I. BACKGROUND AND TERMS OF REFERENCE

1.1 In 1985 the Commission received submissions from the General Legal Committee of the Law Society of NSW (9 July 1985) and the Conference of Chamber Magistrates (5 December 1985), both dealing with deficiencies in the Disposal of Uncollected Goods Act 1966. The major concern expressed by these two bodies was the difficulty experienced by landlords in complying with the terms of the Act when selling goods abandoned on their premises by departing tenants. The 1966 Act does not provide a suitable procedure for them and, at common law, a landlord who of the goods may be guilty of conversion.¹ Concern expressed about the unnecessary complexity of the legislation, and the cost of relying on its provisions, as most goods to be disposed of under the Act will be of little monetary value.

1.2 On 17 March 1986 the then Attorney General, the Hon T W Sheahan BA, LLB, MP, made the following reference to the Commission:

To inquire into and report on:



1. The law governing the rights and liabilities of persons in possession of uncollected goods, including but not limited to the application of the Disposal of Uncollected Goods Act, 1966;

2. Any incidental matter.

1.3 A draft report was completed by the Commission in July 1986, but work was then postponed pending the outcome of a review of landlord and tenant law by the Department of Consumer Affairs.

II. RESIDENTIAL TENANCIES ACT 1987

1.4 The Residential Tenancies Act 1987 was passed by the NSW Parliament in April 1987. It was intended to introduce major reforms in tenancy law, and to cover every aspect of the landlord and tenant relationship. It was the second stage in a package of reforms which commenced with the Residential Tenancies Tribunal Act 1986. In June 1986, the Commission obtained from the Department of Consumer Affairs an outline of the proposed legislation which included a proposal to make special provision for landlords who needed to dispose of goods left by their tenants. Further inquiries revealed that the provisions of the new Act were to be based on s79A of the Residential Tenancies Act 1981(SA), which created a simple and effective mechanism for dealing with such goods.

1.5 When it comes into force, the Residential Tenancies Act 1987 (NSW) will allow the landlord to apply to the Residential Tenancies Tribunal for an order in relation to the disposal of uncollected goods.² Alternative methods of disposal (such as those set out in the South Australian legislation) will be settled by regulation.³ At the time of writing (November 1988) no regulations had been promulgated pursuant to s79.

1.6 Even without the regulations, the Residential Tenancies Act will offer a clear solution for the landlord in custody of abandoned goods. As any further adjustment of the landlord’s rights is likely to take place within the structure of the Residential Tenancies Act, the major reason for this reference has been removed.

Ill. COMMUNITY CONSULTATION

1.7 During the writing of the draft report, the Commission contacted a number of community groups, which could be expected to rely on the Disposal of Uncollected Goods Act. The results of this consultation⁴ showed that most industrial and organisations rely on the provisions of legislation business which has special application to their industry when disposing of goods left on their premises. There appeared to be little knowledge of the existence of the Disposal of Uncollected Goods Act amongst those contacted. Since the tenancy problems are to be dealt with by the residential tenancies legislation, and there is only a limited number of businesses not covered by special legislation, any problems with the operation of the Disposal of Uncollected Goods Act are likely to have minimal impact.

IV. NEED FOR REVIEW OF THE DISPOSAL OF UNCOLLECTED GOODS ACT

1.8 As the Commission found a number of grounds on which its provisions could be criticised we decided to continue our review of the Act. It may be that the deficiencies identified could deter those for whom it was designed from using the procedures laid down in the Act. The terminology of the Act is confusing, its remedies complex and some of its requirements outdated and impractical. In addition we thought it important to question whether general legislation should be passed to cover all uncollected goods, when it is clear that specific legislation exists to accommodate the disposal of goods in many industries and businesses. The Commission decided to proceed to a report, and to make recommendations for revision of the Act, in order to make the legislation more effective and its procedures more attractive to those who may use them. To address the problem of the general ignorance of the provisions of the Act, the Commission recommends that a brochure explaining the operation of the (revised) Act should be produced and distributed widely. There would then be a better basis for discussion if further review of the Disposal of Uncollected Goods Act is thought necessary in the future.

V. STRUCTURE OF REPORT

1.9 We began our inquiry by examining the legal rights to dispose of uncollected goods. The results of this study appear in Chapter 2 where we look first at rights given at common law and then at the statutory provisions which have been passed to supplement the common law. Chapter 3, describes the most common situations in which the need to dispose of uncollected goods arises. In most cases, special legislation has been passed to regulate disposal of the goods. That legislation is discussed. Chapter 4 is an evaluation of the Disposal of Uncollected Goods Act 1966 and in Chapter 5 we present our recommendations for reform.

VI. ACKNOWLEDGEMENTS

1.10 The Commission wishes to acknowledge the contribution of Ms Leanne O’Shannessy, a Senior Legal Officer with the Commission, to this reference. She was primarily responsible for the research and writing of the Report. The Commission also wishes to acknowledge the assistance of Mr Michael Orpwood, QC, Deputy Parliamentary Counsel, who freely made himself available for consultation during the course of this project.

1. See generally Sachs v Miklos [1948] 2 KB 23; Munro v Willmott [1949] 1 KB 295.

2. Residential Tenancies Act 1987, s79. For a description of the operation of these provisions see Chapter 3, para 3.3.

3. Id s79(1)(b).

4. See Chapter 3 generally.