Part 2Distress for rent

Part 2—Distress for rent 13—Interpretation In this Part, unless the context otherwise requires— goods means any cattle, horses, livestock, furniture, goods, chattels, effects, or things which are by law liable to be distrained for rent, and includes lodgers' goods, but, except in sections subsequent to section 29, shall not include agisted cattle; health practitioner means a registered health practitioner under the Health Practitioner Regulation National Law and includes a person who was, but is no longer, registered in a health profession under that law (or a previous corresponding Act of the State); immediate tenant means the person owing or alleged to owe any rent, in respect of which a distress has been or is levied or threatened or authorised to be levied; landlord means any person having power to distrain for rent due to him; record means— (a) a documentary record; or (b) a record made by electronic, electromagnetic, photographic or optical process; or (c) any other kind of record; rent means any rent reserved upon or payable by virtue of any demise, lease, contract, or charge whatsoever for which a distress may lawfully be levied. For definition of divisional penalties (and divisional expiation fees) see Appendix. 13A—Jurisdiction of the Magistrates Court (1) The Magistrates Court has jurisdiction to hear and determine any application or other proceeding under this Part. (2) If a proceeding before the Magistrates Court involves a monetary claim, or property with a value, that exceeds the amount by reference to which the jurisdictional limit of the Magistrates Court is fixed, the Magistrates Court must on the application of a party to the proceeding refer the proceeding to the District Court. (3) If a proceeding is referred to the District Court, the Court has, in addition to the powers that it has apart from this section, the powers that the Magistrates Court has under this Part. 14—Mode of distress, and warrant, authority (1) No person to whom any rent is due shall distrain any goods for such rent except by himself personally, or by some person duly authorised by warrant under his hand, or the hand of his agent lawfully authorised. (2) Every such warrant shall be in duplicate, and in the form or to the effect of the form in Schedule 1, and shall be attested by a witness. 15—Exemption of warrants from stamp duty Notwithstanding any other enactment, no warrant or authority to distrain shall be chargeable with any stamp duty. 16—Delivery of duplicate warrant (1) Every person distraining for rent on behalf of another shall, at the time of making the distress, deliver one duplicate of the warrant authorising him to distrain to the immediate tenant, or some person residing on the premises where the distress is levied. (2) If there is no person residing on the said premises with whom the duplicate can be left, the person distraining shall nail or affix the duplicate on some conspicuous part of the premises, and a copy of the affixed notice shall be posted to the tenant's last known address. 17—Distress for rent (1) Every person making a distress for rent shall do so between the hours of six in the morning and six in the afternoon. (2) Every person making a distress for rent shall forthwith make out a written inventory of the goods distrained in the form in Schedule 2, or in a form to the like effect. (3) The inventory shall be dated on the day of the distress, and shall be signed by the person making the distress, who shall thereupon deliver a copy thereof to the immediate tenant, or some person residing on the premises where the distress is levied. (4) If there is no person residing on the said premises with whom the copy can be left, the person distraining shall nail or affix the copy on some conspicuous part of those premises, and a copy of the affixed notice shall be posted to the tenant's last known address. 18—Delivery of copy warrant and inventory to claimant (1) Every person distraining for rent shall on demand deliver one copy of the warrant (if any) under which the distress is levied, and a copy of the inventory in the last preceding section mentioned, to every person claiming an interest in the goods distrained, on payment of a charge at such rate or basis as may be prescribed from time to time by rules of court made under the Local and District Criminal Courts Act 1926, as amended. (2) Any person refusing or neglecting so to supply such copy shall be guilty of an offence, and liable to a penalty not exceeding ten dollars. 19—Rights of owner of agisted cattle, under-tenant, or lodger (1) If any landlord levies, or threatens to levy, or authorises to be levied, a distress on any cattle agisted on the demised premises, or on any goods being the property or in the lawful possession otherwise than as sub-tenant of any under-tenant other than the immediate tenant, or of any lodger, for arrears of rent due to such landlord by his immediate tenant, the owner of such agisted cattle, or his agent, or such under-tenant or lodger, or his agent, may serve the landlord or the person authorised by him to levy such distress, with a declaration in writing in or to the effect of the form in Schedule 3, signed by such owner or his agent, or such under-tenant or lodger or his agent. (2) The declaration shall— (a) set forth that the immediate tenant has no right of property or beneficial interest in such cattle other than his lien for agistment, if any, or that he has no right of property or beneficial interest in such goods, and that such cattle are the property of such under-tenant or owner, or that such goods are the property of such lodger, or are, or immediately prior to being distrained were, in his lawful possession; and (b) state whether any and what money is due for agistment, rent, or lodging, and for what period, from such owner, under-tenant, or lodger to the immediate tenant, and if no such money is due, then stating that fact; and (c) have annexed thereto a correct inventory signed by the declarant of the cattle or goods referred to in the declaration. (3) And such owner, under-tenant, or lodger, may pay to the landlord, or to the person authorised by him as aforesaid, the amount so due for agistment, rent, or lodging, or so much thereof as shall be sufficient to discharge the claim of such landlord and his lawful charges. 20—Effect of payment to landlord Any payment made by an owner of agisted cattle, or an under-tenant, or lodger, pursuant to the last preceding section, shall be deemed a valid payment on account of any moneys due for agistment, rent, or lodging from him to the immediate tenant. 21—Duty of landlord after being served with declaration Subject to the provisions of section 26, if any landlord, or any person authorised by a landlord, after being served with the said declaration and inventory, and in case any money is at the time of making such declaration due for agistment, rent, or lodging, as mentioned in section 19 of this Act, after payment to him of the money which by such section the owner of the agisted cattle, or the under-tenant, or lodger, is authorised to pay, levies or proceeds with a distress on such cattle, being the property of the person by or on whose behalf they have been claimed, or on the goods of the under-tenant or lodger, or goods which immediately prior to being distrained were in his lawful possession, that landlord, and the person so authorised, if any, shall if the immediate tenant had at the time of the service of the said declaration and inventory no right of property or beneficial interest in such agisted cattle other than his lien for agistment, if any, or in such goods, be deemed guilty of an irregular distress, and shall be liable to an action on the application of such under-tenant or lodger, but shall not be deemed trespassers ab initio. 22—Rights of owners of goods in other cases If, in any case not coming within section 19 of this Act, any landlord levies, threatens to levy, or authorises to be levied, a distress on any goods being the property or in the lawful possession of any person other than the immediate tenant, such person or his agent may serve the landlord, or the person authorised by him to levy such distress, with a declaration in, or to the effect of, the form in Schedule 4, signed by the first mentioned person or his agent, setting forth that the immediate tenant has no right of property or beneficial interest in such goods, and that such goods are the property of such first mentioned person, or are, or immediately prior to being distrained were, in his lawful possession; and to such declaration shall be annexed an inventory, signed by the declarant, of the goods referred to in the declaration. 23—Duty of landlord after service of declaration Subject to the provisions hereinafter contained and to the person who claims the goods proceeding, as provided in the next section before the sale thereof, and obtaining a decision in his favour, if any landlord or any person authorised by a landlord, after being served with the declaration and inventory provided for by the last preceding section, levies or proceeds with a distress on the goods mentioned in the inventory, being the property of the person by whom or on whose behalf the declaration and inventory was served, or having been immediately prior to such distress in his lawful possession, that landlord, and the person so authorised, if any, shall, if the immediate tenant had at the time of such service no right of property or beneficial interest in the goods, be deemed guilty of an irregular distress, and be liable to an action therefor, but shall not be deemed trespassers ab initio. 24—Adverse claims (1) When any claim is made by service of a declaration and inventory, by any person other than the immediate tenant, to or in respect of any agisted cattle or goods distrained, or threatened to be distrained, by any landlord for rent, any justice of the peace, upon complaint in writing by either the landlord or the claimant preferred before the sale of such goods under the distress (where the cattle or goods have been actually distrained) by the person making the claim, may— (a) issue a summons in the form in Schedule 5, or in a form to the like effect, directed as well to the landlord as to the person making the claim; and (b) in his discretion order such sale to be postponed until the summons has been disposed of. (2) The Magistrates Court, on hearing a claim under subsection (1), may make such orders, including orders as to costs, as the Court thinks fit. (3) Service of the summons or order on a person authorised by the landlord to distrain shall be deemed service on the landlord, and service of the summons or order on a person who has made a claim on behalf of another shall be deemed service on the principal. 25—Decision of Magistrates Court If it appears upon the hearing of the complaint that— (a) the agisted cattle claimed were the property of the person alleged to be the owner thereof, or that the goods claimed, or part of them, were the property or in the lawful possession of the claimant, being an under-tenant or lodger; and (b) the immediate tenant had no right of property or beneficial interest in such cattle, other than his lien for agistment, if any, or in such goods; but (c) the claimant did not, before the complaint was preferred, pay to the landlord, or the person authorised by him to distrain, all moneys due by the owner of the cattle, or by the under-tenant or lodger to the immediate tenant for agistment, rent, or lodging, or so much thereof as was sufficient to discharge the claim of such landlord and his lawful charges, the Magistrates Court must decide accordingly and the decision will be taken to be in favour of the landlord. 26—Power of landlord to hold goods Where any complaint is preferred as in section 24 mentioned, the landlord may, at his option, where the agisted cattle or the goods have been distrained before the making of the claim, hold the cattle or goods claimed until the claim has been adjudicated upon; and the costs of such holding, and of holding possession from the making of the claim until the adjudication, or such part thereof as the Magistrates Court thinks fit, will, if the Court so orders, be added to the costs of the distress, or paid by the claimant to the landlord. 27—Power of landlord to sell goods if claim in his favour The landlord may seize or reseize any agisted cattle or any goods as to which the decision is in his favour wherever they may be found, and, if necessary, may, between sunrise and sunset only, break into any premises where those cattle or goods may be, or may reasonably be supposed to be, and may deal with any such cattle or goods as if no such claim had been made, although he may have previously sold other cattle or goods distrained at the same time, and no fresh claim has been made by the same claimant. 28—False declarations If any person wilfully makes or signs any false declaration or inventory under this Part he shall be guilty of an offence, punishable by imprisonment for any term not exceeding twelve calendar months. 29—Person entitled to take declarations A declaration under this Part may be made before a justice of the peace, notary public, commissioner for taking affidavits in the Supreme Court, or practitioner of the Supreme Court or clerk of a local court. 30—Sale of distrained goods Where goods are distrained for rent, and are not replevied within five days next after the delivery or affixing of the copy of the inventory provided for by section 17, the landlord may, at the expiration of those five days, subject to the provisions hereinafter contained, and unless payment or tender of the rent and the charges in respect of the distress be made to him by or on behalf of the tenant before sale, sell the goods distrained for the best price that can be obtained. 31—Power to distrain corn and hay Any landlord or his agent may distrain any sheaves of corn, or corn loose, or in the straw, or hay lying on the ground, or being in any barn, granary, hovel, stock, or rick, or otherwise upon any part of the land subject to the rent, and may deal therewith as he might have dealt with any other goods distrained for rent, except that corn or hay so distrained shall not be removed by the landlord or his agent out of the place where it was seized, if such removal would depreciate its value, but shall be kept there (as impounded) until it is replevied or sold. 32—Distress may be secured and sold on premises (1) Any landlord or his agent may impound or otherwise secure goods distrained for rent, in such place, or on such part of the premises subject to the rent, as are most fit and convenient for impounding and securing them, and may sell and dispose of them upon the premises, or, where the goods cannot be advantageously disposed of upon the said premises, may remove them to some more convenient place for disposal. (2) Any other person or persons may, after the expiration of the five days hereinbefore mentioned, come and go to and from the place or part of the said premises where the goods are impounded and secured in order to view or buy the goods, or remove them on account of the purchaser thereof. (3) If any rescue or pound breach is made of any goods distrained, the person aggrieved thereby shall, in an action for the wrong sustained, recover damages and costs against the offender or offenders, or any or either of them, or against the immediate tenant or the owner of the goods distrained, if the goods afterwards have come to his use or possession. 33—Disposal of proceeds of sale The proceeds of any such sale shall be applied as follows: First, in payment of the costs of and incident to such distress and sale; and next, in satisfaction of the rent for which the distress was made; and the overplus (if any) of such proceeds shall be paid into the hands of the immediate tenant, or, in his absence, to the clerk of the local court nearest to the place where such distress is levied, for the use of such immediate tenant. 34—Sale to be by auction The sale of any goods distrained for rent shall be by public auction, of which full and reasonable notice shall be given; and such sale shall be conducted by a licensed auctioneer, or may, with the written consent of the immediate tenant, be made by the landlord or his agent. 35—Costs, charges etc of distress and sale In relation to any distress and sale under the provisions of this Part, such charges and costs as are appropriate and as may be prescribed in that behalf from time to time by rules of court which may be made under the Local and District Criminal Courts Act 1926, as amended, shall be payable in accordance with the rules. 36—No appraisement necessary In no case of distress under this Part shall any appraisement whatever be necessary, nor shall any costs or expenses be charged or allowed in respect thereof. 37—Double damages against wrongful distrainer If any distress and sale is made for rent alleged to be due where in truth no rent was due to the person by whom or in whose name or right the distress was levied, the owner of the goods distrained and sold, his executors or administrators, may, by action against that person, recover double the value of the goods so distrained and sold, together with costs as between solicitor and client. 38—Goods fraudulently or clandestinely removed If the immediate tenant, before, at, or within fourteen days after the expiration of his term or tenancy, fraudulently or clandestinely removes any goods from the premises in respect of which rent is due by him to prevent the landlord from distraining upon the goods for rent, it shall be lawful for the landlord or his agent, within the space of thirty days next after the removal of those goods, to take and seize them wherever they are found as a distress for the said rent, and to sell and dispose of them in like manner as if they had actually been distrained by the landlord in and upon such premises for such rent; but no landlord shall seize or take any such goods which, before such seizure, have been sold bona fide and for a valuable consideration to any person not privy to the fraud or clandestine removal. 39—Damages or pound breach or rescue Upon any pound breach or rescue of goods distrained for rent, the person injured thereby shall, in an action upon the case for the wrong thereby sustained, recover treble damages with costs against the offender or against the owner of the goods distrained if they afterwards come into his use or possession. 40—Penalties, how recovered Penalties for offences against this Part may be recovered in a summary way on the complaint of any person. 41—Forms may be modified The forms in the Schedules may be modified according to circumstances. 42—Landlord's powers not abridged So far as consistent with this Part, nothing in the previous sections of this Part shall affect or abridge any right, remedy, or power of any landlord by statute, common law, or otherwise howsoever conferred upon or vested in him. 43—Exemption of cattle and vehicles Cattle and vehicles at livery, with all saddles, bridles, and other harness belonging or appertaining thereto are hereby exempted from distress for rent. 43A—Exemption of records of health practitioner (1) A record of a health practitioner prepared or held in the course of, or for the purpose of, that practitioner's work as a practitioner is exempted from distress for rent. (2) If, prior to the commencement of this section, a landlord distrained for rent a record of the kind referred to in subsection (1), the landlord must— (a) unless a direction is given under paragraph (b), take reasonable steps to return the record to the health practitioner to whose practice the record relates; or (b) if directed to do so by the Minister for Health, deliver the record to a person nominated by the Minister for Health. 45—Exemption of wearing apparel and tools (1) Wearing apparel, tools and implements of trade, and household requisites to the total value of twenty dollars shall be exempt from seizure under any distress for rent, and such goods are hereby protected from such seizure. (2) The word value as applied to goods in this section means value of such goods at a forced sale. The value of any article protected under the preceding section of this Act shall not be taken into account in computing the said sum of twenty dollars. 46—Application of preceding section (1) The two last preceding sections shall not extend to any case where the lease, term, or interest of the tenant has expired, and where possession of the premises in respect of which the rent is claimed has been demanded in writing, and where the distress is made not earlier than seven days after such demand. (2) The said sections shall be taken as providing for and supplementing exemptions, and not limiting any exemption already existing.