Paul:
Let’s go to Anne now, who’s in Ballarat.
Anne:
Hello, David and Paul; thank you for taking my call. My husband is a sole trader and he fixes small engines and sometimes people don’t pay or they pay part of the payment. I wondered if you could tell me what our position is there.
Paul:
Tradespeople everywhere have just sat up straight and they want this answer.
DW:
Anne’s husband is in a slightly better position than most. Because there is a concept at law called a ‘repairer’s lien’. And it allows a repairer to hold goods until they’re paid or there are satisfactory arrangements for payment. So Anne, you can do debt recovery proceedings at VCAT; that’s a civil claim. You could do all the paperwork for him and issue the proceedings and that would be dealt with at the Ballarat Magistrates’ Court because VCAT sits there. But you also have the ability to simply say well I’m really very sorry but I’m holding it until you pay. What else are you looking for?
Anne:
Well I was just thinking sometimes the machines take up storage space or they get in the way and once they’ve been sitting for a while they need more maintenance.
DW:
There is another process that you’ll find in the Australian Consumer Law and Fair Trading Act and it talks about the disposal of unclaimed goods. And what you do depends upon the value of the goods. So there are three different levels and the effort you need to go to – to make sure you’re getting the best price – varies depending upon what the goods are worth.
Anne:
Okay,
DW:
So have a look at the disposal of unclaimed goods. You can search for it on the internet. You can find it if you’re looking for the legislation in the Australian Consumer Law and Fair Trading Act of Victoria.
Paul:
Anne, just stand by there. I’ve got a question for David on this one. Are there sole traders or tradespeople who are not as well positioned to reclaim money?
DW:
Well what Anne has, as opposed to a chippie who might come and do some work on my home, is that whatever he or she has done is incorporated in my house and they can’t take it back. The advantage that Anne has is that he has goods of the customer and can retain those goods pending payment.
Paul:
Yes. Anne, are you pleased with that advice, pleased enough?
Anne:
That’s great, sounds like there’s a bit of work to do. I couldn’t just sort of make a deal with them to sell the machine for you know…
DW:
Oh yes you can. I’m looking at what your rights are if you can’t do a deal. So your first one is I’ve got a lien. What you might also do is look at your husband’s terms of trade and put on his invoices or his quotes what his rights are in terms of unclaimed goods. Start the process a little bit earlier.
Anne:
Yes I was thinking that too. Yes because I’ve noticed some people put ‘the parts are ours until you’ve paid’ and stuff like that.
DW:
Well that’s a nice clause I’m not sure that works anymore. In 2000 we introduced a legislation that created the Personal Properties Securities Register. It’s changed the rules,. That was called the ‘Romalpa clause’; they don’t work anymore. But you do have the right to hold the whole machine.
Anne:
Okay thank you so much.