Where a customer abandons a vehicle on your property, there are two options available to you to dispose of the vehicle.
Repairer’s Lien
One option to legally dispose of an abandoned vehicle and recover the money from the relevant unpaid invoice is to exercise a repairer’s lien. A lien is the right to hold a vehicle or other item where authorised work was done until the debt is paid.
In SA, a repairer’s lien also provides a limited right to dispose of the vehicle under the Worker’s Liens Act 1893 (SA) under Section 41. The benefit of this method is you potentially recoup your money for work done. You will be able to exercise a lien over the vehicle if you have done authorised repairs on the vehicle with the owner’s permission.
We first recommend paying $2 to check on the Personal Properties Security Register (PPSR) to make sure there are no security interests on the car before trying to sell it. If the vehicle does have security interests registered against it, please contact the WR team on the below contact information to discuss how to navigate this process.
Before a lien can be exercised, the relevant invoice must be unpaid one month after its due date.
Once the invoice has become overdue for one month, the first step is to notify the customer of the potential exercise of a repairer’s lien. A template letter that can be used for this purpose is attached (Template A – Repairer’s Liens). We recommend sending this to the customer’s last known address using registered post to ensure delivery.
If you decide on exercising a lien, once you have sent the relevant notice and the customer has not paid the invoices or responded to you, then the vehicle may only be sold via public auction.
At least 14 days prior to any sale, a notice of sale (see Template B – Repairer’s Liens) must be sent via registered post to the customer’s last known address detailing the following:
- The description of the article to be sold;
- The amount of the debt;
- The date, time and place of the sale; and
- The name of the proposed auctioneer.
We also recommend calling the customer to let them know this is your proposed plan of action as this might prompt the customer to pay the invoice.
You should notify your auctioneer that you are exercising your rights under the Worker’s Liens Act 1893 (SA) and have followed the correct procedure, and the vehicle will be sold as a vehicle under lien. This enables you to dispose of the car legally without being the registered owner.
After selling the vehicle, you are entitled to take the amount equivalent to the work you did and the materials on the particular job. You can also deduct the cost of arranging the sale via auction.
As for storage fees, you can only legally deduct these where there was a prior written agreement stating these would be applicable (for example, in a repair authority or in terms and conditions).
Any remaining proceeds of the sale must be paid to the Magistrates Court Registry as unclaimed money in the name of the owner. You cannot apply this additional unclaimed money to any other outstanding debts the customer may have with you. You also cannot exercise a lien over the vehicle for previous debts if you let it leave your possession and then the vehicle is brought back.
Unclaimed Goods
Another option to legally dispose of an abandoned vehicle is via the process outlined in the Unclaimed Goods Act 1987 (SA). This process can be used where a vehicle has been abandoned on your property, but you have not undertaken any repairs or works on the vehicle. This is often the case where a vehicle is a write-off, or the repairs cost more than the vehicle is worth.
We first recommend paying $2 to check on the Personal Properties Security Register (PPSR) to make sure there are no security interests on the car before trying to sell it.
If the vehicle does have security interests registered against it, please contact the WR team on the below contact information to discuss how to navigate this process.
Before you can start the process of disposing of the goods, a ‘collection date’ must have passed. If you have not provided a collection date, you need to write to the owner at their last known address, asking them to collect the goods (see attached Template A – Unclaimed Goods). You must then give the customer 42 days to collect the goods. If the customer’s address is unknown, you must post the notice in the local newspaper, such as The Advertiser.
After the collection date has passed, you must then wait for another three months before disposing of the car.
We suggest that you determine how much the vehicle is worth. Whilst the legislation does not prescribe a particular method to value the car, we recommend having the vehicle independently valued, particularly if you are uncertain as to its value.
If the value of the vehicle is less than $500, you can sell the car via private sale or send the vehicle for disposal.
If the value of the vehicle is between $500 and $2000, it must only be sold via public auction. Also, you must provide 1 month’s notice to the Commissioner of Police and the owner before the sale. If you do not know the customer’s address, again, you will have to post the notice of the impending auction in the newspaper (see Template B – Unclaimed Goods for the notice form).
If the car value exceeds $2000, you will need to apply to the Magistrates Court and get permission to dispose of the car. You also need to give a copy of the application to the Commissioner of Police, and you can do this by going to any police station and giving them a copy of this application. You also need to give this to the owner of the vehicle.
An application with the Magistrates Court can only be done online. You need to go to CourtSA and register for an account. You also have to submit a Form 12 affidavit detailing why you made this application. Please contact us if you need assistance with your application.
If the vehicle is worth more than $500 and you performed authorised works on the vehicle and an invoice is left unpaid, we recommend following the Repairer’s Lien process outlined above.
Regarding any proceeds from the sale of the vehicle, you are entitled to retain any costs you have incurred after the collection date (i.e. the cost of advertising the sale and reasonable costs of storing and maintaining the goods prior to sale). Any remaining proceeds must be paid to either the owner or the State Treasurer.
For further information, please see our fact sheets on Repairer’s Liens and Unclaimed Goods which are available for download.
If you have any questions regarding this process, please contact the Workplace Relations team on (08) 8291 2000 or via the form below.
