Pacific Formwork (Aust) Holdings Pty Ltd v United Rentals Australia Pty Ltd [2025] ACTSC 143

1. In February 2019, a company called Wridgways Pty Ltd hired nine shipping containers from the respondent, United Rentals Australia Pty Ltd (formerly known as Royal Wolf). Wridgways stored the containers on land it had subleased from the appellant, Pacific Formwork (Aust) Holdings Pty Ltd. In late 2020, the first year of the COVID pandemic, Wridgways went into liquidation. Pacific subsequently terminated the sublease and in due course Wridgways vacated the land, leaving United’s shipping containers (and, apparently, many other possessions) behind.

2. In October 2021, following extensive correspondence between the parties, United demanded the return of the containers from Pacific. Pacific responded by issuing a notice to collect goods under s 7 of the Uncollected Goods Act 1996 (ACT) (described by its long title as “an Act to provide for the disposal of uncollected, lost or abandoned goods, and for related purposes”). Part 2 of that Act prescribes the circumstances in which goods will be deemed to be “uncollected goods”. Part 3 makes provision for the disposal of uncollected goods by the person left in possession of the goods.

3. One of the circumstances in which goods are deemed to be uncollected goods is where the owner has refused or failed to comply with a request made in accordance with s 7 to collect the goods. A request under that section is to include a statement of “any costs that must be met by the owner before the goods will be released by the possessor”. Pacific’s request to United to collect its nine shipping containers stated that United was required to pay $69,518.03 (significantly more than the value of the containers) before the containers would be released.

Proceedings in the Magistrates Court

4. United refused to pay the costs required by Pacific and brought a common law action in the Magistrates Court claiming damages for trespass, conversion or detinue and, in the alternative, delivery up of the containers. The amount of damages claimed by United in those proceedings was $47,723.76, the most part of which was a claim for $45,000 for the value of the containers (indicating a value of $5000 per container). Pacific filed a defence admitting that United owned the containers but contending that it held them as a “possessor” within the meaning of s 3 of the Uncollected Goods Act. Pacific also filed a counterclaim for “payment of its reasonable costs pursuant to [s 7(2)(b)(v)] and s 26(2) of the Act”. As I will explain, the counterclaim was misconceived. The Uncollected Goods Act does not create a cause of action for recovery of such costs as a debt. The remedy it creates operates by way of statutory lien over the goods giving rise to a power of disposal in the event that reasonable costs are not paid by the owner.

5. United does not appear to have taken that point. It filed a reply to the defence and defence to the counterclaim disputing that the shipping containers were governed by the Uncollected Goods Act as at the date on which United requested possession of them. Alternatively, on the assumption (which was denied) that the Uncollected Goods Act did apply, United sought a review pursuant to s 27 of the Act of the costs Pacific required United to pay under s 26(2) of the Act.

6. The proceedings were heard by the Chief Magistrate. Her Honour gave four separate rulings which were later collected in a combined decision published on 28 August 2023: United Rentals Australia Pty Ltd v Pacific Formwork (Aust) Holdings Pty Ltd [2023] ACTMC 30.

7. The first ruling, given ex tempore on 5 September 2022, dealt with the question of the application of the Uncollected Goods Act. The Chief Magistrate held that the Act applied and that the notice under s 7 issued by Pacific for collection of the goods was “substantially compliant rendering the goods ‘uncollected goods’”: combined decision at [32]. Her Honour accordingly held that the s 7 notice could “be relied upon to enliven subsequent rights and obligations under the Act”.

8. The second ruling was given on 8 September 2022. On that occasion, the Chief Magistrate heard submissions as to what should happen next, following her ruling given earlier that week. United submitted that, notwithstanding Her Honour’s ruling, there was “still a case for trespass, detinue and conversion for the period up until 8 November 2021” (the date on which Pacific specified the costs claimed under s 26(2) of the Uncollected Goods Act). Pacific submitted that United’s common law claim was precluded by s 32 of the Act and that all that remained to be determined was the reasonableness of the costs it had required United to pay in the request to collect goods. The mechanism for determination of that issue was for the Court to conduct a review of those costs, as allowed under s 27 of the Act. As already noted, United had sought such a review (as alternative relief) in its reply to Pacific’s counterclaim.

9. The Chief Magistrate accepted Pacific’s submission that United’s common law claims were barred by operation of s 32 of the Act. Her Honour fixed a timetable for the filing of evidence in respect of United’s alternative application for a review of the costs: combined decision at [40].

10. The third ruling, given on 30 March 2023, determined the review of those costs. The Chief Magistrate was not satisfied that the costs claimed by Pacific were reasonable. Her Honour held (combined decision at [85]): they were not arrived at on a proper basis; they were allowed to accumulate even though United was keen to get their containers back; it would be akin to unjust enrichment to Pacific, especially as there is no evidence of any actual loss - other than a much larger payment to a related company for no apparent reason. Absent any other reliable evidence as to what costs were in fact incurred, there is no basis for Pacific to recover costs from United.

11. The Chief Magistrate accordingly made the following orders (recorded at [86]-[87] of the combined decision): (1) The originating claim [United’s claim seeking damages for trespass, conversion or detinue] is statute barred. (2) The counterclaim [Pacific’s claim seeking recovery of its costs associated with being a possessor of the shipping containers] is dismissed.

12. Her Honour further ordered that each party was to bear its own costs unless submissions to the contrary were received by 4pm on 6 April 2023. Submissions to the contrary were received.

13. The fourth ruling, given on 28 August 2023, determined the competing applications as to costs. The Chief Magistrate held at [97] of the combined decision that, as the Uncollected Goods Act applied, United’s common law claims were “ill-conceived” and “unnecessary”. Her Honour said at [97]-[98]: At all times the real issues between the parties were United’s desire to have the shipping containers back and Pacific’s demand for costs they claimed to have incurred in holding them. Pacific had no desire to keep the containers but its demand for costs was, as I have found, unreasonable. Whilst the tone of communications between the parties was at times terse, it is clear that Pacific was keen to engage in the essential discussion of “how much” prior to and after the commencement of proceedings. Unfortunately, the litigation became unnecessarily protracted due to the parties’ inability to engage with the real issues in dispute.

14. In light of the conclusion that the common law claims were ill-conceived, the Chief Magistrate awarded Pacific its costs of the proceedings until 8 September 2022 (the date of the second ruling). Her Honour noted that, after that date, the sole issue to be determined was the reasonableness of the costs Pacific required United to pay before collecting the goods. Her Honour noted her finding that Pacific’s position as to the costs it claimed was “evidentially untenable” and accordingly ruled that United should have its costs from 9 September 2022 to 20 April 2023, when final submissions were filed. Her Honour rejected an application for a special costs order and ordered that the costs awarded would be on a party/party basis.

Appeal and cross-appeal

15. Both parties have appealed from those decisions. Although the combined decision was published on 28 August 2023, it records the orders determining the originating claim and counterclaim as having been made on 30 March 2023. It is common ground that the time to appeal ran from that date.

Pacific’s appeal

16. Pacific mistakenly sought to commence its appeal by filing an application for leave to appeal. The application for leave to appeal was filed on 27 April 2023 and attached a draft notice of appeal. No notice of appeal has ever been filed.

17. On 28 June 2023, United filed an application seeking an order that Pacific’s application for leave to appeal be struck out as incompetent. On 20 July 2023, the Registrar dismissed that application. The Registrar granted leave for the application for leave to appeal to be heard at the same time as the substantive appeal.

18. However, by the time of the hearing before me, it was common ground that an application for leave to appeal was the wrong process because Pacific’s appeal lies as of right under s 274(2) of the Magistrates Court Act 1930 (ACT), the amount in dispute exceeding $2,000.

United’s cross-appeal

19. On 30 May 2023, United filed a notice of cross-appeal. Pacific initially submitted that United should instead have started a separate appeal, but that argument was (with respect, correctly) abandoned at the hearing. Rule 5112 of the Court Procedures Rules 2006 (ACT) expressly provides that a respondent who wants to appeal from all or part of the order appealed from “need not start a substantive appeal” but must file a notice of cross-appeal. Rule 5112 further provides that the time for filing a cross-appeal is “not later than 28 days after the day the notice of appeal is served on the respondent”. In fact, because Pacific’s appeal was mistakenly commenced by an application for leave to appeal (which arguably does not commence an appeal at all), no notice of appeal was served on United (only a draft notice of appeal). The parties did not inform me of the date on which the draft notice of appeal was served. No notice of appeal has ever been filed.

20. In short, despite having mistakenly used the wrong process for commencing its own appeal, Pacific sought to take a point against United by contending that it had used the wrong process and was out of time in circumstances where United used the process that would have been correct and could have been within time but for the fact that Pacific used the wrong process.

21. Thankfully, the point was abandoned at the hearing of the appeal. However, following the concessions made, it is necessary to regularise the irregularities in the processes adopted by the parties. Orders (1) to (3) at the conclusion of this judgment address those issues.

Circumstances in which the dispute arose

22. Wridgways’ abandonment of all manner of goods and equipment at the premises it had subleased undoubtedly created a deal of botheration for Pacific as lessee of the land. Amidst the chaos it was left to resolve, Pacific appears to have been proceeding, at least until 1 August 2021, on the assumption that the shipping containers were uncollected goods. That is the inference I draw from an email of that date to Pacific from Jessica Webb. The Chief Magistrate took Ms Webb to be acting for United but I apprehend she may have been writing on behalf of the liquidator of Wridgways. She wrote “the assets held include containers which are not assets of the company and are owned by Royal Wolf” (the former name of United). Ms Webb asked Pacific to confirm “the process undertaken to determine the goods were uncollected”.

23. Andre Ferreira of Pacific responded, “our lawyers have advised us that they are uncollected goods and they determined that they are uncollected goods as when they vacated the premises, their lease was terminated, and they left the goods on our site and didn’t collect them”. The reference to “they” in that response is plainly a reference to Wridgways, whereas Ms Webb was making the point that the containers belonged to Royal Wolf. Ms Webb asked Mr Ferreira to provide the unit numbers of the storage containers. He was not immediately able to do so due to COVID lockdown laws but eventually provided photographs of the containers. During those exchanges, Ms Webb informed Mr Ferreira that the containers were an asset of Royal Wolf and were required to be returned to Royal Wolf. She repeated that advice in an email dated 11 October 2021. In response to that email, Mr Ferreira claimed that, as far as he was aware, a quote had been submitted to Royal Wolf but that Royal Wolf had declined to pay or negotiate. There is no documentary evidence to support that claim and indeed it is contradicted by what happened next.

24. On 15 October 2021, Craig Baker of Royal Wolf wrote to Mr Ferreira expressing confusion as to the position adopted by Mr Ferreira and asking “please advise how I can assist here to vacate the Royal Wolf units on your property … ASAP… If I have missed any previous correspondence I do apologise …”

25. On 18 October 2021, Grace Ferreira responded to Mr Baker stating, “the matter is being attended to, you will have an invoice this afternoon, once paid containers will be released”. An invoice was evidently sent on 18 October 2021 as an attachment to an email but it is not clear whether that attachment is included within the tender bundle.

26. On 22 October 2021, Mr Lipschitz, In-House Counsel at Royal Wolf (by now renamed United Rentals Australia Pty Ltd) disputed Pacific’s legal entitlement to charge United for storage of the containers. Specifically, Mr Lipschitz pointed out that United had not refused or failed to comply with a request made in accordance with s 7 to collect the goods, which is a predicate to the operation of the deeming provision in s 5(1)(c) of the Act. Section 5(1) provides that goods: shall be deemed to be uncollected goods for this Act: … (c) where the goods are received or held by the possessor in the absence of any agreement regarding collection of the goods— (i) in the case of perishable goods or goods of no value—immediately the goods are received or held by the possessor; or (ii) in the case of any other goods—the owner has refused or failed to comply with a request made in accordance with section 7 to collect the goods; and

27. At that point, Pacific brought the lawyers in. On 25 October 2021, Aulich Lawyers wrote to Mr Lipschitz noting that there was no arrangement between United and Pacific and that Pacific had never agreed to accept United’s goods for storage or handling. The letter continued: The goods referred to in your letter were left in the premises by the tenant, Wridgway’s. If those goods belong to your client, that is a matter between your client and Wridgway’s and has nothing to do with my client. It is unfortunate that our respective clients have been left in this position by Wridgway’s, however there is no getting around the position that each had a separate agreement with Wridgway’s. As I am sure you can appreciate, my client has incurred considerable expense in making good the premises, including transporting and storing the containers requested by your client. My client is entitled to require those costs to be reimbursed by your client prior to handing over the goods, in accordance with s 26 of the Act. My client is not trying to be difficult, it is simply trying to recover its reasonable expenses in transporting and storing the goods, as it is plainly entitled to do under the Act.

28. Mr Lipschitz responded by contending that s 26 of the Act was irrelevant because the containers were not “uncollected goods” within the meaning of the Act (because United had not at that point refused or failed to comply with any request made in accordance with s 7 to collect the goods). The correspondence continued in a lawyerly way until 8 November 2021, by which time United had also brought in private lawyers. On that date, Aulich on behalf of Pacific sent a formal letter to Bartier Perry on behalf of United invoking the Uncollected Goods Act and requesting United to collect the goods upon payment of an invoice for $69,518.03 for “warehousing services”. After a further exchange of letters between the lawyers, a stalemate was reached and the litigation began.

United’s cross-appeal

29. It is logical to address the cross-appeal first. United challenges the Chief Magistrate’s first ruling (that the Uncollected Goods Act applied) and the second ruling (that the application of that Act had the effect of barring the common law claims). In the event of either of those rulings being reversed, there is a separate challenge to the fourth ruling (the legal costs decision).

30. The grounds specified in the cross-appeal are: (a) Her Honour erred in law when her Honour found that: i. the Shipping Containers were held by the Appellant in the absence of an agreement regarding collection of the goods within the meaning of subsection 5(1)(c) of the Uncollected Goods Act 1996 (ACT); ii. a notice under subsection 7(2) of the Act need only comply substantially with that section to be valid; and iii. the statement of costs in a notice under subsection 7(2) of the Act need not be reasonable costs within the meaning of subsection 26(2) of the Act or otherwise. (b) Her Honour erred when her Honour made a factual finding that the purported notice under subsection 7(2) of the Act issued by the appellant was “substantially compliant” with subsection 7(2) of the Act. (c) Her Honour erred when her Honour made a factual finding that the statement of costs contained in the purported notice under subsection 7(2) of the Act issued by the appellant did not render the notice non-compliant with the Act. (d) As a consequence of one or more of the grounds set out in paragraphs (a) to (c) above, her Honour held that the Shipping Containers are uncollected goods within the meaning of the Act.

31. Ground (a)(i) was implicitly (if not expressly) abandoned. It was not addressed in the submissions. As already noted, both parties conceded in the correspondence preceding the litigation that there was no agreement between Pacific and United regarding collection of the goods. It follows that s 5(1)(c) was the applicable provision, as held by the Chief Magistrate. Perhaps overlooking ground (a)(i), counsel for United at the appeal stated that neither party in the appeal had taken issue with that finding. The only point concerning s 5(1)(c) argued at the hearing of the appeal was “that in the absence of a request being made under 5(1)(c)(ii), at no time did these goods become uncollected goods under the Act”. That argument is directed to the second limb of the deeming provision in s 5(1)(c). In the circumstances, if ground (a)(i) was not abandoned, I reject it.

Whether United’s common law claims were barred by statute

32. United’s submissions first addressed the Chief Magistrate’s conclusion that, because the shipping containers were uncollected goods within the meaning of the Uncollected Goods Act, United’s common law claims were barred by operation of s 32 of the Act (said to be the point made by ground (d)). The argument was premised on the proposition that United made a “valid demand” for the return of the containers before Pacific required their collection in terms that invoked the Uncollected Goods Act. On this basis, it was argued that the common law claims had “crystallised prior to the applicability of the Uncollected Goods Act”. United no longer seeks damages for trespass but maintains its claims in conversion and detinue.

33. The submission cited the well-established principle of statutory construction that legislation will not be construed to alienate vested property interests without adequate compensation unless expressed in “unequivocal terms incapable of any other meaning”: Commonwealth v Hazeldell Ltd [1918] HCA 75; (1918) 25 CLR 552 at 563.

34. Invoking that principle, United submitted that the Chief Magistrate was required to address the relevant questions in the following order: (a) First, did United maintain its proprietary interests in the containers after Wridgways went into liquidation? If it did, did Pacific interfere with the proprietary interests that United had in the containers? If that occurred, United was entitled to claim damages for trespass, conversion and detinue. (b) Secondly, did s 32 of the uncollected goods act operate so as to extinguish United’s claims in trespass, conversion and/or detinue.

35. There are two difficulties with this submission. First, it conceives of a statute as a thing that only springs into operation when a party takes a step in accordance with its terms. This analysis is reminiscent of the theory of immaterialism propounded by the English philosopher, George Berkeley, and the satirical limerick it inspired, which questioned whether the tree in the quadrangle at Trinity College, Oxford, continued to exist when there was no one there to observe it.

36. A statute does not have to be seen in order to regulate its subject matter. At the time United requested the return of the shipping containers, the relationship between United and Pacific was governed by the Uncollected Goods Act because the circumstances of that relationship fell within the terms of the Act. Section 3 of the Act provides that the act “applies to goods in the possession of a person whether the goods came into the person’s possession before, on or after the commencement of this section”. The shipping containers were goods within the meaning of the Act and United was a person in possession of those goods. The fate of the goods was accordingly governed by the Act. Division 2.2 of the Act (which contains s 7) applied because the goods were held by Pacific in the absence of an agreement for their collection: see s 6 of the Act.

37. The second difficulty with United’s submission is that it overlooks the clear purpose of the Act of balancing “vested property interests” (to adopt United’s words) with the interests of a person saddled with the unwanted burden of having goods belonging to another person in their possession. The whole point of the Act is to govern the complexities that arise in exactly the kind of circumstances that obtained here.

38. The Act prescribes a careful regime addressing the competing rights of owner and possessor in the absence of agreement for collection. United’s submission ignores the interests of the possessor who, in some circumstances, will have incurred reasonable costs holding the goods of another person. The Act plainly contemplates that the entitlement of the owner to recover possession of its goods should be qualified by some protection of the interest of the possessor in being compensated for any such costs.

39. An illustration of the way in which the rights of owner and possessor are balanced in the Act is seen in the deeming provision in s 5(1)(c) (set out above), which holds that, in the case of perishable goods or goods of no value, the goods are deemed to be uncollected goods “immediately the goods are received or held by the possessor”, whereas, in the case of any other goods, the goods are not deemed to be uncollected goods until the owner has refused or failed to comply with a request made in accordance with s 7 to collect the goods.

40. United complained that the outcome of the Chief Magistrate’s findings is that the containers remain with Pacific, in Pacific’s possession, despite Pacific not having ownership, with the true owner being known and having validly asserted its rights to possession. That is a matter going to the relief granted, not the correctness of her Honour’s application of the Act.

41. United further submitted that s 32 does not contain clear words that would have the effect of extinguishing United’s property rights as owner of the containers to recover the goods or their value from Pacific by means of common law action. I do not accept that submission. The language of s 32 admits of no other interpretation. That section 32 provides: 32 Protection of possessors (1) No action shall lie against a possessor by reason of the taking or giving of possession, or the sale, appropriation or destruction, of goods under this Act. (2) A possessor acting under this Act is not liable for any reasonable damage caused by the removal or retention of goods.

42. The section clearly replaces the common law rights sought to be prosecuted by United with the regime imposed by the Act. This case illustrates the vice intended to be addressed by those provisions. The legal costs incurred by United in pursuing a remedy at common law must now be vastly disproportionate to the value of the goods at stake.

43. In my respectful opinion, the Chief Magistrate was correct to hold that the relationship between United as owner and Pacific as possessor was at all times governed by the Uncollected Goods Act and that Pacific accordingly enjoyed the protection of s 32 of the Act. Ground (d) of the cross-appeal must be rejected.

Validity of the s 7 notice

44. The remaining grounds in the cross-appeal are all concerned with the proper construction and application of s 7 of the Uncollected Goods Act. Grounds (a)(ii) and (iii) are directed to the Chief Magistrate’s construction of that section, while grounds (b) and (c) are directed to her Honour’s factual findings on the same issues.

45. Ground (a)(ii) is that the Chief Magistrate erred in holding that a notice under s 7(2) need only comply substantially with that section to be valid. Ground (a)(iii) contends that the notice was invalid for the additional reason that the costs Pacific required United to pay before the goods could be collected were excessive.

46. Section 7 provides: Request to collect goods (1) A possessor may request the owner of goods to collect the goods within 7 days of the date of the request. (2) A request under subsection (1) shall— (a) be in writing; and (b) contain— (i) a brief description of the goods; and (ii) the address at which the goods are available for collection; and (iii) a statement of the times at which, or the hours between which, the goods will be available for collection at that address; and (iv) a statement that the goods may be disposed of in accordance with part 3 if they are not collected within 7 days of the date of the request; and (v) a statement of any costs that must be met by the owner before the goods will be released by the possessor. (3) A request must— (a) be sent to the owner’s last-known address; or (b) if the possessor does not have an address for the owner and has not been able to find an address through reasonable inquiry—be given by public notice.

47. The notice issued by Pacific did not comply strictly with the requirements of s 7(2) because it did not specify the address or times at which the goods were available for collection. United contended that the notice was accordingly invalid. It contended that strict compliance was required because the application of the section could result in the owner being divested of property.

48. In construing s 7, the Chief Magistrate noted that it includes “three forms or levels of obligation”. Her Honor said: at subsection 1, a possessor may request the owner to collect goods within a certain timeframe; at subsection 2 a request shall have certain characteristics; and at subsection 3, a request must be sent to a certain location.

49. The Chief Magistrate reasoned that Parliament must have intended different levels of obligation required in respect of those different aspects of the notice. Her Honour considered that the word “must” is clearly mandatory, that the word “may” indicates a discretion under the control of the possessor and that the word “shall” falls between the two.

50. The Chief Magistrate’s conclusion as to the proper construction of the section appears at [30] of the combined decision, where her Honour said: given the apparent sliding scale of obligations provided for in section 7, I am satisfied that the use of the word shall is a reflection of its related concept of should which imports a high level of obligation, but less than an absolute mandate. Not only does this interpretation make sense of the section as a whole but also reflects something less than absolute compliance may be sufficient to properly inform the owner and thus allow compliance with the notice. The compliance must be substantial as the ramifications of the notice, that is the ability to treat the goods as uncollected and dispose of them, are significant. Those defects which have been identified by United in this case are not such as to render the notice ineffective and I find it is a compliant notice.

51. In my respectful opinion, subject only to one qualification, that analysis was correct. I respectfully disagree with her Honour’s description of the word shall as a form of or a word related to the word should. I do, however, agree with her Honour’s analysis that the text and context of s 7 indicate that different levels of obligation are imposed by s 7(2) and s 7(3) respectively. As her Honour noted, the higher level of obligation makes sense in respect of the requirement for service or public notice prescribed in s 7(3) as, without that step, the owner would remain ignorant of the whole process. Conversely, the requirements of s 7(2), if substantially complied with, would put the owner in a position to protect its interests.

52. The words “shall” and “must” are ordinarily synonymous, each imposing an obligation to nd do a thing: Perry Herzfeld and Thomas Prince, Interpretation (2 ed, 2020, Law Book Co of Australasia at [4.210]. However, as the authors note in that section of the text, the question whether a statute imposes an obligation is separate from the question of the consequences of non-compliance with the obligation.

53. The authorities given for that proposition include the decision of the NSW Court of Appeal in Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 at [10]. Justice Basten cautioned in that case that “to strip a word from its context in order to give it some generic meaning is a wrong approach, even if the result is correct in a particular case. Context may qualify an apparently mandatory term”.

54. In the case of the Uncollected Goods Act, as observed by the Chief Magistrate, the context in which the word “shall” appears (including the curious drafting device that it is juxtaposed with the word “must”) indicates that, contrary to the common understanding that those terms are synonymous, the consequences of failure to comply with s 7(2) will be different from the consequences of failure to comply with s 7(3). In my view, her Honour was correct to hold that substantial compliance with s 7(2) may be sufficient, depending on the circumstances. To put the matter another way, whereas failure to serve or give public notice of a request to collect goods in accordance with s 7(3) will plainly invalidate the process, that will not necessarily be the case where there is a failure to comply strictly with the requirements of s 7(2).

55. Accordingly, I reject ground (a)(ii).

56. Ground (a)(iii) is that the Chief Magistrate erred in holding that the statement of costs in a notice under s 7(2) need not be reasonable costs within the meaning of s 26(2) of the Act or otherwise.

57. I reject this ground by substantially the same analysis. It is significant that s 7 does not include the word “reasonable”. The requirement is that the notice “shall contain” a statement of “any costs that must be met by the owner before the goods will be released by the possessor”. I am not persuaded that Parliament intended that a claim of excessive costs would invalidate the notice (fraud might be an exception to this conclusion). The requirement to collect goods is the commencement of the process for collection or disposal of the goods. The remedy for an owner faced with a claim for excessive costs is to seek a review of the costs, as allowed under s 27 of the Act. That is the provision that introduces the mechanism for determination of the reasonableness of the costs claimed. Until the commencement of proceedings for review under s 27 of the costs specified in a s 7 notice, there is no legislative mechanism or occasion for an owner to assert a right to possession except by meeting the costs claimed. That is the regime created by the statute.

58. United complained that this analysis would visit a hardship on an owner met with a requirement to pay excessive costs. It contended that it cannot be the case that a possessor is “entitled to maintain possession of someone’s goods upon effectively demanding a ransom for their return”.

59. But conversely, a person saddled with the possession of unwanted goods would have no protection if the owner could assert their title, and threaten the possessor with a common law action, with no mechanism for recovering their reasonable costs of holding the goods. The present case illustrates the vice addressed by the Act. The correspondence does not reveal any attempt by United to resolve the matter by tendering what it regarded to be a reasonable cost.

60. Turning to the Chief Magistrate’s factual findings, ground (b) is that Her Honour erred in finding that the purported notice under s 7(2) of the Act issued by the appellant was “substantially compliant” with s 7(2) of the Act.

61. I reject this ground. The parties and their lawyers had engaged in extensive correspondence by the time s 7 was invoked. Absent lawyers, the conclusion that there was substantial compliance with the requirements of the section might not so readily have been reached. In the circumstances of the present case, the question of when and where the goods could be collected was a secondary matter, overshadowed by the larger issues debated in the correspondence. To hold the notice invalid for the absence of such a statement in the present case would subvert the plain object of the Act of regulating the efficient return or disposal of goods held by a person other than the owner.

62. Ground (c) is that the Chief Magistrate erred when her Honour made a factual finding that the statement of costs contained in the purported notice under s 7(2) of the Act issued by the appellant did not render the notice non-compliant with the Act. This ground does not raise any separate issue from the question of construction addressed above. It must also be rejected. Pacific’s Appeal

63. Pacific appeals against the Chief Magistrate’s third ruling, that Pacific’s costs were not reasonable under the Act.

64. As already explained, Pacific has not filed a notice of appeal. In its written submissions, Pacific submitted that, in her decision concerning the reasonableness of Pacific’s costs, the Chief Magistrate erred in: (a) Finding that there was no basis for the appellant to recover any reasonable costs from the respondent under the Act; (b) Failing to properly consider the evidence in respect of the costs incurred by the appellant; (c) Taking into account irrelevant considerations; (d) Failing to properly consider the operation of the Act in respect of the costs incurred by the appellant; (e) Failing to properly consider who bore the onus of proof; and (f) Failing to determine the quantum of costs that were reasonable, or in other words, the quantum of costs that reach a point of being unreasonable.

65. In oral submissions, those grounds were distilled to a central complaint that the Chief Magistrate erred “in making an allocation of no reasonable costs”. The submission and indeed the premise of the appeal misconceived the operation of the Uncollected Goods Act. Section 27 of the Act does not create a cause of action to claim reasonable costs. It is confined to conferring power on the court to disallow the costs claimed, in whole or in part. The effect of the Chief Magistrate’s decision was to disallow the whole of the costs claimed for the reasons her Honour articulated (set out above), with which I respectfully agree.

66. Pacific submitted that the area in which her Honour clearly fell into error concerned the cost of moving the containers. The evidence of Andre Ferreira was that there was a one-off cost of moving items left at the premises including the shipping containers. The invoice for the removal costs was for an amount of $10,870.

67. Counsel for Pacific appeared to concede that there was no proof that that invoice was in fact paid (“and I don't – cannot submit it was paid out. That’s the cost that is attached by way of invoice to the notice that was provided”). However, he relied on the fact that United had proposed that, if any amount was to be allowed, it should only be 42.9% of the amount invoiced as that was the portion attributable to the removal of the shipping containers (as opposed to the other items removed). That apportionment gave an amount of $4,663.23, but that was not the cost claimed. The Chief Magistrate noted that the move was effected using equipment and personnel belonging to a company related to Pacific. Her Honour further noted that there was no evidence that Pacific had requested United to collect the containers before they were moved.

68. Ultimately, the Chief Magistrate was not persuaded that Pacific had reasonably incurred any costs holding the containers. There is no error in that conclusion. On my analysis of the evidence summarised above, I have reached the same conclusion. As an aspect of this complaint, Pacific contends that the Chief Magistrate erred in considering which party bore the onus of proof of establishing that the costs were reasonable. I am not persuaded that there was any error in the approach her Honour took to the issue of onus. Her Honour said at [78] of the combined decision: The UG Act is silent as to who bears the onus of proving or disproving the costs claimed reasonable. The usual approach in civil matters is that she or he who asserts must prove. The statutory task is one of review of the reasonableness of the cost court should consider all evidence properly available to noting that some matters may be particularly within the knowledge of one or other party. The determination must be made on the balance of probabilities; mere assertion of reasonableness without evidence to support the basis on which the claim is arrived at is unlikely to be persuasive.

69. There is no error in that approach. It is a perfectly orthodox analysis of the task the court was required to undertake.

70. Ultimately, the Chief Magistrate disallowed the costs claimed by Pacific because her Honour rejected its approach to claiming amounts purportedly charged to it which, as her Honour held, bore little resemblance to any cost of holding the goods.

71. Pacific’s appeal must accordingly be dismissed.

Orders

72. For those reasons I make the following orders: (1) I direct that the appeal be taken to have been commenced on the date of filing of the application for leave to appeal on 27 April 2023. (2) I direct the appellant to file a notice of appeal within 7 days based on the grounds of appeal set out above. (3) To the extent necessary, I extend the time within which the respondent’s cross-appeal may be brought to 30 May 2023. (4) The appeal is dismissed. (5) The cross-appeal is dismissed. (6) Each party is to bear its own costs of the appeal unless submissions to the contrary are received by 4pm on 18 April 2025.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 11 April 2025