Toll Logistics (NZ) Ltd v McKay

Link copied
Case Copied 40 min read

For a Court ready (fee required) version please follow this link

IN THE COURT OF APPEAL OF NEW ZEALAND
CA442/2010
[2011] NZCA 188

BETWEEN  TOLL LOGISTICS (NZ) LIMITED
Appellant

AND  ANDREW JOHN MCKAY AND JOHN JOSEPH CREGTEN
Respondents

Hearing:         7 April 2011

Court:             Arnold, Randerson and Harrison JJ

Counsel:         B J Upton and L Barnard for Appellant
M R Bos and C L Clayton for Respondents

Judgment:      16 May 2011 at 3.00 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No
Introduction [1]
The facts in more detail [6]
The judgment under appeal [13]

Is Toll entitled to a general lien at common law?

General liens
The Majeau decision
The English authorities
The New Zealand cases
Texts and commentaries
Modification of a common law rule in this context

[16]

[16]
[17]
[21]
[44]
[49]
[53]

Packer’s lien – discussion [55]
Whether, in any event, the application of a general packer’s lien is excluded by the contractual arrangements between Toll and Scene 1

[64]

Conclusion [72]

Introduction

  1. This appeal raises issues about common law general liens and their priority in relation to general security agreements under the Personal Property Securities Act 1999 (the PPSA).  The appellant (Toll) provided a range of logistical services to Scene 1 Entertainment Ltd (Scene 1).  On 22 June 2009, ASB Bank Limited (ASB) appointed the respondents as Scene 1’s receivers.  ASB acted pursuant to a general security deed executed on 27 February 2008 under which Scene 1 granted ASB a security interest over all of Scene 1’s present and after-acquired personal property.  ASB registered its financing statement on the personal properties securities register under the PPSA on 4 March 2008.

  2. At the date of receivership, Scene 1 owed Toll $287,368.50.  Toll was then holding in its warehouse on behalf of Scene 1 approximately 500,000 DVDs valued at approximately $2.6 million.  Toll asserted a general packer’s lien over the DVDs.  Toll said it was entitled to the lien because part of the services it provided to Scene 1 involved the packing of the DVDs to the order of Scene 1’s customers.  Toll claimed that a lien arose either at common law or pursuant to contractual arrangements agreed with Scene 1 and recorded in a letter dated 5 June 2009. 

  3. The receivers of Scene 1 (the receivers) concede that there is a contractual lien but contend there is no common law general lien for the services provided by Toll (ie a general lien which exists as a matter of law requiring no proof of custom).  The receivers alternatively submit that if there is such a common law general lien, then it is excluded in the present case by the contractual arrangements between the parties.

  4. The receivers applied for directions under s 34 of the Receiverships Act 1993.  The broad question before the High Court…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Toll Logistics (NZ) Ltd v McKay and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] NZCA 188
Decision Date

CaseChat Overview and Summary

In the case of Toll Logistics (NZ) Limited v McKay, the Court of Appeal considered the issue of whether the appellant, Toll Logistics, was entitled to a general packer’s lien over goods held on behalf of Scene 1 Entertainment Ltd. The court held that Toll was not entitled to such a lien at common law without proof of custom. The Court found that the origins of the packer’s lien in English cases were closely aligned with the factor’s lien, which involved moneylending. The court concluded that a general packer’s lien should not be recognised in New Zealand in the absence of satisfactory proof of a custom supporting such a lien. Furthermore, the contractual arrangements between Toll and Scene 1 excluded the application of any such lien in respect of services rendered by Toll to Scene 1 after 5 June 2009, but not before that date. The appeal was dismissed, and the appellant was ordered to pay the respondents' costs for a standard appeal on a band A basis and usual disbursements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.