Dinmore Meatworks Pty Ltd v Kerr [1962] HCA 47; (1962) 108 CLR 628 (12 September 1962)

HIGH COURT OF AUSTRALIA

DINMORE MEATWORKS PTY. LTD. v. KERR [1962] HCA 47; (1962) 108 CLR 628

Lien

High Court of Australia
Kitto(1), Windeyer(1) and Owen(1) JJ.

CATCHWORDS

Lien - Particular lien contrasted with general lien - Lien by meatworks upon meat from cattle slaughtered - The Companies Acts, 1931 to 1955 (Q.), s. 258.

HEARING

Brisbane, 1962, September 5, 6, 12. 12:9:1962
APPEAL from the Supreme Court of Queensland.

DECISION

September 12.
THE COURT delivered the following written judgment: -
This is an appeal from a decision of Mansfield C.J. given on a motion for convenient first to consider the scope of the common law doctrine on which the appellant seeks to rely; for when this is correctly appreciated its application to the facts of this case presents no difficulty, and the answer to the question on which the appeal turns becomes apparent. (at p632)

2. It is a long established principle that if a chattel be delivered to a man so that he may for reward do work upon it, as for example by repairing or altering it or making something of it, he may, having completed the work retain possession of it until he has been paid for his work. This lien prevails against the owner if it was he who delivered the chattel to the man who was to do the work and also if it was delivered by a bailee with the express or implied authority of the owner. Such a lien has two characteristics that are of critical importance in the present case. It is a possessory lien, and it is a particular lien. To say that it is a possessory lien means that - apart from any statutory extension of his common law rights - the lienee's only right is to keep possession of the article until he is paid for his work on it. If he voluntarily surrenders possession of it to the owner his lien is lost. To say that it is a particular lien means that, apart from express agreement, the workman is only entitled to retain the article until the indebtedness for the work done upon that article has been paid. He cannot, as in the case of a general lien, retain it until all moneys owing to him on any account have been paid. If the owner be willing to pay the particular amount owing in respect of work done on the article, the workman must relinquish his lien on it and deliver it up, although there be other moneys due to him for work done on other articles or otherwise. (at p632)

3. The simplest application of these rules is seen when the thing delivered to the workman is a single chattel. But, of course, a thing may consist of several components. In such a case, although possession of a part of the thing be abandoned, the workman may yet retain the rest as security for the reward he was to have for doing work on the whole thing. The question is what was the thing or entity upon which the work was to be done. For example, if a pair of boots be delivered to a cobbler for repair and he for some reason allows the owner to take away one boot before he is paid, he may still refuse to deliver the other until he be paid the price of repairing the pair. Similarly, if a bookbinder contracts to bind a work consisting of several volumes he can maintain a lien over one volume for the whole price, notwithstanding that he had delivered the other volumes. It is not necessary to go through the authorities that were cited to us. Some of the earlier ones show that, at one period, the courts were inclined to approach the question by asking whether the usages of a particular trade or the circumstances of a particular case justified a general lien as distinct from a particular lien. But, notwithstanding Lord Ellenborough's statement of the printer in Blake v. Nicholson [1814] EngR 622; (1814) 3 M & S 167 (105 ER 573) that "the nature of his work affords a reason for his general lien", the lien asserted was in reality a particular lien and the basis of the decision is that stated by Bayley J.: "He does a certain portion of one entire work". All the decisions are referable to the same principle. As long ago as 1754 the question arose in a contest between the assignee of a bankrupt and a person claiming a lien, and it was resolved by Lord Hardwicke in favour of the assignee: Ex parte Ockenden; Re Matthews [1754] EngR 204; (1754) 1 Atk 235 (26 ER 151) . Except in trades and callings where the law recognizes that by usage general liens exist, a lien for work done upon goods is a particular lien only. It attaches to the thing, or to a part of the thing, on which work was done. It is not essential to the creation of a particular lien that every part of the postulated thing be delivered at the one time. But, if there be separate deliveries, they must not be of separate things but of several parts making up the whole thing on which work is to be done. That thing may be a single chattel or a specific quantity or parcel of goods. But for a particular lien to attach, the subject matter of the work must always be something that the parties treated as an entirety in their dealings with one another concerning the work to be done on it. (at p633)

4. Turning now to apply these principles to the facts of this case: The appellant is the owner of an abattoir or slaughter-house. Before the company, L. G. Batten Pty Ltd., went into liquidation an arrangement existed between it and the appellant whereby the appellant was to kill for L.G.Batten Pty. Ltd. cattle that it from time to time should send in and prepare the meat thus produced for sale in Australia or for export. The appellant was to be paid according to the number of head of cattle so killed and treated. It is not, we think, necessary to determine whether there was a contractual obligation on the part of the appellant to kill such cattle as L. G. Batten Pty. Ltd. should supply and on the part of L. G. Batten to supply beasts to be killed - or whether, on the other hand, there was merely a standing offer by the appellant to kill, for a stipulated reward, such beasts up to a stipulated number, as L. G. Batten Pty. Ltd. might send in each week. The decision of this case does not depend upon whether there was a continuing contract to kill beasts delivered or a series of contracts made as each delivery was made. What happened is that in September 1959 L. G. Batten Pty. Ltd. was considerably indebted to the appellant for unpaid charges in respect of beasts killed and meat delivered. The appellant had on hand a quantity of meat, the produce of cattle belonging to L. G. Batten Pty Ltd. that it had killed. It claimed a lien on this meat for the whole debt owing to it. The liquidators of L. G. Batten Pty. Ltd. have refused to recognize this claim. They do not dispute that the delivery of a beast for the purpose of killing could result in a particular lien over the meat thus produced. But they contend that the appellant had lost its lien over the meat that had gone out of its possession, and that its lien over that which remained in its possession was for such sum only as was attributable to killing and treating the beasts from which that meat was produced. This they, the liquidators, concede to be a sum of 529 pounds 11s. 0d. The learned Chief Justice of Queensland upheld the contention of the liquidators and answered the questions accordingly. In our opinion he correctly applied the principles that we have stated. It is not suggested that slaughtererers have by law a general lien, or that in this case a general lien was expressly created by contract. A particular lien only is relied upon. It is not possible to conclude from the arrangements made or the course of dealing that all the cattle that from time to time were delivered by L. G. Batten Pty. Ltd. were delivered as a single and specific thing or entity to the separate parts of which a lien could attach for the whole of whatever indebtedness to the appellant L. G. Batten Pty. Ltd. should incur. The appeal should therefore be dismissed. (at p634)

ORDER

Appeal dismissed with costs.