1. Mr Fitzgerald says the car was being driven by his daughter in October 2014, when it broke down. The RACV attended and advised that the timing belt had gone. The car was towed back home and Mr Fitzgerald contacted Mr Davis to have the repairs carried out.
2. Mr Davis attended the home of Mr Fitzgerald, inspected the vehicle and advised he would provide a quote that afternoon.
3. The parties have different versions of the conversation both at the house and on the phone.
4. Mr Fitzgerald says he told Mr Davis at the house that the RACV had told him the timing belt had gone. He says he told Mr Davis that he didn't have a lot of money, and that he wanted to go overseas to visit his dying mother, but didn't want to leave his daughter without a car.
5. Mr Davis agrees that Mr Fitzgerald advised he would have to borrow the funds to fix the car. He also says that in addition to Mr Fitzgerald telling him that the RACV had said the timing belt was gone, he also made reference to head damage being a consequence of a broken timing belt. Mr Fitzgerald denies having any knowledge of a broken timing belt and head damage being linked, until after the works were carried out.
6. Mr Fitzgerald claims that he was contacted by Mr Davis that afternoon by phone and told the repairs would cost $780. He says he gave the go-ahead for the works to proceed, and arranged for the RACV to tow the vehicle to Mr Davis' workshop.
7. Mr Davis says he phoned Mr Fitzgerald the morning after he attended at his house. He says he told Mr Fitzgerald that the costs of repairing the timing belt were around $800 and any head damage between twelve hundred and sixteen hundred dollars. Mr Fitzgerald denies there was any conversation about the head damage at this time.
8. The version put forward by Mr Davis was supported by the evidence of Peter Stevens, a friend of the Respondent. Mr Stevens gave evidence that he was present during the telephone call between the parties. He says he only heard one side of the conversation.
9. Ordinarily I would be sceptical of the corroborating evidence of a friend. However Mr Stevens presented as genuine and truthful. He made early concessions that he had only heard one side of the conversation. When questioned why he remembered this conversation, he said it was because of the unusual type of car that was being repaired, being a Citroen. Prior to Mr Stevens giving evidence, Mr Davis was asked about the evidence his friend would give. He advised the Tribunal that Mr Stevens was present when he phoned Mr Fitzgerald, but that the Tribunal should ask Mr Stevens directly what he recalled.
10. At the time that Mr Fitzgerald was arranging for the car to be repaired, he had already received the phone call that his mother was gravely ill. During the hearing he was still very upset as he gave evidence about receiving the call. I have no doubt that at the time the car broke down, Mr Fitzgerald was stressed and highly emotional.
11. Mr Davis provided the Tribunal with a statutory declaration from Mark Wilson, the RACV tow truck driver. The evidence contained within the declaration does not shed any light on the conversation had between the parties.
12. With the candour of the evidence of Mr Stevens supporting the version being put forward by Mr Davis, and given the state that Mr Fitzgerald was in at the time of the conversation that could have impacted on his recollection of the discussion, I prefer the evidence of Mr Davis. I find that it is more probable than not that Mr Fitzgerald was given the quote for not only the replacement of the timing belt, but for the possible repair to the head damage.
13. As a consequence, I find that Mr Fitzgerald is liable to pay for the parts and labour associated with the replacement of the timing belt in the amount of $789 and as such decline to make the declaration sought by the Applicant.

1. When Mr Fitzgerald disputed the amount to be paid for repairs, Mr Davis refused to allow the car to be taken away. Mr Davis claimed an entitlement to retain possession of the vehicle, called a repairer's lien.
2. This "right of retention" has been in existence in our courts for more than two centuries. Originally referred to as an "Artificer's Lien", it gives some security to a worker or craftsman who had used his skills to improve the value of a good.
3. In 1913, Justice Sargant of England's Chancery Division made reference to the long line of authorities giving rise to the existence of this particular lien:

"It was said by Mr. Crossfield that whenever an article is repaired, the repairer gets a lien on the article for the amount of his charges. Well, I do not dissent at all from that view of the law, assuming that the repairer gets the article in his shop for the purpose of repair and by that repair improves it, as he would ordinarily do."[1]

1. In 1928, the High Court of Australia had cause to look at the operation of the lien, when a person who gave the vehicle over for repairs, was not the owner of the truck.[2] References were made to the existence of this lien as early as 1743[3]. All members of the Court, in a joint judgment stated -

"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'".[4]

1. The lien will only be to the value of the works done. The repairer does not have any rights to charge for storage or maintaining the vehicle. If a mechanic chooses to exercise the lien, then he is responsible for the maintenance and storage of the vehicle while it is in his care. He also has no powers of sale, until a Court grants such a right[5].
2. Whether an artificer's lien exists will depend on the facts of the particular case. It is clear however that there are certain conditions that must be met to enliven its creation - (a) the goods must have been provided for the purpose of repair/improvement[6], (b) the goods must have been provided by the owner or someone with authority, (c) the goods must be improved by the repair[7], (d) the repairs must be carried out by a skilled tradesman[8] and (e) possession by the repairer cannot be broken[9].
3. Mr Fitzgerald, the owner, gave the car to Mr Davis, a qualified mechanic, to fix the timing belt. The timing belt has been replaced and as such the car has been improved by the repair. Mr Davis has retained possession of the vehicle since the repairs were carried out and Mr Fitzgerald has refused to pay for the repairs.
4. In the circumstances, Mr Davis is entitled to exercise a lien over the vehicle and retain possession of it until he is paid $789, being the value of the repairs.
5. I decline to make any order returning the vehicle to Mr Fitzgerald.
6. For the reasons contained herein, the application is dismissed.

[1] Hatton v Car Maintenance Company, Limited [1913] 1Ch 621 @ 623.

[2] Fisher v Automobile Finance Co of Australia Ltd [1928] HCA 35; [1928] 41 CLR 167.

[3] 1743 - Hartop v Hoare 3 Atk 43.

[4] Fisher v Automobile Finance Co of Australia Ltd [1928] HCA 35; [1928] 41 CLR 167 @ 174.

[5] Despite the recommendations contained in the report of the Statute Law Revision Committee of Victoria in 1959, no legislation has been enacted that gives a lien holder a right of sale. Bolwell Fibreglass Pty Ltd v Foley [1984] VicRp 8; [1984] VR 97 acknowledged the absence of this power - "Unless some additional right or power is conferred by statute, the artificer's lien does no more than entitle him to refuse to deliver up the article until he is paid for the work he has done on it........ It is clear that an artificer's lien gives no power of sale at common law and that there is as regards that lien no presently relevant statutory power of sale." See also section 54 of the Australian Consumer Law and Fair Trading Act 2012.

[6] Monk v Baines [2002] SADC 13 @ para 49.

[7] Stapley v Towing Masters Pty Ltd (trading as Dynamic Towing) [2009] NSWSC 139 @ para 72 - "The cases show that an artificer's lien arises only where the chattel is improved or increased in value by something done to its physical condition or character, such as where a car is repaired ..."

[8] Hatton v Car Maintenance Company, Limited [1913] 1Ch 621

[9] Monk v Baines [2002] SADC 13 @ para 50.