Generally speaking, a lien allows a person to retain possession of another person’s property until the costs or monies have been paid for it.
There can be a statutory lien which gives a person the right to hold the goods until the seller’s monies are paid.
Under the common law there can be a general or particular lien. A particular lien which is more common refers to a person holding goods for work done on those goods until accounts have been paid. Examples of this are a mechanic holding a car until a bill is paid or a solicitor holding a file until their account is paid.
A general lien however allows the person to hold the goods until all sums payable are satisfied. Again to use the prior analogy, mechanics holding a car for bills paid for that car as well as another car, or a solicitor holding a file regarding family law for work done on that file and a conveyance file.
An interesting case on this topic is Stapley v Towing Masters Pty Limited (trading a Dynamic Towing) [2009] NSW CA 382. This involved a tow truck driver claiming a lien over a vehicle. The case was bought by an insurer who argued that a tow truck driver did not have lien over the vehicle.
The facts in short are that the truck driver picked up a vehicle and was asked by the driver’s insurer to drop it to a service centre so that the insurer could assess the damage. When they went to deliver it the insurer refused to pay their account, so the tow truck driver took the car back to its depot and claimed a lien over it.
At first instance the court held that the tow truck driver was entitled to exercise a lien over the car as he was a common carrier.
The Court of Appeal however held that the tow truck driver was not a common carrier and therefore was not entitled to the lien. This matter turned on the facts and whether the tow truck driver was a common carrier and held himself out to pick up all jobs at reasonable rates without reservation.
If you should have any queries about goods being held until payment, please do not hesitate to call us at Everingham Solomons because Helping You is Our Business.
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