Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing)

The appeal concerned a dispute between Stapley, the owner of a damaged vehicle, and Towing Masters Pty Ltd (trading as Dynamic Towing), a towing company. Dynamic Towing had towed Stapley's vehicle following an accident and subsequently claimed a lien over the vehicle for the towing and storage charges. Stapley disputed the validity of this lien. The matter came before the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether Dynamic Towing, as a tow truck operator attending an accident scene, qualified as a common carrier, and consequently, whether it was entitled to a common carrier's lien over Stapley's vehicle. A further issue was whether the question of a lien had been properly litigated at trial, particularly in the absence of formal pleadings, and whether the parties had implicitly agreed to litigate this issue when invited to make submissions by the trial judge. The onus of proof for establishing the existence of such a lien was also a consideration.

The Court of Appeal determined that Dynamic Towing did not hold itself out to the public in a manner characteristic of a common carrier. The court found that the trial judge had erred in finding the existence of a lien, as there was no evidence presented to establish that Dynamic Towing engaged in a common calling or offered its services to the public generally. The Court of Appeal concluded that the parties had not consensually litigated the question of a lien, despite the trial judge's invitation for submissions, as the necessary factual basis for a common carrier's lien had not been established.

Leave to appeal was granted, the orders of the court below were set aside, and a declaration was made that Dynamic Towing was not entitled to any lien over the vehicle. The money held in court was paid out as agreed, and Dynamic Towing was ordered to pay the costs of both the Court of Appeal and the proceedings below.