Possessory Liens Act of 1942 (6 Geo Vi No. 19) (Qld)

MEROANTILE LAW. 181 6 GEO. VI. No. 19, 1942. Possessory Liens Act. An Act to Further Amend the Law respecting 6 N G o Il . O. 19 V . l certain Possessory Liens. POSiE~ ~ ORY [ A SSENTED TO 12TH NOVEMBER, 1 942 . ] J,IEN 1 S 94 A 2 C . T OF B E it enacted. by the Killg's .Most Excellent Majesty, by and with the advice and consent of the Legis- lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. This Act may be cited as " The Possessory Liens Short title. Act of 1942." This Act shall be read and construed so as not to Construction limit or prejudice any provision of *" The Contractors' and of Act. Workmen's Lien Acts, 1906 to 1921." 2 In this Act, unless the context otherwise indicates Meanings of or requires, the following terms shall have the meanings terms. respectively assigned to them, that is to say:- " Goods "-The term includes personal property Goods. of every description other than livestock and other than any document or writing which is an instrument of any right, title, estate, or interest in or to any property; " Prescribed "-Prescribed by this Act; Prescribed. " This Act "-This Act and all regulations made This Act. or purporting to be made hereunder and for the time being in force. 3. Subject to this Act, any person who has in law Right of a I l " en f or an amoun t not exceeding flft y pounds hseollldgeorotdos upon goods deposited with him for safe custody in ~ espect of or for the doing or performing of any work or labour or ~ ~ ; ~ he the supply of any materials to, upon, for, or in relation ~ ossessory to the same (whether such goods shall have been lHm. deposited by the owner of the goods or by his authority or by any person entrusted with the possession of the goods by the owner or by his authority) may sell such goods. 4. (1.) Where the goods on which a lien mentioned Notice by in section three hereof exists were deposited not by the ~~ ~d: h~~ e owner or by his authority, but by a person entrusted goods. by the owner with the possession of the goods or by his ~ ; p; : ~ ~ ~ ~ authority, the person with whom the goods have been e~ trusted deposited shall, within sixty days after the date of the ; ~:~ ession. deposit, give notice of the lien- (a) To tHe owner of the goods, including any person who has served upon the person with * i} E. 7 No. 30. See v. 4, p. 740.

182 MERCANTILE LAW. Possessory Liens Act. 6 GEO. VI. No. 19~ whom the goods have been deposited a prescribed notice of his claim to be the owner of the goods or of some interest therein; and (b) To the grantee of the goods under any bill of sale registered at the date of the deposit under *" The Bills of Sale Acts, 1891 to 1941 " ; and (C) To the holder of any security registered at the date of the deposit under t" The Mercantile Acts, 1867 to 1896 " ; and (d) To the Crown within the meaning of t" The State Securities Registration Act of 1925," if the Crown holds any security over the goods registered at the date of the deposit under such Act. Contents of notice. (2.) The notice shall be in writing and contain- (i.) A brief description of the goods; and (ii.) A statement showing the location of the premises where the goods are held in possession, the date of their deposit, and the name of the person by whom they were deposited; and (iii.) A statement that a lien is claimed upon the goods by the person giving such notice; and (iv.) Such other particulars as are prescribed. Manner of giving notice. Effect of failure to give notice. (3.) The notice may be given personally or by registered post. (4.) Where the person with whom the goods have been deposited fails to give the notice required by this section, he shall not, as against the person to whom he has failed to give notice, have or be deemed to have any right to sell the goods under this Act. Power to sell goods. 5. (1.) In addition to all other remedies provided by law for the enforcement of any lien mentioned in section three of this Act or for the recovery of the proper debts or claims to which such lien properly attaches, the holder thereof may sell by public auction in the manner provided in this section any goods upon which he has such lien. * 55 V. No. 23 and amending Acts. See v. 6, pp. 319 et Beg. t 31 V. No. 36 and amending Acts. See v. 6, pp. 293 et Beg. + 16 G. 5 No. 19. See v. 3, p. 18.

1942. MERCANTILE LAW. POSSe8sory Liens Act. 183 (2.) Such holder shall give written notice of his Notice of intention to sell- t , i 0 ntesneltl.ion (a) To the person liable as debtor for the proper debts or claims to which such lien properly attaches; and (b) To the owner of the goods, including any person who has served upon such holder a prescribed notice of his claim to be the owner of the goods or of some interest therein; and (c) To the grantee of the goods under any bill of sale or chattel mortgage registered under *" The Bills of Sale Acts, 1891 to 1941 " ; and (d) To the holder of any security over the goods registered under t" The Mercantile Acts, 1867 to 1896 " ; and (e) To the Crown within the meaning of t" The State Securities Registration Act of 1925," if the Crown holds any security over the goods registered under such Act; and (f) To the officer in charge of the police district in which the premises where the goods are held in possession are situated. (3.) The notice may be given personally or by ~ ~ er of registered post. ~ ~~ ~ ~. (4.) The notice shall contain- (a) A brief description of the goods; and Contents of notice. (b) A statement showing the location of the premises where .the goods are held in possession, the date of their deposit with the holder of the lien, and the name of the person by whom they were deposited; and (c) An itemised statement of the proper debts or claims to which such lien properly attaches showing the sum due at the time of the notice; and * 55 v. No. 23 and amending Acts. t 31 V. No. 36 and amending Acts. 16 G. 5 No. 19. See v. 3, p. 18. See v. 6. pp. 319 et Beg. See v. 6, pp. 293 et seg.

184 MERCANTILE LAW. Possessory Liens Act. 6 GEO. VI. No. 19, (d) A demand that the amount of the debts or claims as stated in the notice and such further debts or claims as may accrue shall be paid on or before a day mentioned, not less than thirty days from the delivery of the notice if it is personally delivered, or from the time when the notice should reach its destination according to the due course of post if it is sent by post; and (e) A statement that unless the debts or claims are paid within the time mentioned the goods will be advertised for sale and sold by public auction at a time and place specified in the notice. Advertise- ment of sale (5.) Where the debts or claims are not paid on or before the day mentioned in the notice, an advertisement of the sale, describing the goods to be sold, and stating the time and place of sale, shall be published at least once a week for two consecutive weeks in a newspaper circulating in the locality where the sale is to be held and in one metropolitan daily newspaper. The sale shall be held not less than fourteen days from the date of the first publication of the advertisement. Power to (6.) A court of petty sessions holden before a tcoousrttay stipendiary magistrate in the petty sessions district proceedings. within or within twenty miles of the boundary of which the premises in which the goods are notified as being held in possession are situated may, on the application of the owner made in the manner prescribed, at any time after the service of the notice by order, stay further proceedings under this section for such period and on such terms as it deems just, and any proceedings under this section taken after due service of such order on the holder of the lien, and during the period specified in the order, shall be illegal. When power of sale devolves. (7.) This section shall apply only to cases in which the whole or some part of the proper debts or claims to which the lien properly relates in arrear are in respect of a period more than twelve months prior to the date upon which the notice of intention to sell is given. Sufficiency 6. (1.) Where a notice of lien under the provisions of notices. of section four of this Act, or a notice of intention to sell under the provisions of section five of this Act, has been given, but such provisions have not been strictly complied

1942. MERCANTILE LAW. POSSe8sory Liens Act. 185 with, if any court before which any question respecting the notice is tried or inquired into considers that such provisions have been substantially complied with, or that it would be inequitable that the right to sell conferred by this Act or the sale shall be void by reason of such non-compliance, no objection to the sufficiency of the notice shall in any such case be allowed to prevail so as to vitiate such right to sell or sale. (2.) A notice given under this Act by registered post shall be deemed to be sufficiently addressed to the person to whom it is sent if it is addressed to him at the last address of such person known to the holder of the lien. (3.) Regulations made under this Act may provide Substituted faonrythpeergsiovnintgo owf hnoomticenobtyI. ceadmvearytisbeemg· eInvteinn pcuasressuawnhtetroe n se o rt I ~ C c e e s. of section four or section five of this Act is unknown to the holder of the lien or where no address of any such person is known to the holder of the lien, and for the ascertainment of the day upon which such notice shall be deemed to have been given, and for any other matter relating to such advertisement. Any notice given by advertisement in accordance . with such regulations shall for the purposes of this Act be deemed to have been given personally on the date ascertained pursuant to the regulations. 7. (1.) From the proceeds of the sale the holder Disposition of the lien- ~ ~ r: ~ ~ eeds (i.) May deduct and retain all reasonable charges for any notice required to be given under ~ hls Act, and for notice and advertisement of sale, and for sale of the goods; and (ii.) Subject to paragraph (i.) of this subsection, may satisfy the lien, and shall pay over the surplus (if any) to the person entitled thereto. Such holder shall when paying over the surplus deliver to the person to whom he pays it a statement of account showing how the amount has been computed. (2.) If the surplus is not demanded· by the person entitled thereto within ten days after the sale, or if there are different claimants or the rights thereto are uncertain, such holder shall pay the surplus to the Public Curator of Queensland.

186 MERCANTILE LAW. P08Se8Sory Liens Act. 6 GEO. VI. No. 19. (3.) The holder of the lien at the time of paying the amount to the Public Curator of Queensland shall furnish duplicate copies of the statement of account showing how the amount has been computed, verified in the manner prescribed, and such other particulars relating to the transaction as may be prescribed. (4.) Any money so paid to the Public Curator of Queensland shall be held by him on behalf of the person for the time being entitled thereto, and such person shall be entitled to be repaid such sum less any prescribed charges. Any such sum lying unclaimed in the hands of the Public Curator of Queensland for a period of six years shall be deemed to be unclaimed moneys under and within the meaning of *" The Public Ourator Acts, 1915 to 1938," and shall be dealt with accordingly. Provision for payment before sale of goods. 8. (1.) At any time before the goods are sold any person claiming an interest or right of possession in the goods may pay the holder of the lien the amount necessary to satisfy his lien, including the expenses incurred in serving notices and advertisement and preparing for the sale up to the time of the payment. Duty of holder of lien on payment. (2.) The holder of the lien shall deliver the goods to the person making the payment if he is the person entitled to the possession of the goods on payment of the holder's charges thereon, otherwise the holder shall retain possession of the goods according to the terms of the contract of deposit. (3.) There shall be implied in every bill of sale or other encumbrance in favour of the grantee or encumbrancee a covenant that the amount of any payment made by him in terms of this section shall be added to, and be deemed to be included in, the principal moneys secured by such bill of sale or other encumbrance. Goods not 9. (1.) Every other provision of this Act shall, twohbilee soowldner to the extent necessary to give operation and effect to on war this section, be read and construed subject to this service. section. (2.) A holder of a lien mentioned in section three of this Act shaH not, pursuant to this Act, sell any goods upon which he has such lien while the owner of such goods is engaged on war service. * 6 G. 5 No. 14. See v. 9, p. 627.

1942. MERCANTILE LAW. P088e880'T'g Liens Act. 187 (3.) No account shall be taken of the period during which any such owner is engaged on war service in computing any period of time under or for the purposes of this Act. (4.) "Engaged on war service" means serving during any war in which His Majesty is engaged- (a) As a member of any Naval, Military, or Air Forces of the Commonwealth of Australia or of any other part of His Majesty's dominions; or (b) With any nursing service, voluntary aid detachment, red cross society, ambulance association, or any similar body or organisation attached to or accompanying any of those forces; or (c) As a representative, attached to or accompany- ing any such force, of any organisation which is providing philanthropic, welfare, or medical services for members of that force, and includes undergoing detention as a prisoner of war or internment in a country under the sovereignty or in the occupation of the enemy, or internment in a neutral country immediately after so serving. The term also includes serving with the Civil Constructional Corps established under the NationalSecurity(AlliedWorks)Regulations of the Common- wealth. 10. The provisions of this Act shall apply to cases Application in which the goods were deposited before as well as to of Act. cases in which the goods are deposited after the passing of this Act, but no notice pursuant to section five shall be given before the expiration of ninety days from such passing. In applying section four of this Act to a case in which the deposit was made before this Act was passed, that section sh!1ll be read as if in subsection one the words "after the passing of this Act" were substituted for the words "after the date of the deposit"; and as if the words "at the passing of this Act" were substituted for the words "at the date of the deposit" wherever such lastmentioned words occur.

188 MERCANTIIJE LAW. POSSe8sory Liens Act. 6 GEO. VI. No. 19, 1942. Regulations. 11. The Governor in Council may from time to time make all such regulations as he shall deem necessary or convenient for the purpose of giving effect to this Act, and more particularly, but without limiting the generality of this section, with respect to all matters required or permitted by this Act to be prescribed. All such regulations shall be published in the Gazette and shall upon such publication be of the same force and effect as if they were enacted in this Act and shall be judicially noticed, and shall not be questioned in any proceedings whatsoever. The publication in the Gazette of any such regulation shall be conclusive evidence of the power and authority to make same and of all matters contained therein. Regulations to be laid 12. All regulations made under this Act shall be Pbeafroliraement. laid before the Legislative Assembly within fourteen days after the publication thereof in the Gazette if Parliament is in session; or, if not, then within fourteen days after the commencement of the next session. If Parliament passes a resolution disallowing any such regulation, of which resolution notice has been given within fourteen sitting days of such House after such regulation has been laid before it, such regulation shall thereupon cease to have effect, but without prejudice to the validity of anything done in the mean- time or to the power to make further or other regulations. For the purpose of this section the term "sitting days" shall mean days on which the House actually sits for the despatch of business.