of such sheep, not only while growing, but afterwards when shorn from the sheep, and wherever the same may be.

37.   Bill of sale of sheep not affected by subsequent dealing

No subsequent sale, bailment, mortgage, or other encumbrance of the sheep mentioned in any such bill of sale shall prejudicially affect such bill of sale or the rights of the grantee thereof to the wool specified or referred to therein.

38.   Form of security

[Section 38 Amended by No. 32 of 1983, s. 23 ]Any such bill of sale may be in accordance with the prescribed form.

39.   Bill of sale over mortgaged sheep

It shall be lawful for the grantor of any bill of sale, by way of security over sheep, but only with the consent in writing of the grantee thereof, and to the extent authorized by such consent, to give a valid security as aforesaid on the next ensuing clip of the wool of such sheep.

40.   Implied covenants in all bills of sale

There shall be implied in every bill of sale the following covenants on the part of the grantor thereof, and such implied covenants shall have the same effect as if the same had respectively been set forth in such bill of sale at length, except so far as therein modified:

(a) That the grantor has good right and full power to assign the chattels purported to be herein assigned unto the grantee as is herein mentioned, and that free and clear from all encumbrances other than such as are herein mentioned;

(b) That the grantee shall and may exercise the powers and authorities hereby conferred, or intended so to be, without any lawful interruption or disturbance from the grantor or any person or persons whomsoever;

(c) That the grantor will, at the cost of the grantee (unless this instrument is by way of security, and then at the cost until sale of the grantor and thereafter of the person requiring the same), do and execute all such acts, deeds, matters, and things for further or more perfectly assuring the chattels hereby assigned or intended so to be unto the grantee or such other person as aforesaid, or for enabling the grantee or such other person to obtain possession of the same, as by the grantee or such other person may from time to time be reasonably required, and will not do or suffer anything whereby the said chattels or any of them shall or may be prejudicially affected.

41.   Additional implied covenants in bills of sale by way of security

[Section 41 Amended by 25 Geo. V No. 78 ][Section 41 Amended by No. 1 of 1987, s. 16 ]In addition to the covenants implied under section 40 , there shall be implied in every bill of sale by way of security the following covenants, provisos, agreements, and powers, or such of them as are applicable thereto, and such implied covenants, provisos, agreements, and powers, subject to any modification thereof, shall have the same effect as if the same had respectively been set forth in such bill of sale at length, except so far as therein modified:

(a) That the grantor will pay to the grantee the principal and other moneys and interest hereby secured after the rate and at the times herein mentioned without any deduction whatsoever;

(b) That the grantor will also pay interest on any further advances which may be secured by this instrument computed from the time of the same being made respectively, at the rate and on the dates mentioned for the payment of interest in this instrument;

(c) That the grantor will not, at any time while any moneys shall remain owing on this security, do or allow any act or deed whereby the chattels hereby assigned shall or may become prejudicially affected, and will, at all times while any moneys remain due on this security, duly pay all rents, rates, taxes, and other charges and outgoings from time to time coming due or payable in respect of any lands, houses, or buildings on which any of the chattels hereby assigned may for the time being be situated; and will from time to time, at the grantee's request, produce to him the receipt for every such payment, or furnish him with reasonable proof that such payments have been made;

(d) That, until the grantor shall make default in the payment of any of the principal, interest, or other moneys hereby secured, or in the observance or performance of any covenant, condition, or agreement herein expressed or implied and on his part to be observed and performed, it shall be lawful for the grantor to retain possession and use of the chattels hereby assigned;

(e) That the grantor will not, while in possession as aforesaid, remove, or suffer to be removed, any of the movable portion of the chattels hereby assigned from where they now are, without the consent of the grantee, except for necessary repairs, or for the purpose of substituting other property of the same kind in their place of equal or greater value, or except in the ordinary course of business;

(f) That the grantor will, at all times while any money shall remain owing on this security, keep and maintain all and singular the chattels hereby assigned in good order and condition; and, if any of the same shall be damaged, lost, or destroyed, or cease to exist, will repair such damage or replace the chattels so destroyed or which have ceased to exist with others of a like value and nature; and, further, shall and will, if required so to do by the grantee, execute such instrument as may be necessary to give to the grantee security over the chattels replacing the chattels hereby assigned which have been destroyed or ceased to exist;

(g) That the grantee or any person authorized in writing by him shall be at liberty at all reasonable times to enter upon any premises occupied by the grantor for the purpose of inspecting the chattels hereby assigned and the state and condition thereof, and of taking schedules and inventories of the same, and for all other reasonable purposes connected with this security;

(h) That the giving by the grantor to the grantee of any bill of exchange or promissory note for the whole or any part of the money hereby secured shall not, until such bill or note be honoured or met, be considered as payment of or on account of the moneys secured by this instrument, or in any way affect or alter the rights or powers of the grantee by virtue of this instrument; and no promissory note or bill of exchange, which before, at, or any time after the execution of this instrument may be given by the grantor to the grantee for the whole or any portion of the moneys hereby secured, or the remedy thereon of the grantee or of the holder thereof, shall merge in the covenants hereby expressed or implied;

(i) That it shall be lawful for, and the grantor doth hereby expressly authorize and license the grantee, either personally or by or with his agents or servants, at any time after the expiration of a period of 14 days following the service by the grantee of a notice of default on the grantor, without any further consent by the grantor, and notwithstanding any acceptance of any payment of any money due on this security, and either before or after the principal, interest, or other moneys intended to be hereby secured or any part thereof respectively, shall have become payable, or before or after default shall have been made in the observance or performance of any of the covenants, conditions, or agreements herein expressed or implied, and on the grantor's part to be observed and performed, to take possession of all and singular or any part of the said chattels, and either to remove, take, and carry away the same, or any of them, or to remain in possession thereof without removing the same, and also to relinquish possession thereof, and again, after the expiration of a period of 14 days following the service of a further notice of default by the grantee on the grantor, to retake and retain possession thereof, and make any fresh demand or demands without in any way invalidating or prejudicing this security; and for the purposes aforesaid or any of them, or for any purposes connected therewith, to have full liberty of ingress, egress, and regress to and from any land, house, or other buildings or premises in or upon which any of the said chattels shall then be or be supposed to be; and for all or any of the purposes aforesaid to break open any outer or inner doors, windows, gates, fences, or other obstructions without any legal process whatsoever; and that the grantee or any agent or servant as aforesaid shall not be deemed or considered a trespasser or trespassers in consequence of exercising all or any of the powers hereinbefore granted or contained, and this deed may be pleaded in bar, and shall be deemed and taken to be a good defence to any action or other proceeding that may be had or taken against the grantee or any agent or servant as aforesaid for any act done in relation to or by virtue of these presents; and that if default shall be made in payment of any of the moneys hereby secured, or any part thereof, on the day on which or at the time at which the same ought to have been paid according to the terms hereof or for the space of 24 hours after payment thereof shall have been demanded by and on behalf of the grantee (in case the said moneys shall be made payable on demand), or in the observance or performance of any of the covenants, conditions, or agreements herein expressed or implied, and on the grantor's part to be observed and performed, then and in such case it shall be lawful for the grantee, without any further consent on the part of the grantor, to sell the said chattels or any of them, together or in lots, and either by public auction or private contract, at such price or prices and upon and subject to such terms and conditions as he may think fit, with liberty for the grantee to buy in the said chattels or any part thereof at any sale by auction, and to rescind or vary the terms of any contract for sale, and to re-sell the chattels so bought in or the contract for the sale whereof has been rescinded as aforesaid, without being answerable for any loss or expense or diminution in price, and with liberty also upon any such sale to give time for the payment of the purchase-money or any part thereof, either with or without security, and also to execute any bills of sale or other assurances, and to give effectual receipt for any purchase-money so that the receipt of the grantee or his agent shall be a sufficient discharge to any person at such sale for any of the purchase-money, and to execute all such assurances, and to do all such other acts, matters, and things for effectuating and completing any such sale as may be necessary and proper, or as the grantee may think fit. And upon any sale purporting to be made in exercise of the powers herein expressed or implied, no purchaser shall be bound or concerned to see or inquire whether any such default has been made as aforesaid or otherwise as to the propriety or regularity of any such sale, or be affected by notice, express or constructive, that no such default has been made as aforesaid, or that any such sale is otherwise improper, irregular, or unnecessary. And the grantee shall stand possessed of the proceeds of any such sale upon trust after paying thereout the costs, charges, and expenses of and incidental to such taking possession and sale and otherwise incurred in relation to this security, to apply the same in reduction of the moneys then owing on the security of this instrument, including all moneys herein covenanted to be paid, notwithstanding that the same may not then have become due, and any promissory notes or bills of exchange that may then be current for the same, and to pay the balance (if any) to the grantor.

42.   Meaning of abbreviated expressions in bills of sale

Such of the following expressions as shall be used in any bill of sale, or inany of the covenants, powers, provisos, or agreements implied therein, shall have the meaning by this section given to the same, unless modified by or inconsistent with the bill of sale:

(a) The words upon demand shall mean upon demand being made by notice in writing signed by the person entitled to make the demand, or any duly authorized agent or clerk or servant of his, and served upon the person upon whom the demand is to be made either personally or left at or affixed to or posted in a duly registered letter addressed to him at his usual or last-known place of abode or business in Tasmania, or by one advertisement in some newspaper for the time being published nearest to the place where the chattels are or are supposed to be, or to the last-known place of abode of the grantor; and, in the case of the notice being served by post as aforesaid, the demand shall be deemed made when such letter would arrive in the ordinary course of post; and after the decease of the person upon whom the demand would, if living, be made, a notice left at or affixed to the last or last-known place of abode or business in Tasmania of the deceased, and addressed generally to his personal representatives, or by advertisement as aforesaid, shall be a sufficient demand, whether, at the time of leaving or affixing such notice or of such advertisement, he shall have a legal personal representative or not;

(b) The words further advances shall mean such further sum or sums of money as may be advanced or paid by the grantee to or for the grantor after the execution of this instrument, and include also such sums as may become owing by the grantor to the grantee during the continuance of this instrument for goods supplied and for bills and notes discounted or paid, or drawn, made, accepted, or endorsed by the grantee, and for other loans, credits, and advances which may, during the continuance of this security, be made by the grantee to or for the accommodation or at the request of the grantor;

(c) The words will insure shall mean that the person liable to insure will insure, and will at all times during the continuance of this security keep insured against loss or damage by fire in the name of the other party to this instrument, in some public insurance office to be approved in writing by the person in whose name such insurance is to be effected, the chattels comprised in this security, or intended so to be, which shall be of a nature or kind capable of being insured against loss or damage by fire, to the full amount specified in this instrument, or if no amount be specified then to the full insurable value of such chattels, and that he will duly pay all premiums and sums of money from time to time payable for that purpose, and that he will, at the request of the person in whose name such insurance is to be effected, hand over or deposit with him the policy of every such insurance, and produce and deliver to him the receipt or receipts for the annual or other premiums payable on account thereof, and that if default be made in the performance or observance of this covenant it shall be lawful for the person in whose name such insurance should have been effected, without prejudice nevertheless to and concurrently with the powers granted him by this instrument or otherwise by law, to insure such chattels or any of them to the amount aforesaid or to any less amount, and he may forthwith recover the costs and charges of such insurance from the other party to this instrument, with interest, as if the same had been advanced to him by way of loan on the security of this instrument, and that all moneys received under or by virtue of such insurance shall, at the option of the grantee, either be applied in or towards replacing and reinstating the said chattels, or in or towards the payment of the moneys for the time being owing on this security so far as the same will extend.

43.   Covenants to be joint and several

Whenever there is more than one grantor or more than one grantee of any bill of sale, then the covenants, conditions, provisos, powers, and agreements expressed in such bill of sale or implied therein by virtue of this Act, and imposing an obligation on such grantors or grantees, or inuring for the benefit of such grantors or grantees, shall be deemed to impose such obligations or confer such benefits, as the case may be, severally as well as jointly, unless and in so far as a contrary intention appears.

44.   Covenants to bind representatives

In any bill of sale, unless the contrary be expressed, all covenants, conditions, provisos, powers, and agreements therein expressed or therein implied by virtue of this Act, shall bind the executors, administrators, and assigns of the person upon whom such covenants, provisos, powers, and agreements shall impose an obligation, and shall operate for the benefit of the executors, administrators, and assigns of the person for whose benefit the same shall inure.

45.   Construction of covenants

In the construction of a covenant, condition, proviso, power, or agreement contained in any bill of sale or implied in any bill of sale by virtue of this Act, words importing the singular or plural number, or the masculine gender, shall be read as also importing the plural or singular number, or as extending to females, as the case may require.

45A.   Grantor to be notified of intention of grantee to take proceedings against him

[Section 45A Inserted by No. 1 of 1987, s. 17 ]

(1)  Where a grantor makes default in the payment of any of the principal, interest, or other money secured by a bill of sale given by him or in the observance or performance of any covenant, condition, or agreement expressed or implied in that bill of sale that is required to be observed or performed by him, the grantee shall not institute proceedings in any court to recover possession of the grantor's personal chattels assigned to him under that bill of sale until the expiration of the period of 14 days following the service by him on the grantor of a notice informing the grantor –

(a) that he has made such a default; and

(b) that the grantee intends, at the expiration of that period, to institute those proceedings against him.

(2)  [Section 45A Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A grantee who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.

45B.   Guarantor to be notified of intention of grantee to take possession of his personal chattels or to take proceedings against him

[Section 45B Inserted by No. 1 of 1987, s. 17 ]

(1)  Where –

(a) a person (in this section referred to as "the guarantor") guarantees the payment of the principal, interest, and other money secured by a bill of sale by pledging his personal chattels as part of the security for the payment of that principal, interest, and other money;

(b) the bill of sale contains a covenant, condition, or agreement required to be observed or performed by the guarantor that the grantee may, if the grantor makes default in the payment of that principal, interest, or other money, enter the premises at which the personal chattels so pledged are kept by the guarantor and take possession of them; and

(c) the grantor makes default in the payment of that principal, interest, or other money –

notwithstanding anything to the contrary in that covenant, condition, or agreement, the grantee shall not –

(d) enter those premises and take possession of those personal chattels until the expiration of the period of 14 days following the service by him on the guarantor of a notice informing the guarantor –

(i) that the grantor has made such a default; and

(ii) that the grantee intends, at the expiration of that period, to enter those premises and take possession of those personal chattels; or

(e) institute proceedings in any court to recover possession of those personal chattels until the expiration of the period of 14 days following the service by him on the guarantor of a notice informing the guarantor –

(i) that the grantor has made such a default; and

(ii) that the grantee intends, at the expiration of that period, to institute those proceedings against him.

(2)  [Section 45B Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]A grantee who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding 5 penalty units.

45C.   Service of notices under sections 45A and 45B

[Section 45C Inserted by No. 1 of 1987, s. 17 ]A notice required by section 45A or 45B to be served on a person by a grantee may be served by him on that person –

(a) by delivering it to him personally;

(b) by leaving it at that person's place of residence last known to the grantee with someone who apparently resides there, or at that person's place of business or employment last known to the grantee with someone who is apparently employed there, being in either case a person who has, or apparently has, attained the age of 16 years; or

(c) by sending it by post to that person's place of residence, business, or employment last known to the grantee.

46.   Regulations

[Section 46 Substituted by No. 32 of 1983, s. 24 ]

(1)  The Governor may make regulations for the purposes of this Act.

(2)  [Section 46 Subsection (2) substituted by No. 1 of 1987, s. 18 ]Without limiting the generality of subsection (1) , the regulations may –

(a) prescribe forms and impose fees; and

(b) prescribe the directions or requirements in accordance with which forms so prescribed, or any of them, shall or may be prepared or completed, and generally regulate the preparation and completion of those forms or any of them.

47.   Appropriation

[Section 47 Amended by 25 Geo. V No. 78 ][Section 47 Amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 47 Amended by No. 68 of 1994, s. 3 and Sched. 1 ]All moneys received by the Commissioner under this Act shall be paid into the Consolidated Fund.

48.   Transitional provisions

(1)  In this section, proclaimed day means the day fixed by proclamation under section 2(4) of the Bills of Sale Amendment Act 1987 .

(2)  Where, immediately before the proclaimed day, a bill of sale is in force under this Act, the grantor or grantee of the bill of sale is, while it is in force on and after that day, to renew the registration of the bill of sale as follows:

(a) he or she must renew the registration for the first time after that day in accordance with section 18 , as in force immediately before that day;

(b) he or she must renew the registration for any other time after that day in accordance with that section, as in force on and after that day.

(3)  Where, immediately before the proclaimed day, a bill of sale is in force under this Act, the covenant implied in the bill of sale that is specified in section 41 (i) is to be deemed to be implied in that bill of sale with the amendments to that covenant made by section 16 of the Bills of Sale Amendment Act 1987 .

(4)  The provisions of sections 45A , 45B and 45C apply to and in relation to a bill of sale that is in force immediately before the proclaimed day as if those sections had been in force when that bill of sale was made or given.

SCHEDULE I

SCHEDULE II

SCHEDULE III

SCHEDULE IV

SCHEDULE V

SCHEDULE VI

SCHEDULE VII

SCHEDULE VIII