1Name of
Act
This Act may be cited as the Warehousemen’s Liens Act
1935.
2Definitions
In this Act, unless the context otherwise
requires:
Goods shall include personal
property of every description that may be deposited with a warehouseman as
bailee.
Warehouseman shall mean a person
lawfully engaged in the business of storing goods as a bailee for
hire.
3Declaration of
warehouseman’s lien
(1)
Subject to the provisions of section 5, every
warehouseman shall have a lien on goods deposited with him or her for storage,
whether deposited by the owner of the goods or by his or her authority, or by
any person entrusted with the possession of the goods by the owner or by his
or her authority.
(2)
A warehouseman’s lien over property has
priority over any other interest in the property and may be enforced
accordingly.
(3)
Section 73 (2) of the Personal Property
Securities Act 2009 of the Commonwealth is declared to
apply to a warehouseman’s lien.
s 3: Am 2010 No 57,
Sch 1.25 [1].
4Charges covered by
lien
The lien shall be for the amount of the
warehouseman’s charges, that is to say:
(a)
all lawful charges for storage and preservation
of the goods, and
(b)
all lawful claims for money advanced, interest,
insurance, transportation, labour, weighing, coopering, and other expenses in
relation to the goods, and
(c)
all reasonable charges for any notice required to
be given under the provisions of this Act, and for notice and advertisement of
sale, and for sale of the goods where default is made in satisfying the
warehouseman’s lien.
5Necessity of notice by
warehouseman where goods deposited by person entrusted with
possession
(1)
Where the goods on which a lien exists were
deposited not by the owner or by his or her authority, but by a person
entrusted by the owner or by his or her authority with the possession of the
goods, the warehouseman shall, within two months after the date of the
deposit, give notice of the lien:
(a)
to the owner of the goods, including any person
who has served upon the warehouseman a prescribed notice of his or her claim
to be the owner of the goods or of some interest therein,
and
(b)
to any other person of whose interest in the
goods the warehouseman has actual knowledge.
(2)
The notice shall be in writing and
contain:
(a)
a brief description of the goods,
and
(b)
a statement showing the location of the warehouse
where the goods are stored, the date of their deposit with the warehouseman,
and the name of the person by whom they were deposited,
and
(c)
a statement that a lien is claimed by the
warehouseman in respect of the goods under this Act, and
(d)
such other particulars as are
prescribed.
(3)
The notice may be given personally or by
registered post.
(4)
Where the warehouseman fails to give the notice
required by this section, his or her lien, as against the person to whom he or
she has failed to give notice, shall be void as from the expiration of the
period of two months from the date of the deposit of the
goods.
s 5: Am 2005 No 69,
Sch 5.6 [1]; 2010 No 57, Sch 1.25 [2].
6Power to sell
goods
(1)
In addition to all other remedies provided by law
for the enforcement of liens or for the recovery of warehouseman’s
charges a warehouseman may sell by public auction, in the manner provided in
this section, any goods upon which he or she has a lien for charges which have
become due.
(2)
The warehouseman shall give written notice of his
or her intention to sell:
(a)
to the person liable as debtor for the charges
for which the lien exists, and
(b)
to the owner of the goods, including any person
who has served upon the warehouseman a prescribed notice of his or her claim
to be the owner of the goods or of some interest therein,
and
(c)
to any other person of whose interest in the
goods the warehouseman has actual knowledge.
(3)
The notice may be given personally or by
registered post.
(4)
The notice shall contain:
(a)
a brief description of the goods,
and
(b)
a statement showing the location of the warehouse
where the goods are stored, the date of their deposit with the warehouseman,
and the name of the person by whom they were deposited,
and
(c)
an itemized statement of the warehouseman’s
charges showing the sum due at the time of the notice, and
(d)
a demand that the amount of the charges as stated
in the notice and such further charges as may accrue shall be paid on or
before a day mentioned, not less than one month from the delivery of the
notice if it is personally delivered, or from the time when the notice should
reach its destination according to the due course of post if it is sent by
post, and
(e)
a statement that unless the charges are paid
within the time mentioned the goods will be advertised for sale and sold by
public auction at a time and place specified in the
notice.
(5)
Where the charges are not paid on or before the
day mentioned in the notice, an advertisement of the sale, describing the
goods to be sold, and stating the time and place of the sale, shall be
published at least once a week for two consecutive weeks in a newspaper
circulating in the locality where the sale is to be held, and in one
metropolitan daily newspaper.
The sale shall be held not less than fourteen
days from the date of the first publication of the
advertisement.
(6)
The Local Court may, on the application of the
owner, made in the manner prescribed, at any time after the service of the
notice by order, stay further proceedings under this section, for such period
and on such terms as it deems just, and any proceedings under this section
taken after due service of such order on the warehouseman, and during the
period specified in the order, shall be illegal.
(7)
Nothing in this section authorises:
(a)
the sale of goods deposited prior to the
commencement of the Warehousemen’s Liens (Amendment) Act
1989, unless at least some part of the charges in arrears
relates to a period more than 12 months before the date on which the notice of
intention to sell the goods is given, or
(b)
the sale of goods deposited after the
commencement of that Act, unless at least some part of the charges in arrears
relates to a period more than 6 months before the date on which the notice of
intention to sell the goods is given.
s 6: Am 1985 No 231,
Sch 31; 1989 No 175, sec 3; 2005 No 69 Sch 5.6 [2]; 2007 No 94, Sch 1.102;
2010 No 57, Sch 1.25 [3].
7Notices
(1)
Where a notice of lien under the provisions of
section 5, or a notice of intention to sell under the provisions of section 6
has been given, but such provisions have not been strictly complied with, if
any court before whom any question respecting the notice is tried or inquired
into considers that such provisions have been substantially complied with, or
that it would be inequitable that the lien or sale shall be void by reason of
such non-compliance, no objection to the sufficiency of the notice shall in
any such case be allowed to prevail so as to release or discharge the goods
from the lien or vitiate the sale.
(2)
A notice given under this Act by registered post
shall be deemed to be sufficiently addressed to the person to whom it is sent
if it is addressed to him or her at the last address of such person known to
the warehouseman.
(3)
Regulations made under this Act may provide for
the giving of notice by advertisement in cases where any person to whom notice
may be given pursuant to section 5 or section 6 is unknown to the
warehouseman, or where no address of any such person is known to the
warehouseman, and for the ascertainment of the day upon which such notice
shall be deemed to have been given, and for any other matter relating to such
advertisement.
Any notice given by advertisement in accordance
with such regulations shall for the purposes of this Act be deemed to have
been given personally on the date ascertained pursuant to the
regulations.
8Disposition of proceeds of
sale
(1)
From the proceeds of the sale the warehouseman
shall satisfy his or her lien, and shall pay over the surplus, if any, to the
person entitled thereto; and the warehouseman shall when paying over the
surplus deliver to the person to whom he or she pays it a statement of account
showing how the amount has been computed.
(2)
If the surplus is not demanded by the person
entitled thereto within ten days after the sale, or if there are different
claimants or the rights thereto are uncertain, the warehouseman shall pay the
surplus to the NSW Trustee and Guardian.
(3)
The warehouseman at the time of paying the amount
to the NSW Trustee and Guardian shall furnish duplicate copies of the
statement of account, showing how the amount has been computed, verified in
the manner prescribed, and such other particulars relating to the transaction
as may be prescribed by regulation made under this Act.
(4)
Any money so paid to the NSW Trustee and Guardian
shall be held by him or her on behalf of the person for the time being
entitled thereto and such person shall be entitled to be repaid such sum, less
any charges prescribed by regulations made under this Act. The regulations may
prescribe the manner in which sums lying unclaimed in the hands of the NSW
Trustee and Guardian for a period of six years shall be disposed
of.
s 8: Am 2009 No 49,
Sch 2.62.
9Provision for payment before
sale of goods
(1)
At any time before the goods are sold any person
claiming an interest or right of possession in the goods may pay the
warehouseman the amount necessary to satisfy his or her lien, including the
expenses incurred in serving notices and advertisement and preparing for the
sale up to the time of the payment.
(2)
The warehouseman shall deliver the goods to the
person making the payment if he or she is the person entitled to the
possession of the goods on payment of the warehouseman’s charges
thereon, otherwise the warehouseman shall retain possession of the goods
according to the terms of the contract of deposit.
9AIntermingled
goods
(1)
This section applies to goods that have been
deposited with a warehouseman by their owner, or by his or her authority, and
that have become intermingled with other goods of the same kind owned by, or
deposited with, the warehouseman so as to form a single bulk quantity
(the bulk).
(2)
Unless the parties otherwise agree:
(a)
the owner’s property in the goods becomes
property in an undivided share in the bulk, and
(b)
the owner becomes an owner in common of the bulk,
and
(c)
subject to paragraph (d), the owner and
warehouseman each have, in relation to the owner’s undivided share in
the bulk, the same obligations as they would have had in relation to the goods
had they not become part of the bulk, and
(d)
the warehouseman’s obligation to deliver
the goods to, or to the order of, the owner becomes an obligation to deliver
an equivalent quantity of goods out of the bulk to, or to the order of, the
owner,
as from the time the goods become part of the
bulk.
(3)
The owner’s undivided share in the bulk at
any time is such share as, at that time, is equivalent to the quantity of
goods that have been deposited by the owner less the quantity of goods that
have been delivered out of the bulk to, or to the order of, the
owner.
(4)
If at any time the aggregate of all owners’
undivided shares in the bulk exceeds the whole of the bulk, those shares are
to be reduced proportionately so that their aggregate is equal to the
bulk.
(5)
A person who becomes an owner in common of the
bulk is taken to consent to:
(a)
any delivery of goods out of the bulk to any
other owner in common of the bulk, being goods to which this section applies,
and
(b)
any dealing with, or removal, delivery or
disposal of, goods in the bulk by any other owner in common of the bulk, but
only to the extent of that other owner’s undivided share in the
bulk.
(6)
No cause of action lies against any person by
reason of that person’s having acted in accordance with subsection (5)
(a) or (b) in reliance on the consent that exists by virtue of that
subsection.
(7)
This section does not apply to goods deposited
with a warehouseman before the commencement of the Sale
of Goods and Warehousemen’s Liens Amendment (Bulk Goods) Act
2006.
s 9A: Ins 2006 No
119, Sch 2 [2].
10Application of
Act
The provisions of this Act shall apply to cases
in which the goods were deposited for storage before as well as to cases in
which the goods are deposited after the commencement of this Act but no notice
pursuant to section 6 shall be given before the expiration of three months
from such commencement.
In applying section 5 to a case in which the
deposit was made before such commencement that section shall be read as if, in
subsection (1), the words “after the commencement of this Act”
were substituted for the words “after the date of the deposit”;
and as if the words “at the commencement of this Act” were
substituted for the words “at the date of the deposit”; and as if,
in subsection (4), the words “from the commencement of this Act”
were substituted for the words “from the date of the deposit of the
goods”.
11Regulations
(1)
The Governor may make regulations not
inconsistent with this Act prescribing all matters which are required or
permitted to be prescribed or which are necessary or convenient to be
prescribed for carrying out or giving effect to this
Act.
(2), (3)
s 11: Am 1987 No 48,
Sch 32.