Version 026

Warehousemen's Liens Act 1958No. 6412 of 1958

Version incorporating amendments as at25 October 2012

TABLE OF PROVISIONSSection Page

1 Short title and commencement 12 Repeal and savings 13 Definitions 24 Declaration of warehouseman's lien 25 Charges covered by lien 26 Necessity of notice by warehouseman 37 Power to sell goods 48 Provision for payment of charges before sale 69 Notices 710 Disposition of proceeds of sale 810A Intermingled goods 911 Regulations 1112 Certain liens, rights etc. not to be affected by Act 12

__________________

SCHEDULE—Repeal 13

═══════════════

ENDNOTES 14

1. General Information 14

2. Table of Amendments 15

3. Explanatory Details 17

1

2

Version No. 026

Warehousemen's Liens Act 1958No. 6412 of 1958

Version incorporating amendments as at25 October 2012

An Act to consolidate the Law relating to the Warehousing of Goods

BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title and commencement

This Act may be cited as the Warehousemen's Liens Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.

2 Repeal and savings

(1) The Act mentioned in the Schedule to the extent thereby expressed to be repealed is hereby repealed accordingly.

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

(a) all persons things and circumstances appointed or created by the repealed Act or existing or continuing under such Act immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Act had not been so repealed;

1

(b) 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liability or right made issued granted given accrued incurred or acquired or existing or continuing by or under such repealed Act before the commencement of this Act.

3 Definitions

In this Act unless inconsistent with the context or subject-matter—

goods includes personal property of every kind that may be deposited for storage with a warehouseman as bailee;

prescribed means prescribed by regulations made under this Act;

warehouseman means a person lawfully engaged in the business of storing goods as a bailee for hire or reward.

4 Declaration of warehouseman's lien

Subject to the provisions of section six of this Act, every warehouseman shall have a lien on goods deposited with him for storage.

5 Charges 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;

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

2

No. 4562 s. 2.

s. 3

No. 4562 s. 3.

No. 4562 s. 4.

(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.

6 Necessity of notice by warehouseman

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

(a) 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;

* * * * *

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

(2) The notice shall be in the prescribed form and shall contain—

(a) a brief description of the goods;

(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;

(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

No. 4562 s. 5.

s. 6

S. 6(1)(b) repealed by No. 10097 s. 174(7)(a).

(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 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.

7 Power 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 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.

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

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

(b) 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;

* * * * *

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

(3) The notice may be given personally or by registered post.

4

No. 4562 s. 6.

s. 7

S. 7(2)(c) repealed by No. 10097 s. 174(7)(b).

(4) The notice shall contain—

(a) a brief description of the goods;

(b) 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;

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

(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, 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.

(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 daily newspaper circulating in the city of Melbourne.

The sale shall be held not less than fourteen days from the date of the first publication of the advertisement.

5

s. 7

(6) (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.

(b) 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.

(7) 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.

(8) 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.

8 Provision for payment of charges before sale

If at any time before the goods are sold any person claiming any interest or right of possession in the goods pays to the warehouseman the amount necessary to satisfy his lien, including the expenses incurred in serving notices and advertisement and preparing for the sale up to the time of payment, no further proceedings for the sale of the goods as aforesaid shall be taken.

6

S. 7(7) amended by Nos 7876 s. 2(3), 57/1989 s. 3(Sch. item 214.1).

No. 4562 s. 7.

s. 8

9 Notices

(1) 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.

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

(3) (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.

(b) 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.

7

No. 4562 s. 8.

s. 9

10 Disposition of proceeds of sale

(1) 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.

(2) (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.

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

(3) 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.

(4) 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.

* * * * *

8

No. 4562 s. 9.

s. 10

S. 10(2)(b) amended by Nos 19/1989 s. 16(Sch. item 57(a)(b)), 44/2008 s. 116(1).

S. 10(3) amended by Nos 70/1993 s. 14(Sch. item 9.1), 18/1994 s. 66(Sch. 2 item 30.1), 44/2008 s. 116(2).

S. 10(4) amended by Nos 18/1994 s. 66(Sch. 2 item 30.2), 44/2008 s. 116(2).

S. 10(5)(6) amended by Nos 57/1989 s.  3(Sch. item 214.2), repealed by No. 70/1993 s. 14(Sch. item 9.2).

(7) 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.

(8) 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.

(9) 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.

10A Intermingled 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, as from the time the goods become part of the bulk—

9

S. 10(7) amended by Nos 9554 s. 2(2)(Sch. 2 item 361), 18/1994 s. 66(Sch. 2 item 30.2), 44/2008 s. 116(3).

S. 10(8) amended by Nos 57/1989 s.  3(Sch. item 214.2), 70/1993 s. 14(Sch. item 9.3(a)(b)), 46/1998s. 7(Sch. 1), 44/2008 s. 116(4).

S. 10(9) amended by No. 44/2008 s. 116(5).

S. 10A inserted by No. 2/2009 s. 32.

s. 10A

(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.

(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

10

s. 10A

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 having acted in accordance with subsection (5)(a) or (5)(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 section 32 of the Fundraising Appeals and Consumer Acts Amendment Act 2009.

11 Regulations

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

(a) 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;

(b) 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;

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

(d) 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;

(e) 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;

11

No. 4562 s. 11.

s. 11

S. 11(1)(e) amended by Nos 9019 s. 2(1)(Sch. item 245), 57/1989 s. 3(Sch. item 214.3).

(f) 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;

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

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

* * * * *

12 Certain liens, rights etc. not to be affected by Act

Nothing in this Act shall be construed as abrogating limiting or in any manner affecting—

(a) any lien or power of sale of other right (whether arising under contract or by operation of law) which a warehouseman may have apart from this Act in respect of any goods stored by him; or

(b) the enforcement of any such lien or the exercise of any such power or right.

__________________

12

S. 11(1)(f) amended by Nos 18/1994 s. 66(Sch. 2 item 30.3), 44/2008 s. 116(6).

S. 11(1)(g) amended by No. 9554 s. 2(2)(Sch. 2 item 362).

S. 11(2) repealed by No. 6886 s. 3.

No. 4562 s. 12.

s. 12

SCHEDULE

Number of Act Title of Act Extent of Repeal

4562 Warehousemen's Liens Act 1938 The whole

═══════════════

Section 2.

Sch.

Warehousemen's Liens Act 1958No. 6412 of 1958

13

ENDNOTES

1. General InformationThe Warehousemen's Liens Act 1958 was assented to on 30 September 1958 and came into operation on 1 April 1959: Government Gazette 18.3.59 page 893.

Endnotes

Warehousemen's Liens Act 1958No. 6412 of 1958

14

2. Table of AmendmentsThis Version incorporates amendments made to the Warehousemen's Liens Act 1958 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Subordinate Legislation Act 1962, No. 6886/1962Assent Date: 8.5.62Commencement Date: 1.8.62: Government Gazette 4.7.62 p. 2314Current State: All of Act in operation

Justices (Amendment) Act 1969, No. 7876/1969Assent Date: 25.11.69Commencement Date: All of Act (except ss 3, 5, 6, 7(k)(m)–(o)) on 1.4.70;

ss 3, 5, 6, 7(k)(m)–(o) on 1.7.70 Government Gazette 25.2.70 p. 463

Current State: All of Act in operation

Statute Law Revision Act 1977, No. 9019/1977Assent Date: 17.5.77Commencement Date: S. 2(1)(Sch. item 245) on 17.5.77: s. 1(2)Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

Penalties and Sentences Act 1981, No. 9554/1981Assent Date: 19.5.81Commencement Date: S. 2(2)(Sch. 2 items 361, 362) on 1.9.81: Government

Gazette 26.8.81 p. 2799Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

Credit Act 1984, No. 10097/1984Assent Date: 22.5.84Commencement Date: S. 174(7)(a)(b) on 28.2.85: Government Gazette

19.12.84 p. 4483Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

County Court (Amendment) Act 1989, No. 19/1989Assent Date: 16.5.89Commencement Date: 1.8.89: Government Gazette 26.7.89 p. 1858Current State: All of Act in operation

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989Assent Date: 14.6.89Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette

30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217

Current State: All of Act in operation

Endnotes

Warehousemen's Liens Act 1958No. 6412 of 1958

15

Unclaimed Moneys (Amendment) Act 1993, No. 70/1993Assent Date: 5.10.93Commencement Date: 5.10.93Current State: All of Act in operation

Financial Management Act 1994, No. 18/1994Assent Date: 10.5.94Commencement Date: S. 66(Sch. 2 items 30.1–30.3) on 1.7.94: s. 2(2)Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

Unclaimed Money Act 2008, No. 44/2008Assent Date: 26.8.08Commencement Date: S. 116 on 1.1.09: s. 2(2)Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

Fundraising Appeals and Consumer Acts Amendment Act 2009, No. 2/2009Assent Date: 10.2.09Commencement Date: S. 32 on 11.2.09: s. 2(1)Current State: This information relates only to the provision/s

amending the Warehousemen's Liens Act 1958

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes

Warehousemen's Liens Act 1958No. 6412 of 1958

16

3. Explanatory DetailsNo entries at date of publication.

Endnotes

Warehousemen's Liens Act 1958No. 6412 of 1958

17