Stapley v Towing Masters Pty Ltd - [2009] NSWSC 139

CITATION: Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWSC 139

HEARING DATE(S): 24 and 25 February 2009

JUDGMENT DATE :
12 March 2009

JURISDICTION: Equity Division

JUDGMENT OF: Palmer J

DECISION: Plaintiff’s Further Amended Summons dismissed; declaration in terms of Cross Claim.

CATCHWORDS: LIENS – Whether tow truck operator has general lien arising at law – whether operator has a special lien created by statute – whether tow truck operator is a common carrier – whether tow truck operator has an artificer’s lien – whether operator has lien for salvage.

LEGISLATION CITED: Common Carriers Act 1902 (NSW)
Tow Truck Industry Act 1998 (NSW) – s 8, s 15, s 18(3), s 50, s 52, s 54, s 84, s 105
Warehousemen’s Liens Act 1935 (NSW) – s.3
Workmen’s Liens Act 1893 (SA) – s 5

CATEGORY: Principal judgment

CASES CITED: - Belfast Ropework Company Limited v Bushell [1918] 1 KB 210
- Berkeley Applegate (Investment Consultants) Ltd (in liq), Re [1989] Ch 32
- BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1978) 52 ALJR 20
- Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
- Drinkrow v Hammond & McIntyre Ltd [1954] NZLR 442
- Eastman Chemical International AG v NMT Trading Ltd [1972] 2 Lloyd’s Rep 25
- Geering v Stewart Transport Ltd [1967] NZLR 802
- Hatton v Car Maintenance Company Ltd [1915] 1 Ch 621
- James v Commonwealth (1939) 62 CLR 339
- Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 2) (1987) 162 CLR 153
- Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48
- Mercantile Credits Ltd v Jarden Morgan Australia Ltd [1991] 1 QdR 407
- Naylor v Mangles (1794) 1 Esp 109 (170 ER 295)
- Nelson v Dahl (1879) 12 Ch D 568
- Nicholson v Chapman (1793) 2 Hy Bl 254 (126 ER 536)
- Oppenheim v Russell (1802) 3 Bos & P 42 (127 ER 24)
- Pinnock v Harrison (1838) 3 M&W 532 (150 ER 1256)
- Rushforth v Hadfield [1805] 6 East 519 (102 ER 1386)
- Securitas (NZ) Ltd v Cadbury Schweppes Hudson Ltd [1988] 1 NZLR 340
- Siohn & Company Ltd, A., v R.H. Hagland & Son (Transport) Ltd [1976] 2 Lloyd’s Rep 428
- Skinner v Upshaw & Son (1702) 2 Ld Raym 752 (92 ER 3)
- Southern Livestock Producers Ltd, Re [1964] 1 WLR 24
- Vital Learning Aids Pty Ltd and the Companies Act, Re [1979] 2 NSWLR 442

TEXTS CITED: - “Ashburner’s Concise Treatise on Mortgages, Pledges and Liens” (2nd Ed) (1911) Butterworth & Co
- Fisher & Lightwood’s “Law of Mortgage” (2nd Ed) (2005) LexisNexis Butterworths
- Hall “Possessory Liens in English Law”(1917) Sweet & Maxwell
- Halsbury “Laws of England” (4th Ed) Vol 5(1) at paras 401, 402, 425; Vol 28, para [525]
- Kahn-Freud “The Law of Carriage by Inland Transport” (4th Ed) (1965) Stevens…

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.

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Details

Case: [2009] NSWSC 139
Decision Date: 12 March 2009

CaseChat Overview and Summary

The case before the court involved Stapley, the plaintiff, and Towing Masters Pty Ltd, the defendant. The dispute arose from the towing and storage of the plaintiff's vehicle, which the defendant had towed without the plaintiff's consent. The plaintiff sought the return of their vehicle and compensation for damages allegedly incurred during the towing and storage process. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the defendant, as a tow truck operator, had a general lien arising at law, a special lien created by statute, an artificer's lien, or a lien for salvage. Additionally, the court needed to determine if the defendant could be considered a common carrier. The plaintiff argued that none of these liens applied to the defendant, while the defendant contended that at least one of the liens was applicable, allowing them to charge for the towing and storage services provided.

In its decision, the court held that the defendant did not possess a general lien arising at law. The court found that tow truck operators do not generally have such a lien unless there is a contractual agreement or statutory provision to that effect. The court further determined that the defendant was not a common carrier, as the operation of towing vehicles does not fall within the statutory definition of a common carrier. Regarding the special lien created by statute, the court found that this did not apply to the defendant's situation. The court also rejected the notion of an artificer's lien, as it is typically associated with the repair of goods, which was not the case here. Finally, the court held that the defendant did not have a lien for salvage, as the defendant did not take any affirmative action to save the plaintiff's vehicle from damage or destruction. Consequently, the defendant was not entitled to any charges for towing and storage services.

The court ordered Towing Masters Pty Ltd to return the plaintiff's vehicle and pay compensation for any damages incurred during the unauthorised towing and storage. The court also dismissed the defendant's claim for any charges related to the towing and storage services provided.

Orders