Fisher v Automobile Finance Company of Australia Ltd [1928] HCA 35; (1928) 41 CLR 167 (1 November 1928)

Fisher Defendant, Appellant; and The Automobile Finance Company of Australia Limited Plaintiff, Respondent.

The Supreme Court of Victoria held that the plaintiff was not entitled to an artificer's lien. The rule of law is that an artificer's lien arises only when "the work in respect of which the charges arose was done by the order or at the request of the owner or some person authorized by him" (Cassils & Co and Sassoon & Co v Holden Wood Bleaching Co[1]; Pennington v Reliance Motor Works Ltd[2]; Hall on Possessory Liens, p. 57). Keene v Thomas[3], Green v All Motors Ltd[4] and Albemarle Supply Co v Hind & Co[5] are all cases in which such an authority was inferred. The learned Judges of the Supreme Court declined to draw any such inference in the circumstances of the present case, and, in our opinion, they were right.

Two questions have been argued. The first is as to whether the transaction amounted to a bill of sale. The answer is that upon the uncontroverted evidence the respondent purchased the vehicle by an oral contract, and it paid the full price. It then assumed the position of owner, with the consent of the former owner, by entering into a written hire-purchase contract by which it let the vehicle to Brander, with an option of purchase. The second is whether, in the circumstances, the appellant has a lien. I must confess I should be very glad to see some way, consistently with law, of supporting his claim to be paid. It is admitted that he has charged only a reasonable price for the repairs he did to the appellant's car, and it is not suggested that he in any way acted improperly. I should like to quote the words of Pickford L.J. in Cassils' Case[6] on this subject. The learned Lord Justice said: "One does rather regret of course that these persons should not have a remedy for the work which they have done. I should think in practice probably there would not be very much difficulty, because with firms of the standing of those concerned in this action probably, if it were fair, the work would be paid for." Pickford L.J., however, felt constrained to hold that there was no legal right. That is my position here. It would be easy to state at once the proposition of law which is decisive of the matter. But the question has been argued with fulness and ability, and I think I should state with a little particularity how I arrive at the result.

It is, perhaps, convenient to begin with one view presented towards the end of the argument, based on Akotey's Case[7], namely, that the innocent third person should not suffer. That is the only ground of estoppel suggested. It is remarkable that nearly two hundred years ago, in what is perhaps a fundamental case on this point of lien, precisely the same argument was advanced and without success. In Hartop v Hoare[8] the question was whether there was a right to retain jewels entrusted by the plaintiff to one Seamer, who deceived the plaintiff and raised money upon them. At p. 47 reference is made to the principle just stated. The answer of Lee C.J. was "the plaintiff here gave no power to Seamer to do the act in which the deceit was, but on the contrary hath used a prudent method to prevent it." That case may be taken to lay down in 1743 the principle that the general rule is that no lien exists over the goods of the owner for the debt of another person. The later cases support this, and establish the proposition that the goods of a person other than the debtor are not bound unless the owner expressly, impliedly or ostensibly authorizes the debtor to create either the lien contractually, or the relation which by law involves a lien. I use the word "relation" because Lord Westbury in In re Leith's Estate; Chambers v Davidson[9] speaks of "a mercantile relation, which might involve a lien." I employ the term to indicate the entrusting of the property by the debtor to the bailee for the purpose of expending money, labour or service upon or in respect of it, the act which attracts a lien by implication of law. In Falcke v Scottish Imperial Insurance Co[10] Bowen L.J. says:—"The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will." If there is direct authority from the owner, cadit quæstio. But, if not, we then go to Cassils' Case[11], where Buckley L.J. (as he then was) speaks of the case where, as between the owner of the goods and an intermediate person who passes on the goods to a third party, there is an implied authority in the intermediary to bind his principal in respect of the manner in which the goods are dealt with. Of this, Keene's Case[12] and the Singer Manufacturing Co's Case[13] are given as illustrations. No doubt, on general principles of law, if the owner by any act clothes the debtor with apparent authority and allows him thus to go out into the world, then, in favour of any person who was induced thereby bona fide to act upon such apparent authority, that would be treated as the real authority (Cole v North-Western Bank[14]). But the mere entrusting a person with property is not enough. Lee C.J. said so in 1743. Lord Lindley said as much in 1902, in Farquharson Bros & Co v King & Co[15]. There must be something more in the owner's conduct, something which a reasonable man in his situation ought to anticipate might mislead (see R. E. Jones Ltd v Waring & Gillow Ltd[16]). Lord Herschell in London Joint Stock Bank v Simmons[17] states the position (except as to negotiable instruments) in these words:—"The general rule of the law is, that where a person has obtained the property of another from one who is dealing with it without the authority of the true owner, no title is acquired as against that owner, even though full value be given, and the property be taken in the belief that an unquestionable title thereto is being obtained, unless the person taking it can show that the true owner has so acted as to mislead him into the belief that the person dealing with the property had authority to do so. If this can be shown, a good title is acquired by personal estoppel against the true owner." It is at this point that in my opinion the Albemarle Co's Case[18] comes into play. The company there let three taxi-cabs to Botfield, the first in 1921 and the last in 1923. He kept them in Hind's garage. Hind's attended to the cabs regularly for years, and were paid by Botfield weekly up to May 1924, when he fell into arrear. In May 1925 the company claimed the cabs, and Hind's claimed a lien for balance of account due from Botfield. It is inconceivable to me that the learned members of the Court of Appeal did not regard the long continued practice of Botfield, apparently sanctioned by the owner (because there was no interference) was bona fide acted on by Hind's, and was in the circumstances to be taken as the real authority. I think it is implied in the judgment of Lord Hanworth M.R. It is, in my opinion, distinctly visible in that of Scrutton L.J.[19]. Although Hind's knew there were hire-purchase agreements, which displaced any notion of Botfield's ownership, yet that fact, in the opinion of the Court, did not displace Hind's right, based on apparent authority, because so far, it was in the circumstances as they appeared, more consistent with the owner's authority to do what Botfield did, namely, create the necessary relation, which by force of law and not by any additional personal contract of Botfield, would involve a lien, than that so long and so openly Botfield was exceeding his authority. To displace that right, not merely the existence, but knowledge of the limitation was necessary. In short, I understand the Albemarle Co's Case as primarily founded on apparent authority, this not being displaced by knowledge of the undisclosed limitation. So understood, it is in line with all other cases on the subject. Otherwise it would be discordant with Cassils' Case[20], and that case is indubitably right.

We have already intimated that, in our opinion, there is no substance in the contention that the plaintiff Company did not acquire title to the motor-truck by purchase. The Bills of Sale Acts have nothing to do with the position; for there was no bill of sale, there was no document to register. The evidence of Marchant, secretary of the Quality Cars Ltd., admitted without objection or cross-examination, was as follows: "We sold the Chevrolet one-ton truck verbally to the plaintiff Company for £92 10s., and we received the £92 10s. from the plaintiff Company."

The property in the truck being vested in the plaintiff, the rest of the case, as to lien for repairs, is merely an application of the principle Nemo dat quod non habet, nemo plus juris in alium transferre potest quam ipse habet. With certain definite exceptions, such as sale in market overt, transfer of negotiable instruments, &c., no one can give title to an article to which he has no title himself; and no one except the owner can diminish the property of the owner in part, as by conferring a right of lien. I understand from the book of Professor Sheldon Amos on the Civil Law of Rome (p. 153) that, under the Roman law also, one who has his debts secured by a contract of pledge has a right of ownership of a limited kind, which is so much deducted from the otherwise complete right of the owner of the thing pledged.

There is no lien for repairs unless the repairs have been done at the request or by the authority of the owner (Hollis v Claridge[21]; Hiscox v Greenwood[22]; Castellain v Thompson[23]); and I find no such request or authority here. There is an exception to the rule in the case of inn-keepers or of carriers, where the law imposes the burden of receiving the goods, and therefore gives the power of retaining the goods for the receivers' indemnity (Naylor v Mangles[24]). But the present case is not within any such exception.

The facts are that on 19th May 1927 the Company let the truck to one Brander in consideration of £30 paid, and of nine monthly payments to be made of £7 12s. 10d. each. Brander was to have no property or interest in the truck except as bailee until full payment (clause 14); was to keep it in good order and condition, to make good all damage, to keep it exempt from all legal process, and to keep the Company free from all expenses; was to make no alteration without the previous written consent of the Company; was to insure. Under clause 6 of the agreement, Brander was not to have any authority to pledge the owner's credit for any repairs, or to create a lien on the truck in respect of repairs, but was to allow the Company's nominee to execute repairs at Brander's expense. Brander was to keep the truck in his sole custody and was not to pledge it or part with the possession. Notwithstanding these express provisions, Brander brought the truck to the defendant on 21st June following and, being told that the engine wanted overhauling, requested the defendant to do what was necessary. The defendant claims a lien for his charges for the repairs.

On these facts there can be no pretence that there was any express request or authority from the plaintiff Company; the Company's name was not even mentioned to the defendant. The only question that remains is: Is the Company in some way estopped from telling the truth that it had not made any request or given any authority—did it cause the defendant to believe that Brander was the owner of the truck, or that he had the authority of the Company to get the repairs done? I can find no evidence that would support such an estoppel.

It is not surprising to find that the learned Judge of County Courts, who found in favour of the lien, attached great importance to the decision of Swift J. and of the Court of Appeal in England in Albemale Supply Co v Hind & Co[25]. That case merits close scrutiny; but I do not find anything in it which qualifies the major proposition that there can be no lien unless the repairs have been done at the request or with the authority of the owner. The primary Judge and the Court of Appeal came to the conclusion, on the facts there proved, that the owner had caused the defendant to believe that the hirer had the authority. As Scrutton L.J. put it[26], "if a man is put in a position which holds him out as having a certain authority, people who act on that holding out are not affected by a secret limitation, of which they are ignorant, of the apparent authority." I quite concur in the view of the Judge that the repairer cannot be affected with notice of the limitation of the agreement; but the point is that there is no evidence here of any holding out of Brander as having the authority of the owner. The fact that such holding out was found in the Albemarle Co's Case does not show that there was holding out in this case. In the Albemarle Co's Case the defendant knew that the plaintiff company was the owner of the cars; and that the hirer was habitually getting the cars repaired by the defendant, and was carrying on business with the cars (see per Swift J.[27]). The Court came to the conclusion that the company, the owner, by its conduct, sanctioned the repairing of the cars by the defendant; and that was all that was necessary for the purposes of the law as to lien. Whether the finding of fact in that case was or was not justified is irrelevant to this case. The principle remains untouched—that no one but the owner can create a lien for repairs on the owner's property.

In Keene v Thomas[28] the Court found that the owner had given the repairer express authority, by the agreement, to have the repairs done by the coach-builder. The case of Singer Manufacturing Co v London and South-Western Railway Co[29] was an application of the exception as to carriers. The case of Green v All Motors Ltd[30] was a case in which authority in fact was found in the words of the agreement, to "keep the car in good repair and working condition."

I am of the opinion that the decision of the Full Court of Victoria, as expressed by Mann J., was right, and that the appeal should be dismissed.

[1] (1915) 112 L.T. 373.

[2] (1923) 1 K.B. 127.

[3] (1905) 1 K.B. 136.

[4] (1917) 1 K.B. 625.

[5] (1928) 1 K.B. 307.

[6] (1915) 84 L.J. K.B., at p. 847.

[7] (1926) A.C., at p. 76.

[8] (1743) 3 Atk. 43.

[9] (1866) L.R. 1 P.C. 296, at p. 305.

[10] (1886) 34 Ch. D. 234, at p. 248.

[11] (1915) 84 L.J. K.B., at p. 840.

[12] (1905) 1 K.B. 136.

[13] (1894) 1 Q.B. 833.

[14] (1875) L.R. 10 C.P. 354.

[15] (1902) A.C. 325, at p. 342.

[16] (1926) A.C. 670.

[17] (1892) A.C. 201, at p. 215.

[18] (1928) 1 K.B. 307.

[19] (1928) 1 K.B. at p. 316 (top), p. 317 (foot), and p. 318.

[20] (1915) 84 L.J. K.B. 834.

[21] [1813] EngR 289; (1813) 4 Taunt. 807.

[22] (1803) 4 Esp. 174.

[23] [1862] EngR 1089; (1862) 13 C.B. (N.S.) 105.

[24] (1794) 1 Esp. 109.

[25] ??? (1928) 1 K.B. 307.

[26] ???

[27] (1927) 43 T.L.R. 652.

[28] (1905) 1 K.B. 136.

[29] (1894) 1 Q.B. 833.

[30] (1917) 1 K.B. 625.

High Court of Australia

Fisher v Automobile Finance Company of Australia Ltd [1928] HCA 35; (1928) 41 CLR 167 (1 November 1928)

HIGH COURT OF AUSTRALIA