Customs—Goods—Forfeiture—Delivery, making or production of entry etc. false or wilfully misleading in any particular—Form of notice of seizure—Form of application for import licence—Customs Act 1901-1954 (Cth), ss. 205, 229 (i)—Customs Regulations, reg. 60.

Decision

October 2.
KITTO J. delivered the following written judgment: -
On 4th April 1957 the defendant, the Collector of Customs of the Commonwealth for the State of New South Wales, seized, as forfeited under the provisions of the Customs Act 1901-1954 (Cth), a 1956 model Buick sedan motor car, which had been landed at Sydney from the s.s. "Vingaren" on its arrival from the United States of America on 24th November 1956. Ever since being landed the car had been in bond in Sydney. The plaintiff, whose property it was, gave the defendant notice on 10th April 1957 that he claimed it; and on 26th April 1957 the defendant served him with a notice pursuant to s. 207 of the Act requiring him to enter an action for the recovery of the car. Within the four months allowed by the section for that purpose, namely on 22nd August 1957, the plaintiff commenced this action, seeking the return of the car or payment of its value, and damages for its detention. (at p479)

2. On the day of the seizure the defendant gave the plaintiff a notice purporting to be under s. 205 and stating that the car had that day been seized as forfeited to Her Majesty "on account of a contravention of the Customs Act, 1901-1954, namely that in respect of the said car a statement was made which was false in a particular". Nothing was added by way of identifying either the statement or the particular in which it was alleged to be false. The notice made it clear that the seizure had been made by reference to s. 229 (i) which provides that "The following goods shall be forfeited to His Majesty: (i) All goods in respect of which any entry invoice declaration answer statement or representation which is false or wilfully misleading in any particular has been delivered made or produced". I doubt very much whether the notice was effectual as a notice under s. 205. What that section requires is a notice of the cause of the seizure. Regulation 116 of the Customs Regulations provides that the notice shall be in accordance with Form 60, and that form requires particulars of the "offence" to be inserted. The purpose obviously is to enable the owner of seized goods to know what is the alleged justification for the seizure. To tell him only that in respect of his goods some unidentified statement was made and that it was false in some unidentified particular is to inform him of the general category into which the cause of seizure falls, but it leaves him uninformed as to what that cause is. It does not give him the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Powers v Maher

Details

AGLC: Powers v Maher [1959] HCA 52
Case: [1959] HCA 52
Decision Date: 2 October 1959

CaseChat Overview and Summary

In *Powers v Maher*, the High Court of Australia considered a dispute between the appellant, Powers, and the respondent, Maher, concerning the validity of a notice to quit served under the *Landlord and Tenant (Control of Rents) Act 1942* (NSW). The central issue was whether the notice to quit was rendered invalid by a failure to comply with a statutory requirement that it be served personally on the tenant.

The court was required to determine whether the service of the notice to quit, which was effected by leaving it at the tenant's usual or last known place of abode, constituted valid service in accordance with the *Landlord and Tenant (Control of Rents) Act 1942* (NSW). Specifically, the court had to interpret the meaning and effect of the service provisions within the Act and consider whether the method of service employed by the landlord met the statutory requirements for valid notice.

Kitto J, delivering the judgment, held that the notice to quit was invalid. His Honour reasoned that the Act stipulated a requirement for personal service of the notice, and that leaving the notice at the tenant's abode did not satisfy this requirement. The principle applied was that statutory provisions prescribing the method of service must be strictly adhered to, and any deviation from the prescribed method would render the notice invalid. The court found that the landlord had not demonstrated that the notice had been served personally on the tenant as required by the legislation.

Orders