Turner v Mulley: C J Page Claimant
[1991] TASSC 47
•10 April 1991
Serial No 19/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Turner v Mulley: C J Page Claimant [1991] TASSC 47; A19/1991
PARTIES: TURNER
v
MULLEY
PAGE, C J (Claimant)
FILE NO/S: 1005/1989
DELIVERED ON: 10 April 1991
JUDGMENT OF: Underwood J
Judgment Number: A19/1991
Number of paragraphs: 15
Serial No 19/1991
List "A"
File No 1005/1989
TURNER v MULLEY: C J PAGE CLAIMANT
REASONS FOR JUDGMENT UNDERWOOD J
10 April 1991
In the course of proceedings brought by James George Turner against Keith Mulley an order was made by the learned Chief Justice that Mr Turner pay Mr Mulley's taxed costs of an application made on behalf of the latter to strike out the statement of claim. The costs were taxed in the sum of $1,474.20. As Mr Turner (the judgment debtor) did not pay these costs, a writ of fieri facias was issued to the sheriff.
Pursuant to the writ and the provisions of the Civil Process Act 1939, s1, a quantity of goods on the judgment debtor's property was seized on 8 March 1991. Included amongst them was an 11'6" aluminium dinghy. Cyril John Page (the claimant) of Cygnet, claimed that he was the owner of this dinghy. The judgment creditor did not respond to the notice issued in accordance with the Rules of Court, O69, r15(1) but the judgment debtor did. He took the unusual course of advising the sheriff that he ought to maintain his levy on the dinghy and sell it under the writ. The sheriff now applies for interpleader relief with respect to this dinghy.
When the matter came on for hearing, Mr Hallett appeared for the sheriff. The claimant and the judgment debtor both appeared in person. The deputy sheriff filed an affidavit which was read on the hearing of the summons. I accept its contents and find that the applicant sheriff has no interest in the dinghy other than for charges and costs and does not collude with either the claimant or the judgment debtor. See Rules of Court, O69, r2 and Rogers v Benson and Salter Burburycj 23/70.
With the consent of the parties I forthwith embarked upon a determination of the competing claims. (O69, r8). Both the claimant and the judgment debtor gave sworn evidence. There was no substantial disputed issue of fact and I find as follows.
On 18 August 1983 the claimant bought the dinghy for $1,000.00. As the claimant had another boat he often lent it to his brother, Michael Page. It was a loose arrangement. It was not uncommon for the dinghy to remain in the brother's possession for an extended period of time. It was thus in Mr Michael Page's possession on 10 July 1990. It was tied onto a trailer kept at Mr Michael Page's house, Dulcia Road, Gordon. The judgment debtor was the lessor of this property. He had sublet it to Mr Michael Page as a fortnightly tenant. By 10 July 1990 the tenant was behind in his rent to the extent of $1,970.00. The judgment debtor decided to distrain for these arrears of rent and, on 10 July 1990, he distrained upon a gas barbeque, a motor vehicle and the dinghy owned by the claimant, all being chattels then found on the tenant's property. The judgment debtor made out and signed an inventory as he was required to do by the Landlord & Tenant Act 1935, s47. He delivered the inventory to the tenant. The judgment debtor gave the tenant walking possession of the car in return for a promise by the tenant to pay $50.00 per week off the arrears of rent. The tenant did not keep his promise, but what happened to the car is unclear on the evidence. The dinghy was taken to the judgment debtor's house where it stayed until seized by the sheriff's bailiff in execution of the writ of fieri facias. The judgment debtor had intended to sell it by public auction, but apparently the auctioneer was not too keen about doing this following a telephone call from the claimant. The judgment debtor sold the gas barbeque and applied the proceeds of sale in reduction of the arrears of rent, but a considerable amount remained and still remains outstanding.
The judgment debtor submitted that, as there had been no replevy in accordance with the Landlord & Tenant Act, s53, his possession, and the sheriff's subsequent seizure of the dinghy, was lawful. He submitted that the dinghy was his and therefore the sheriff should sell it to partly satisfy the judgment debt.
Distress is an ancient remedy for the recovery of rent. Originally, the landlord had no power to sell the goods distrained. This remedy is described in Blackstone's Laws of England, vol3 in the following terms at p14:
"This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distreinor."
By various statutory enactments a landlord was granted the right to sell chattels lawfully distrained. In Tasmania, this right is presently enacted in the Landlord & Tenant Act, s53 which provides that if the tenant in possession or owner of the goods does not, within the time specified by the section, replevy the goods it shall be lawful for the person distraining to cause the goods and chattels to be sold.
At common law, a landlord entitled to distrain for rent, could seize all goods and chattels found on the tenant's premises whether they were the property of the tenant or a stranger. See Cramer & Co Ltd v Mott (1870) LR 5 QB 357; Clarke v Millwall Dock Co (1886) 17 QBD 494; Challoner v Robinson [1908] 1 Ch 49. In Lyons v Elliott [1876] 1 QBD 210 Blackburn J referred to the common law rule in the following terms at p213:
"No doubt the general rule at common law was that whatever was found on the demised premises, whether belonging to a stranger or not, might be seized by the landlord and held as a distress till the rent was paid or the service performed. This state of the law produced no harm, because at common law the landlord not being able to sell the distress, he generally gave up the goods as soon as he found they were not the tenant's, as his continuing to hold them would not induce the tenant to pay. But in the reign of William and Mary a very harsh and unjust law (2 Wm & M s1, c5) was passed by which the right was given to the landlord to sell any goods seized, and to apply the proceeds to the payment of the rent unless the tenant or owner of the goods first paid for it; and this held out a great temptation to the landlord to seize the goods of a stranger although he knew that they were not the tenant's."
Notwithstanding the common law right to distrain on goods and chattels belonging to a stranger and found on the demised premises, ownership remains vested in the true owner until sold by the landlord pursuant to the statutory right of sale. See King v England 4 B & S 782 (122 ER 654); Moore v Pyrke 11 East 52 (103 ER 923); Turner v Ford 15 M & W 212 (153 ER 826). The landlord has no property in the goods distrained and cannot maintain an action for trover if they are rescued or unlawfully taken out of pound. See r v Cotton (1751) Parker 112 (145 ER 729); Wilbraham v Snow (1670) 2 Wm. Saund 47 (85 ER 624). In such circumstances a landlord's only recourse is by way of statutory cause of action for punitive damages for pound breach or rescue. See Landlord & Tenant Act, s44.
The harshness of the statutory right to sell goods belonging to a stranger was ameliorated in the United Kingdom by the Law of Distress Amendment Act 1908. These provisions find expression in Tasmania in the Landlord & Tenant Act Part V, Div2. Section 61(1) provides that if the landlord levies a distress upon the goods of "any person not being a tenant of the premises or any part thereof, and not having any beneficial interest in any tenancy of the premises or of any part thereof" that person may make a statutory declaration. Subsection (2) prescribes the contents of this statutory declaration and s62 provides that, if a landlord "levies or proceeds with a distress" on goods specified in a statutory declaration served on him he may be guilty of an illegal distress.
No such statutory declaration has been made by the claimant and served on the judgment debtor in this case but this can be done at any time prior to a sale. Section 64 exempts certain goods from the protection afforded by Div2 including those in the possession of the tenant with the consent of the owner "under such circumstances that such tenant is the reputed owner thereof". Whether the dinghy falls within the class of goods referred to in s64 was not the subject matter of evidence and in any event, is not a matter presently requiring determination.
In summary then, I hold that the dingy:
1is owned by the claimant,
2was lawfully in the possession of the judgment debtor at the time of its seizure by the sheriff and,
3not having been served with a statutory declaration made in accordance with s61, the judgment debtor was entitled to retain possession until the arrears were paid or until exercise by him of the statutory right of sale.
For completeness, I should perhaps add that a stranger whose goods have been lawfully distrained has a right to recover damages from the tenant. See Exall v Partridge (1799) 8 TR 308 (101 ER 1405).
As the judgment debtor is not the owner of the dinghy and has no more than a limited right to be in possession of it, it is appropriate that an order be made that the sheriff withdraw from possession of the dinghy seized by him under the writ of fieri facias and claimed by the claimant and that no action be brought. The matter will finally be determined by one or more of the following: payment of the arrears; the exercise of the statutory right of sale; service by the claimant of the appropriate statutory declaration and/or any consequential proceedings that might thereafter be brought by the claimant to recover possession of the dinghy or pursuant to the Landlord & Tenant Act, s62(1).
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