New South Wales Bills Explanatory Notes New South Wales Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The object of this Bill is to repeal and re-enact the provisions of the
Disposal of Uncollected Goods Act 1946 in the light of the recommendations
of the Law Reform Commission.
Outline of provisions
e (also called the short title) of the proposed Act.
Clause 2 provides that the proposed Act will commence on a day to be
proclaimed.
Clause 3 defines certain expressions (including bailed goods, bailee,
bailor, goods and publicly registered interest) for the purposes of the
proposed Act.
Clause 4 specifies that the object of the proposed Act is to provide persons
in possession of uncollected goods subject to bailment with the means of
disposing of those goods without incurring any liability to the bailor or any
other person. The means of disposal are by way of court order or after due
notice to the bailor and certain other persons.
Clause 5 defines uncollected goods for the purposes of the proposed Act.
Goods are uncollected if they are ready for delivery but not collected or if
the bailee cannot trace or communicate with the bailor to collect the goods.
The definition is similar to the definition in the corresponding U.K.
legislation, the Torts (Interference with Goods) Act 1977.
Clause 6 specifies that the proposed Act does not apply if there is an
agreement between the parties about the relevant matter concerning the
disposal of the goods. However, clause 32 applies despite any agreement to
the contrary. The proposed Act applies in addition to other statutory methods
of disposal.
Clause 7 provides that a person who disposes of uncollected bailed goods
in accordance with the proposed Act is not liable to any other person merely
because he or she has been a bailee of the goods.
Part 2 Disposal of Uncollected Goods by way of court
order
Clause 8 enables a bailee to apply to a Local Court for an order authorising
the disposal of uncollected goods.
Clause 9 empowers (but does not require) a Local Court to make an order
authorising the disposal of the uncollected goods. Such an order (if made)
must specify, among other things, the relevant charges due to the bailee in
respect of the goods.
Explanatory note page 2
Clause 10 defines relevant charges for the purposes of the proposed Part.
Relevant charges will include amounts for the carriage or storage of goods or
for repairs or other work done in connection with goods, for costs incurred
by a bailee for the storage, maintenance or insurance of goods and for costs
incurred by a bailee for the disposal of goods in accordance with the
proposed Part.
Clause 11 enables a Local Court to authorise the disposal of uncollected
goods even though there is a dispute between the bailor and the bailee as to
the amount owed or as to the condition of the goods or the nature or quality
of repairs or other work done in connection with the goods.
Clause 12 provides that goods to which an order under the proposed Part
relates may be disposed of in accordance with the order, but provides that
the goods may be redeemed (on payment of the relevant charges) at any time
before they are disposed of.
Clause 13 suspends the operation of an order under the proposed Part in
circumstances where other legal proceedings are taken for the recovery of
the goods to which the order relates. If any such proceedings are successful,
the order ceases to have effect.
Clause 14 entitles a bailee to retain from the proceeds of sale of goods
under the proposed Part the relevant charges due to the bailee in respect of
the goods, and provides that the remainder of the proceeds are to be dealt
with as if they were unclaimed money under the Unclaimed Money Act
1982. The clause preserves the right of the bailee to recover the amount of
any deficiency from the bailor as a debt.
Clause 15 requires a bailee to prepare a record in relation to goods
disposed of under the proposed Part and to keep the record for at least 6
years, and further provides that the bailee must make the record available, on
request, for inspection by the bailor or by any other person claiming an
interest in the goods.
Clause 16 enables the bailor to obtain judgment against the bailee for the
amount by which any money paid by the bailor to the bailee in connection
with the goods exceeds the relevant charges determined by the Local Court.
Clause 17 requires the jurisdiction conferred on a Local Court by the
proposed Part to be exercised by a Magistrate. However, the Local Court is
denied jurisdiction if the value of the goods concerned exceeds the Court's
civil jurisdiction under the Local Courts (Civil Claims) Act 1970. The clause
also ensures that the usual appeal process for Local Court civil claims
jurisdiction applies.
Explanatory note page 3
Clause 18 enables the jurisdiction of a Local Court under the proposed Part
to be exercised by the Supreme Court (with leave) even though the value of
the goods concerned exceeds the jurisdictional limit of a Local Court.
Part 3 Disposal of uncollected goods after due notice to
bailor
Clause 19 applies the proposed Part to uncollected bailed goods whose
value is less than $5,000. The proposed Part is not to apply to goods in
respect of which there is a dispute between the bailor and the bailee as to the
amount owed or as to the condition of the goods or the nature or quality of
repairs or other work done in connection with the goods.
Clause 20 enables a bailee to dispose of uncollected goods of up to $100 in
value, in whatever manner the bailee considers appropriate, after the bailor
has been notified, orally or in writing, of the bailee's intention to dispose of
the goods and has been given at least 28 days in which to collect them.
Clause 21 enables a bailee to dispose of uncollected goods of between
$100 and $500 in value, by public auction or private sale only, if the owner
of the goods and each person having or claiming an interest in the goods
have been notified, in writing, of the bailee's intention to dispose of the
goods and been given at least 3 months in which to collect them.
Clause 22 enables a bailee to dispose of uncollected goods of between
$500 and $5,000 in value, by public auction only, if the owner of the goods
and each person having or claiming an interest in the goods have been
notified, in writing, of the bailee's intention to dispose of the goods and been
given at least 6 months in which to collect them, and if a copy of the notice
has been published in a daily newspaper at least 28 days before the goods
are disposed of.
Clause 23 authorises the variation by regulation of the monetary limits
referred to in clauses 1922.
Clause 24 enables a bailee to dispose of uncollected perishable goods, in
whatever manner the bailee considers appropriate, after the bailor has been
notified, orally or in writing, of the bailee's intention to dispose of the goods
and has been given a reasonable opportunity to collect the goods.
Clause 25 provides that there is no requirement to give a notice of intention
to dispose of uncollected goods to a person (other than the bailor or a person
who has a publicly registered interest in the goods) if the bailee is unaware
of the fact that the person has or claims an interest in the goods or cannot
trace or communicate with the person.
Explanatory note page 4
Clause 27 provides that a notice under the proposed Part may be served
personally or by post.
Clause 28 defines relevant charges for the purposes of the proposed Part.
Relevant charges will include amounts for the carriage or storage of goods or
for repairs or other work done in connection with goods, for costs incurred
by a bailee for the storage, maintenance or insurance of goods and for costs
incurred by a bailee for the disposal of goods in accordance with the
proposed Act.
Clause 29 entitles a bailee to retain from the proceeds of sale of goods
under the proposed Part the relevant charges due to the bailee in respect of
the goods, and provides that the remainder of the proceeds are to be dealt
with as if they were unclaimed money under the Unclaimed Money Act
1982. The clause preserves the right of the bailee to recover the amount of
any deficiency from the bailor as a debt.
Clause 30 requires a bailee to prepare a record in relation to goods
disposed of under the proposed Part and to keep the record for at least 6
years, and further provides that the bailee must make the record available, on
request, for inspection by the bailor or by any other person claiming an
interest in the goods.
Clause 31 prohibits the sale of a motor vehicle under the proposed Part
unless the seller obtains a certificate from the Commissioner of Police to the
effect that the motor vehicle is not for the time being recorded as being
stolen.
Part 4 Miscellaneous
Clause 32 specifies a minimum period of 3 months within which certain
commercial bailees may, by agreement with the bailor, dispose of
uncollected goods.
Clause 33 preserves the operation of the common law in relation to the
bailment of goods except to the extent that it is modified by the proposed
Act.
Clause 34 provides that the purchaser of any goods sold under the
proposed Act acquires a good title to the goods, free of any other interest, if
the goods are bought without notice of any failure by the bailee to comply
with the provisions of the proposed Act or of any defect or want of title in
the bailor.
Explanatory note page 5
Clause 36 provides that the proposed Act is to bind the Crown.
Clause 37 provides that proceedings for an offence against the proposed
Act are to be dealt with summarily by a Local Court constituted by a
Magistrate.
Clause 38 empowers the Governor to make regulations for the purposes of
the proposed Act.
Clause 39 repeals the Disposal of Uncollected Goods Act 1966.
Clause 40 is a formal provision that gives effect to the Schedule of savings,
transitional and other provisions.
Clause 41 requires the Minister to review the operation of the proposed Act
after 5 years and report to Parliament on whether it is still appropriate.
Schedule 1 Savings, Transitional and other provisions
The Schedule contains 2 Parts. Part 1 contains a provision empowering the
regulations to contain provisions of a savings or transitional nature
consequent on the proposed repeal of the Disposal of Uncollected Goods Act
1966 (clause 1). Part 2 contains provisions:
defining certain expressions for the purposes of the proposed Part
(clause 2),
applying the proposed Act to existing bailments (clause 3),
continuing the effect of Part 2 of the repealed Act with respect to
certain goods (clause 4),
continuing the effect of section 6 of the repealed Act with respect to
the resolution of certain disputes (clause 5),
continuing the effect of Part 3 of the repealed Act with respect to
certain goods (clause 6),
applying section 32 of the proposed Act to future bailments only
(clause 7), and
applying sections 34 and 35 of the proposed Act to goods disposed of
under the repealed Act (clause 8).
Explanatory note page 6