3.1 The declared purpose of the Disposal of Uncollected Goods Act is. to provide a general remedy for bailees in possession of uncollected goods. Yet frequently remedies are provided for bailees in other legislation specifically designed to regulate the commercial area In which the bailment arises. This raises the question of whether a general approach to the problem is necessary. This Chapter outlines the procedures available to recover goods under legislation other than the Disposal of Uncollected Goods Act. After examining these an evaluation of the need for a general scheme of recovery is made in Chapter 4.
I. TENANCY
3.2 Before the Residential Tenancies Act was passed in 1987, the landlord was considered to be an involuntary bailee with no common law right to dispose of goods left by a tenant vacating premises. The bailment was imposed even when the landlord had neither the desire nor capacity to store the goods. Any attempt to sell exposed the landlord to liability for conversion. Even when the landlord had a lien for unpaid rent the sale or other disposal of the goods could still constitute conversion.1
3.3 This law will be overtaken by the Residential Tenancies Act 1987 when it comes into operation. Section 79(1)(a) of the Act gives a right to apply to the Residential Tenancies Tribunal for an order allowing the landlord to dispose of the goods.2 Under s79( 2 ) , the Tribunal is given a wide discretion in the sorts of orders it may make. These include
(a) an order authorising the removal, destruction or disposal of the goods;
(b) an order authorising the sale of the goods;
(c) an order directing that notice of any action or proposed action in relation to the goods is to be given to the former tenant or any other person;
(d) an order as to the manner of sale of the goods;
(e) an order as to disposal of the proceeds of sale of the goods;
(f) any ancillary order which the Tribunal in the circumstances, thinks appropriate.
Section 79(3) guarantees good title to purchasers of goods sold subject to an order of the Tribunal. The Residential Act 1987 had not been proclaimed at the time or writing (November 1988). The Commission understands that the Act is likely to come into force in February or March 1989.
II. REPAIRERS
3.4 When goods are left for repair or treatment under a bailment for reward, the only right the repairer has to dispose of them is under the terms of the Disposal of Uncollected Goods Act 1966. These are both complex and expensive to satisfy. The main problem with the Act is that unless a court order is obtained, the only means of disposing of goods is by public auction.3 Items left uncollected with repairers are usually of little value: second-hand and useless to anyone but the owner. Court proceedings are inappropriate in relation to such goods and they cannot be sold at auction easily. The Act is rarely used by repairers.
III. WAREHOUSES AND STORAGE FOR HIRE
3.5 The responsibilities and liabilities of a person who is a bailee for hire, are set out in the Warehousemen’s Liens Act 1935. Under s3 of that Act, a warehouseman has a lien on goods deposited with him for all charges and costs incidental to the storage and preservation of the goods, including the cost of notices required by the Warehousemen’s Liens Act.4
3.6 Section 6 empowers the warehouseman to sell the goods over which he has a lien at public auction upon satisfaction of certain conditions, which include:
(i) written notice of intention to sell, to the person liable for the debt, the owner of the goods, and other persons with interests in them, as set out by s6(2). This notice is to be delivered personally or by registered post;5
(ii) requirements for the contents of the notice are set out by s6(4), and include a statement of the charges due and a demand that they be paid, along with advice that if such charges are not paid the goods are liable to be sold;
(iii) an advertisement of the sale of the goods published in one local and one metropolitan daily newspaper, once a week for 2 weeks, describing the goods and stating the time and place of the sale;6
(iv) sale of the goods will only be allowed where the charges due on them are more than 12 months in arrears.7
3.7 The Warehousemen’s Liens Act 1935 only applies to goods stored in the course of a business. It does not apply to other bailments undertaken for reward outside business. Further, while the conditions imposed on the bailee’s right of sale may be appropriate to the extensive operations of warehouses and other such storage facilities, they are unlikely to be helpful when the goods involved are of little value, and when the bailee’s facilities are not designed to deal with long-term storage of goods.
IV. INNKEEPERS
3.8 When a guest departs premises leaving goods behind, the proprietor of a hotel or guesthouse is in the same position at common law as a landlord. However, if a guest leaves without paying a “reasonable sum for accommodation”, the innkeeper or licensee has a lien over the property. The extent of this lien is however limited by s8 of the Innkeepers Act 1968, which abolishes an innkeeper’s lien over certain property.8
V. BOARDING HOUSES
3.9 Like landlords at common law, the owners of boarding houses are considered involuntary bailees with no rights to dispose of the goods and no lien over their boarders’ goods even when the rent is unpaid.9 The Commission understands that boarding houses are likely to be included within the operation of the Residential Tenancies Act at some time in the future.
VI. “INERTIA” SELLING
3.10 Inertia selling is a practice whereby goods are sent unsolicited to a person and, when not returned, are deemed to have been accepted by the recipient, who is then billed accordingly. The practice is regulated by the Unsolicited Goods and Services Act 1974. Section 4 of this Act relieves the recipient from any liability for damage to, or payment for, goods sent in such a manner. After a specified period (not more than three months) the goods are deemed to be the property of the recipient “freed and discharged from all liens and charges of any description” so long as the recipient has unreasonably refused to allow the sender to retrieve them and so long as the goods were not received in circumstances “in which he has, or might reasonably be expected to have known, that they were not intended for him”. Section 4 also sets out some notice provisions, but these are optional as title to the goods automatically vests in the recipient after three months.11
VII. PAWNBROKERS
3.11 When goods are given in pawn, the pawnbroker’s right to sell the goods is governed by the Pawnbrokers Act 1902. The period during which any article taken in pawn may be redeemed is three months, or longer as agreed between the parties. After this period the pawned article will be deemed forfeited pursuant to s17(1) of the Act, and way be sold. Section 19 provides for the sale of goods by public auction. These provisions also require a notice of every sale, and a catalogue of all articles, and the time they were taken in pawn, to be inserted in a newspaper circulating in New South Wales, at least 14 days before the proposed date of the sale.
VIII. “LOST” GOODS
3.12 There is a variety of regulations giving rights to dispose of lost or misplaced on public transport. There are extensive provisions relating to “public passenger vehicles” (including buses, taxis and private hire cars) set out in the State Transport (Co-ordination) Regulation 1931 and the Transport (Public Vehicles) Regulations 1930. In addition, the Governor has power to make
regulations in relation to the disposal of uncollected goods on the railways.12
FOOTNOTES
1. Discussed 2.6-2.14 above.
2. Section 79(1)(b) also allows for regulations to be made to provide guidelines for the manner of disposal of abandoned goods.
3. Disposal of Uncollected Goods Act 1966, Part II.
4. Warehousemen’s Liens Act 1935, s4(a),(b) and (c).
5. S6(3).
6. S6(5).
7. S6(7).
8. Innkeepers Act 1968, ss8 and 6(a).
9. Discussed 3.2 above.
10. Unsolicited Goods and Services Act 1974, s4(5).
11. See also Trade Practices Act 1974 (Cth), Part V which deals with unsolicited goods. Section 65 contains provisions similar to those of s4 of the Unsolicited Goods and Services Act.
12. Pursuant to Government Railways Act 1912, s64. The Act also covers railway cloak rooms. An outline of the common law position of railway authorities appears in Halsbury’s Laws of England (4th ed Butterworths, 1973) Vol 2 at para 1548 and Van Toll v South Eastern Railways Co (1862) 12 CB (NS) 75; 142 ER 1071; Pratt v-South Eastern Railways Co [1897]1 QB 718.
