Warehousemen's Liens Act 1958

The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.

Except as in this Act expressly or by necessary implication provided—

all persons things and circumstances appointed or created by the repealed Act or existing or continuing under such Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Act had not been so repealed;

in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any regulation order lien notice advertisement claim sale declaration inventory payment account liability or right made issued granted given accrued incurred or acquired or existing or continuing by or under such repealed Act before the commencement of this Act.

all lawful charges for storage and preservation of the goods;

all lawful claims for insurance, transportation, labour, weighing, packing, coopering, and other expenses in relation to the goods; and

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.

The warehouseman shall within two months after the date of the deposit of the goods give notice of the lien—

to any person who has served upon the warehouseman a notice in the prescribed form of his claim to be the owner of the goods or of some interest therein or of whose interest the warehouseman has received notice as prescribed;

to any other person of whose interest in the goods the warehouseman has knowledge.

The notice shall be in the prescribed form and shall contain—

a brief description of the goods;

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;

a statement that a lien is claimed by the warehouseman in respect of the goods under this Act; and

such other particulars as are prescribed.

The notice may be given personally or by registered post.

Where the warehouseman fails to give the notice required by this section, his lien, as against the person to whom he fails 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.

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 any goods upon which he has a lien for charges which have become due: Provided that regulations made under this Act may prescribe a mode of sale other than sale by public auction in the case of goods of any particular kind.

The warehouseman shall give written notice of his intention to sell—

to the person liable as debtor for the charges for which the lien exists;

to any person who has served upon the warehouseman a notice in the prescribed form of his claim to be the owner of the goods or of some interest therein or of whose interest the warehouseman has received notice as prescribed;

to any other person of whose interest in the goods the warehouseman has knowledge.

The notice may be given personally or by registered post.

The notice shall contain—

a brief description of the goods;

a statement showing the situation 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;

an itemized statement of the warehouse's charges showing the sum date at the time of the notice;

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

a statement that unless the charges are paid within the time mentioned the goods will be advertised for sale and sold by public auction, or (as the case may require) by such mode as is prescribed for goods of the kind in question, at a time and place specified in the notice.

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 daily newspaper circulating in the city of Melbourne.

(a) For the purpose of advertising in accordance with the provisions of this section, the warehouseman may without liability for damage take all reasonable steps (including the opening of sealed or closed boxes or packages) to ascertain the nature and description of the goods to be sold.

If pursuant to the last preceding paragraph any box or package is opened the same shall be opened in the presence of two other persons who shall make sign and verify by statutory declaration an inventory of the contents thereof.

The magistrates' court may, on the application of any person having any interest in the goods made in the manner prescribed at any time after the service of the notice, make an order staying further proceedings under this section for such period and on such terms as it deems just.

This section shall apply only to cases in which some part of the charges in arrear are in respect of a period more than twelve months prior to the date upon which the notice of intention to sell is given.

Where a notice of lien under the provisions of section six of this Act, or a notice of intention to sell under the provisions of section seven of this Act has been given, but such provisions have not been strictly complied with, then if any court before which 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 should be deemed to 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.

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 at the last address of such person known to the warehouseman.

(a) 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 six or section seven of this Act 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.

From the proceeds of the sale the warehouseman shall satisfy his lien, and, subject to the provisions of the next two succeeding subsections, shall not less than ten nor more than fourteen days after the sale pay over the surplus, if any, to the person or persons entitled thereto; and the warehouseman shall when paying over the surplus deliver to the person or persons to whom he pays the surplus or any part thereof a statement of account showing how the amount has been computed.

(a) Where there are conflicting claims to such surplus or the rights of any claimant thereto are uncertain the warehouseman shall within fourteen days after the sale pay such surplus into the county court.

Any money so paid into the county court may be applied as the court thinks fit.

Where no claim to such surplus is made within ten days after the sale the warehouseman shall within fourteen days after the sale pay the surplus to the Registrar of Unclaimed Money to be placed to the credit of the Consolidated Fund.

The warehouseman at the time of paying such surplus into the county court or to the Registrar of Unclaimed Money 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 are prescribed.

Any warehouseman who fails to pay any money into the county court or to the Registrar of Unclaimed Money as required by this section shall be liable to a penalty of not more than 1 penalty unit for every day during which such default continues.

If any claimant makes any demand against the Minister administering Part 7 of the Financial Management Act 1994 for any money paid to the receiver of revenue and placed to the credit of the Consolidated Fund that Minister upon being satisfied that the claimant is entitled to the money demanded by him shall order and direct payment of the same to be made to him out of money made available by Parliament for the purpose.

Where any unclaimed money paid to any claimant are afterwards claimed by any other person the Treasurer shall not be responsible for the payment of the same but such person may have recourse against the claimant to whom the Treasurer has paid the unclaimed money.

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).

Unless the parties otherwise agree, as from the time the goods become part of the bulk—

the owner's property in the goods becomes property in an undivided share in the bulk; and

the owner becomes an owner in common of the bulk; and

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

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.

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.

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.

A person who becomes an owner in common of the bulk is taken to consent to—

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

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.

No cause of action lies against any person by reason of that person having acted in accordance with subsection (5)(a) or (5)(b) in reliance on the consent that exists by virtue of that subsection.

This section does not apply to goods deposited with a warehouseman before the commencement of section 32 of the Fundraising Appeals and Consumer Acts Amendment Act 2009.

The Governor in Council may make regulations for or with respect to—

prescribing the form of notice to be served upon a warehouseman by any person claiming to be the owner of any goods deposited with such warehouseman or to be the owner of some interest in such goods;

prescribing the cases where notice of interests of other persons shall be given to the warehouseman by the person depositing goods with him and the form of and particulars to be contained in such notice;

prescribing the form of and the particulars to be contained in notices given by warehousemen under section six of this Act;

prescribing a mode of sale under section seven of this Act other than sale by public auction in the case of goods of any particular kind;

prescribing the manner of application to the Magistrates' Court by persons having any interest in goods deposited with warehousemen for the purpose of staying the sale of such goods;

prescribing the manner of verification of and the particulars to be contained in statements of account furnished to the county court or to the Registrar of Unclaimed Money under this Act;

prescribing penalties (not exceeding 5 penalty units) for breaches of the regulations; and

generally, prescribing any matter or thing authorized to be prescribed or necessary or expedient to be prescribed for carrying this Act into effect.