Disposing of uncollected goods

The Act covers bailment of three types of goods:

1. ‘Prescribed goods’ under the regulations – e.g. motor vehicle parts, motor vehicle accessories and batteries.
2. Goods not exceeding $3,500 in value – e.g. a vehicle fit for wrecking only or vehicle parts.
3. Goods exceeding $3,500 in value – e.g. a motor vehicle.

‘Bailment’ is the delivery of goods by their owner (the bailor) to another person (the bailee) upon a promise that they will be returned by the owner. For example, if a motor vehicle is left at a workshop for repair, the repairer is the bailee of the motor vehicle and the customer is the bailor as they are the owner of the goods.

Whether or not goods are considered to be ready for redelivery will depend on the circumstances by which the goods were initially accepted.

For example, if a motor vehicle is left by a customer at a workshop for inspection and repair, the goods will be considered ready for collection when the inspection and repair have been carried out.

1. If the goods were accepted for repair or other treatment, then they are ready for redelivery when the repair or other treatment has been carried out
2. If the goods were accepted for inspection, they are ready for redelivery when the inspection has been carried out.
3. If the goods were accepted for custody, they will be ready for redelivery when the period of custody has expired:
   • if there is no specified period of arranged custody, then the period is taken to be seven (7) days after they are so accepted.
4. If the goods were accepted for storage, they will be ready for redelivery when the period of arranged storage has expired, or seven (7) days if no arrangement was made.

Generally, service of documents can be done in the following ways:

1. Personal service by delivering the document to the party personally.
2. Posting the document to the party’s last known address.
3. Leaving the document at the party’s residence, or if they are a principal of a business, at the usual or last known place of business.
4. In the case of a corporation or association, by delivering or posting the document to its principal place of business or registered office in Western Australia.

It is a matter for you to decide how you will serve the documents and it may depend on the particular circumstances. If in doubt, you should seek independent legal advice. It is recommended you use registered mail when posting documents as this will give you a received/ return record.

It is important to consider what records you keep in relation to the goods which are held at your premises. Whatever disposal method is used for the goods, be sure to keep a record of communication with the customer, every notice sent and documents relating to your costs for storing and disposing of the goods. The Act requires that within seven days of selling or disposing of uncollected goods you must record the details of the sale or disposal in either Form 13 or Form 14, depending on whether it is a disposal by court order. This record together with the notices sent to your customer must be retained for a period of six years.

NOTE: All references to forms are those set out in Schedule 2 of the Regulations. After the goods are ready for redelivery to the customer, the following action is required. Written notice must be given to advise the customer that their goods can be collected by:

• completing a Form 1 ‘notice that goods are ready for redelivery’; and
• serving this notice on the person who left the goods with you. If you have not already done so, you may wish to advise the customer at the same time as serving the Form 1 that charges for storage will be incurred if the goods are not collected by a particular date.

Summary of procedure

• If you receive a ‘Notice of dispute’ from the customer, please refer to Part 8 of this publication for further information.
• If you have not received a ‘Notice of dispute’ and the customer has not collected the goods within three months of the date of serving the Form 1 on the customer, a second notice must be given to the customer telling them that you are going to dispose of the goods. This notice is a Form 2 ‘Notice of intention to sell or otherwise dispose of goods’.
• Deliver a copy of Form 2 to each of the following:
  • the person who gave you the goods;
  • every person who you know claims an interest in the goods; and
  • the Commissioner of Police.
• It is important to keep a record of the service details that is, who served the form, the date, the time, place of delivery, for each of the notices you serve under the Act.
• If you have not received a ‘Notice of dispute’ within one month after serving of the Form 2, you may attempt to dispose of the goods by auction or private sale.
• Keep trying to sell the goods for one month.
• If you are unable to sell the goods, and if you have not received a ‘Notice of dispute’, you may dispose of the goods in whatever manner you choose.
• If you sell the goods:
  • deduct from the proceeds all of your lawful and reasonable moneys owed, charges and sale expenses including advertising, storage, sales commission, insurance, etc;
  • if there is a shortfall, you may claim the balance from the party who left the goods with you as a debt in a court of competent jurisdiction;
  • if there is a surplus, deliver the surplus to the person who left the goods with you; and
  • if the person who left the goods with you cannot be found and the surplus remains unclaimed for 28 days, lodge the surplus with the State Treasury along with a Form 13 ‘Record of goods disposed of, not under court order’.
• If you dispose of the goods other than by sale, you may claim your outstanding charges from the party Disposal of Uncollected Goods Act 3 Department of Energy, Mines, Industry Regulation and Safety who left the goods with you as a debt in a court of competent jurisdiction.
• Within seven days after the sale or other disposal you must complete a Form 13 ‘Record of goods disposed of, not under court order’.

NOTE: All references to forms are those set out in Schedule 2 of the Regulations.

After the goods are ready for redelivery to the customer, written notice must be given to advise the customer that their goods can be collected by:

• completing a Form 1 ‘Notice that goods are ready for redelivery’ 
• serving this notice on the person who left the goods with you.

If you have not already done so, you may wish to advise the customer at the same time as serving Form 1 that charges for storage will be incurred if the goods are not collected by a particular date.

Summary of procedure

• If you receive a ‘Notice of dispute’ from the customer, please refer to Part 8 of this publication for further information.
• If you have not received a ‘Notice of dispute’ and the customer has not collected the goods within six months of the date of serving the Form 1 on the customer, a second notice must be given to the customer informing them that you are going to dispose of the goods. This notice is a Form 2 ‘Notice of intention to sell or otherwise dispose of goods’:
  • A copy of the Form 2 must also be served on anyone you know who has an interest in the goods and the Commissioner of Police.
  • A notice must also be published in a newspaper with state circulation and in the Government Gazette.
• It is important to keep a record of the service details i.e who served the form, the date, the time and place of delivery for each of the notices that you serve under the Act.
• If after one month the customer does not respond to the second notice, you can sell the goods by public auction. If the goods are not sold at public auction after there have been two attempts at sale at auction not less than 14 days apart, then you may dispose of the goods in whatever manner you choose.
• If you sell the goods:
  • deduct from the proceeds all of your lawful and reasonable monies owed, charges and sale expenses (including advertising, storage, sales commission, insurance, etc.) 
  • if there is a shortfall, you may claim the balance from the party who left the goods with you, as a debt in a court of competent jurisdiction
  • if there is a surplus, deliver the surplus to the person who left the goods with you
  • if the person who left the goods with you cannot be found and the surplus remains unclaimed for 28 days, lodge the surplus with the State Treasury along with a Form 13 ‘Record of goods disposed of, not under court order’.
• If you dispose of the goods other than by sale, you may claim your outstanding charges from the party who left the goods with you as a debt in a court of competent jurisdiction.
• Within seven (7) days after the sale or other disposal you must complete a Form 13 ‘Record of goods disposed of, not under court order’.

All references to forms are those set out in Schedule 2 of the Regulations.

After the goods are ready for redelivery to the customer, written notice must be given to advise the customer that their goods can be collected by:

• completing a Form 1 ‘Notice that goods are ready for redelivery’
• serving this notice on the person who left the goods with you.

If you have not already done so, you may wish to advise the customer at the same time as serving the Form 1 that charges for storage will be incurred if the goods are not collected by a particular date.

Summary of procedure

• If you receive a ‘Notice of dispute’ from the customer, please refer to Part 8 of this publication for further information.
• If you have not received a ‘Notice of dispute’ and the customer has not collected the goods within six months of the date of serving the Form 1 on the customer, a second notice must be given to the customer informing them that you are going todispose of the goods. This notice is a Form 4 ‘Notice of intention to apply for an order to sell or otherwise dispose of goods in excess of $3,500’.
• Deliver a copy of Form 4 to each of the following:
  • the person who gave you the goods
  • every person who you know claims an interest in the goods
  • the Commissioner of Police
  • a notice must also be published in a newspaper with state circulation and in the Government Gazette.
• It important to keep a record of the service details that is, who served the form, the date, the time and place of delivery, for each of the notices that you serve under the Act.
• If after one month the customer does not respond to the second notice, you can apply to the Magistrates Court for an order to sell or dispose of the goods by filling out a Form 8 ‘Application under part vi for an order to sell or otherwise dispose of goods valued in excess of $3,500’. There is a filing fee attached to this application. Visit www.magistratescourt.wa.gov.au for more information.
• A copy of the Form 8 application must be served on the customer, along with anyone you know has an interest in the goods.
• A Form 11 ‘Endorsement of service’ should be completed, with a copy of the Form 8 attached,to prove the form was served in accordance to the Act.
• The court will give you a place, date and time for the hearing of the application (the court notice).
• A copy of the court notice must be provided:
  • to the owner of the goods
  • to every person who you know claims an interest in the article
  • for yourself.
• Attend the hearing at the time and place on the court notice.
• At the hearing:
  • ensure that any witnesses you wish to call, attend the hearing with you;
  • take copies of all the paperwork you have completed in complying with the Act; and
  • have details of all the costs and expenses you have incurred complying with the provisions of the Act and the court will decide what is a reasonable cost to pass on to the person who left the goods with you.

The court has the power to order the disposal of the goods and to award costs such as storage fees, advertising fees and any other fees you have paid to comply with the provisions of the Act.

Refer to Part 9, ‘Once a court order has been obtained’ of this publication for further information.

There is no prescribed form set out in the regulations. The notice of dispute needs to set out in adequate detail what the owner is disputing.

• An owner of the goods may refuse to either:
  • pay the sum that you claim to be due by way of charges in relation to the goods
  • take re-delivery of the goods
  • give directions for re-delivery of the goods
  • accept that the goods described in the notice are Prescribed Goods
  • accept the accuracy of the assessment of the value of the goods as not exceeding $3,500
• On any of the following grounds:
  • the charges are excessive 
  • the owner is not satisfied that the inspection, custody, storage, repair or other treatment of the goods has been properly carried out.

If you receive a notice of dispute, you may not sell or otherwise dispose of the goods until the dispute has been determined.

The steps to take are:

• Contact the owner and attempt to resolve the dispute.
• If successful, you are likely to have resolved the whole problem but you may still wish to continue to dispose of the goods.

• If you sell the goods (pursuant to the court order):
  • deduct from the proceeds all of your lawful andreasonable moneys owed, charges and saleexpenses including advertising, storage, salescommission, insurance, etc.
  • if there is a shortfall, you may claim the balance from the party who left the goods with you as a debt in any court with appropriate jurisdiction;
  • if there is a surplus, deliver the surplus to the person who left the goods with you if the person who left the goods with you cannot be found and the surplus remains unclaimed for 28 days, lodge the surplus with the State Treasury with a Form 14 ‘Record to goods disposed of pursuant to a court order’.
• If you dispose of the goods, other than by sale you may claim your outstanding charges from the party who left the goods with you as a debt in any court with appropriate jurisdiction.
• Within seven days after the date of sale or other disposal you must complete a Form 14 ‘Record of goods disposed of pursuant to a court order’.
• Within 14 days after the date of sale or other disposal you must file a copy of Form 14 ‘Record of goods disposed of pursuant to a court order’ in the court, where any person claiming an interest in the goods may inspect it.

NOTE: Failure to comply with the above provisions regarding the completion and filing of Form 14, or preparation of a document that is false leaves you liable for prosecution under the Act.