17

MERCANTILE LAW
PRELIMINARY NOTE
Bills of Sale and Other Instruments Act of 1955
This Act provides a system of registration of bills of sale, stock
mortgages, crop and wool liens, and in certain particulars regulates their
contents and interpretation.
Sections 7-11 deal with registration generally. Section 7 (1) provides
that an unregistered instrument has no effect as to the chattels comprised
therein against any person other than the grantor and grantee. By s. 8 (1)
registration of the instrument acts as notice to all persons, but note the
saving of the priority of prior registered instruments effected by s. 8 (2).
Instruments are required to be executed in duplicate, s. 10 (1), and
where the copies vary, the original prevails, s. 11. Sections 12, 13, provide
for renewal of registration of bills of sale (defined by s. 6) and crop liens.
General provisions as to the registry are contained in ss. 17, 18.
Provision for optional registration is made by ss. 14 (transfers of
instruments) and 24 (assignments of book debts). Section 15 relates to
entry of satisfaction, and s. 38 specifies the circumstances in which the
Public Curator may sign memoranda of satisfaction. As to sale after
seizure, see s. 45.
Sections 19-23 provide generally as to the contents and attesting of
instruments, and ss. 39-44 provide, by references to the Fourth, Fifth and
Sixth Schedules, for covenants and powers to be implied in instruments.
These covenants and powers may be expressly varied or negatived by the
instrument itself, s. 44. Provisions especially relating to stock mortgages
are contained in ss. 25-30; to crop liens in ss. 31-33; and wool liens in
ss.34-36.
Business Names Acts, 1962 to 1965
This Act by ss. 5, 7, 11 provides for the registration of business names
as defined by s. 3. The Act is administered by the Registrar, s. 4, who is
required to keep a register, s. 6. He may refuse to register or may
de-register names which are in his opinion undesirable, ss. 9, 10.
Extensive powers are given to the Registrar, for example power to
require information, s. 13, and power to require verification of particulars
supplied to him, s. 16. Statements lodged with the Registrar must be
signed in the manner required by s. 15, and a penalty for false statements
is provided by s. 17. Cancellation of registration is the subject of ss. 18, 19.
Business names must be used on correspondence and displayed on
the premises, s. 20, and evidentiary use may be made of the display of the
name, s. 30. Further evidentiary provisions are contained in ss. 23, 24,
relating to certificates of registration and the like. General penalties are
provided for by s. 27 and default penalties, applicable to offences
continuing after conviction, are provided for by s. 28. Section 31 provides
the manner of service of notices by post, and the place of lodgment of
statements required by the Act to be lodged with the Registrar.
Cash Orders Regulation Acts, 1946 to 1959
This Act regulates the business of cash order traders (see s. 5 for
definitions of "cash order", "cash loan" and "cash order traders"), by
requiring them to take out a licence, s. 6, and by prohibiting the issuing
18 MERCANTILE LAW Vel. 11

of cash orders or the making of cash loans by persons other than licence
holders, s. 7. The charges which may be made by traders are regulated,
ss. 9, 11. Special attention is paid to the position of spouses by ss. 12,
13 (2), 14. A cash order must be repayable in full within 20 weeks of
issue, s. 15, and any unexpended amount must be credited or repaid to the
holder of the order, s. 16. Section 17 invalidates (subject to a saving of
the rights of a holder for valuable consideration) transactions entered into
in contravention of Part II. Offences against Part II are the subject of
s. 19.
Part IV contains miscellaneous provisions. Sections 27-29 contain
provisions designed to aid in the policing of the Act. Section 30 makes
attempts to contract out of Act an offence, and s. 32 provides a general
penalty for offences.
Factors Act, 1892
This Act follows the English Factors Act, 1889, 52 & 53 Vic. c. 45,
for which see 1 Halsbury's Statutes of England, 2nd ed., p. 29. The general
principle underlying these Acts is that where the true owner "has entrusted
goods or the documents of title to goods to an agent who in the course of
such agency sells or pledges the goods he shall be deemed by that act
to have misled anyone who bona fide deals with the agent and makes
a purchase from or advance to him without notice that he was not
authorised to sell or to procure the advance" (Blackburn, J., in Cole v.
North Western Bank (1875), L.R. 10 c.P. 354, at p. 372). The provisions
relating to dispositions by vendors or purchasers of goods in possession of
the goods have been re-enacted in the Sale of Goods Act of 1896, s. 27,
p. 212, post. That Act is (by s. 24), however, declared not to affect the
Factors Act, 1892.
Group Sales Act of 1942
This Act regulates and controls the selling of goods by the method
known as "group selling" (as to which see the definition in s. 2).
Group sellers (s. 2) must have a registered office, s. 5; must deposit
security with the Treasurer, s. 6; and may not carryon business without
making such deposit, ss. 7, 8. Their servants, agents and representatives
must be registered, s. 9, and persons convicted of the crimes of stealing
or false pretences may not be so employed by group sellers, s. 11. As to
cancellation of registration see ss. 10, 11 (4). Group sellers are liable
for the acts of such employees, s. 12. Inspection and audit of group
sellers' books are provided for by ss. 17, 18.
Group sales in Queensland are prohibited in the circumstances
prescribed by s. 8. Attempts to contract out in a group sale are void,
s. 13. Group sales must be by description, or by sample as well as
description, s. 14. Section 15 provides rules as to delivery, and s. 16
prescribes circumstances in which the buyer is entitled to a refund.
Hide Skin and Wool Dealers Act of 1958
The Act, by requiring the licensing of hide skin and wool dealers,
ss. 4, 5, regulates the buying and selling of hides, skins and wools. Tanners
are excluded from the Act by s. 1 (3). Cancellation of a licence occurs
when a court decides that the licensee is not a fit and proper person, or
upon conviction for an offence against the Act or regulations, s. 7.
Members of the police force are given investigatory powers by s. 9,
and are protected in the bona fide and non-negligent exercise of their
duties by s. 15. Licensees are required to display their names and
 PRELIMINARY NOTE 19

occupations on business premises and trade vehicles, s. 11. It is an

offence for an unlicensed person to buy any hide, skin or wool, s. 4 (to
which the section lists exceptions) and it is also an offence for an
unlicensed person to pretend to be licensed. In proceedings for offences
under ss. 4, 12, the onus is on the defendant to prove that he was licensed,
s. 13 (4).
Mercantile Acts, 1867 to 1896
This Act deals with a variety of matters of a mercantile nature. The
chief of these are referred to in more detail below.
Powers of A ttorney. Powers of attorney may be made effective until
notice of death or revocation comes to the attorney, and the attorney's
solemn declaration that he had no notice of death or revocation is made
evidence of the fact in favour of a person taking in good faith and for
value, Mercantile Acts, 1867 to 1896, s. 2, p. 119, post.
Extension of Rights of Sureties. A surety who satisfies the debt is
given the right to the benefit of all judgments, specialties and other
securities in respect of the debt held by the principal creditor, Mercantile
Acts, 1867 to 1896, s. 4, p. 120, post.
Bills of Lading. Sections 5-7 of the Mercantile Acts, 1867 to 1896,
p. 121, post, follows the Bills of Lading Act, 1855, 18 & 19 Vic. c. 111.
The object of the provisions is stated in the preamble in s. 5. The
endorsement of a bill assigns not only the property in the goods but also the
rights and liabilities under the contract with the carrier, s. 5, and the bill of
lading in the hands of an endorsee for value constitutes conclusive evidence
of shipment of the goods as against the master of the ship or other person
signing it, s. 7.
Gaming Securities. All securities given for a consideration consisting
of winnings at gaming or betting or for repaying money lent for gaming
or betting are deemed to have been made for an illegal consideration,
Mercantile Acts, 1867 to 1896, s. 43, p. 122, post. An exception is
however made where the betting transaction is with a bookmaker on a
racecourse by Racing and Betting Acts, 1954 to 1966, s. 139 (3), title
GAMING, Vol. 6. p. 386.
Fraudulent conveyances. The Mercantile Acts, 1867 to 1896, ss. 46-
48, contain provisions re-enacting the statute 13 Eliz. c. 5 which makes
voidable at the option of creditors conveyances and assignments of
property, real and personal, where made with intent to defeat or delay
creditors. The rights of purchasers for value in good faith are protected.
Sections 44 and 45 avoid certain fraudulent gifts.
The avoidance of conveyances made to defraud purchasers is dealt
with by the Mercantile Acts, 1867 to 1896, ss. 48-52, p. 126, post, which
re-enact the provisions of the statute 27 Eliz. 1 c. 4. Here again, however,
the rights of purchasers for value and in good faith are protected.
Limited Partnerships. Such partnerships are made possible by the
Mercantile Acts, 1867 to 1896, ss. 53-68, p. 128, post. The distinguishing
features of such partnerships are, firstly, that in addition to members in the
position of ordinary partners ("general partners"), they contain "special
partners", whose general liability is limited to specific amounts contributed
by them to the common capital, and secondly, that the capital of the
partnership cannot be reduced below the original amount by withdrawal
of capital or division of profits. Subject to the express provisions of the
20 MERCANTILE LAW Vol. U

Mercantile Acts, 1867 to 1896, the provisions of the Partnership Acts,

1891 to 1965, title PARTNERSHIPS, are applicable to such partnerships,
ibid., s. 5 (3).
Possessory Liens Act of 1942
This Act gives statutory recognition of the right of the holder of a
possessory lien for an amount not exceeding $100 to sell the goods
deposited with him, s. 3, and regulates the manner in which he may
exercise such right, ss. 4-11.
Profiteering Prevention Acts, 1948 to 1959
The general purpose of this Act is to regulate prices of certain
goods and rates of certain services, and to prevent the creation of
combines and monopolies. By s. 7, the overall administration (subject
to the Minister) of the Act is in the hands of the Commissioner of Prices,
appointed under s. 10. Wide powers are conferred on the Commissioner,
for which, see notes to s. 10. A Prices Advisory Board is constituted by
s. 8, the chief function of which is to advise the Minister as to whether
or not goods or services should be declared, or should cease to be
declared, s. 9.
Part III deals with maximum prices and rates for goods and services.
Under s. 26, the Governor in Council may declare certain goods or
services. By s. 27, the Commissioner may fix maximum prices or rates
for such declared goods or services. It is then an offence to sell or supply
declared goods or services at a price or rate higher than the maximum,
s. 43, or to payor offer to pay more than such maximum, s. 45. lnter-
wholesale and inter-retail transactions are specially dealt with by ss. 33, 34.
Protection to the unwary public is afforded by ss. 36-39A. Producers,
vendors and suppliers of any goods and services are required to keep
proper books by s. 40. Speculating in goods is prohibited by s. 53, and
s. 54 declares it an offence to corner or restrict the market. Goods the
subject of such an offence may be forfeited, s. 55.
Part IV deals with combines and monopolies. It prohibits illegal
concessions, s. 61; iIJegal refusals to deal, s. 62; illegal monopolies, s. 63;
sales at prices fixed by a commercial trust (as defined by s. 60), s. 64.
Severe penalties are provided by s. 65.
Part V deals with land sales, and is presently of little practical
importance. See note to s. 71.
General provisions include manner of giving and proving notice in
writing, ss. 81, 82A; manner of proving maximum price or rate, s. 82;
offences and joint offences, ss. 86, 87. In prosecutions under the Act, it is
immaterial that the defendant did not know the maximum price or rate,
s. 83.
Sale of Goods Act, 1896
The law relating to the sale of goods was codified by the Sale of
Goods Act of 1896, p. 19 I, post, which closely follows the English Sale
of Goods Act, 1893, 56 & 57 Vic. c. 71, for which see 22 Halsbury's
Statutes of England, 2nd ed., p. 985. The Act is divided into seven parts;
Part I, dealing with the interpretation of terms; Part II, with the formation
of the contract, including the contract of sale, the formalities of the
contract, the subject-matter of the contract, the price and condition and
warranties; Part Ill, with the effect of the contract, transfer of property as
between buyer and seller and transfer of title; Part IV, with the performance
 PRELIMINARY NOTE 21

of the contract; Part V, with the rights of the unpaid seller against the
goods; Part VI, with actions for breach of the contract; Part VII, with
certain supplementary matters, including a saving clause excepting from
the scope and effect of the Act (a) the rules in bankruptcy relating to
contracts of sale; (b) the rules of common law, including the law
merchant, save in so far as they are inconsistent with the express provisions
of the Act, and, in particular, the rules relating to the law of principal and
agent, and the effect of fraud, misrepresentation, duress and coercion,
mistake and other invalidating cause, all of which are to continue to apply
to contracts for the sale of goods; (c) the enactments relating to bills
of sale or any enactment relating to the sale of goods which is not expressly
repealed by the Act; (d) transactions in the form of a contract for sale
which are intended to operate by way of mortgage, pledge, charge, or other
security.
The Sale of Goods Act of 1896, p. 191, post, was intended to be a
codifying Act and in construing it certain principles peculiar to the
interpretation of such Acts must be borne in mind. These are dealt with
in the notes to s. 2 of the Criminal Code Act, 1899, title CRIMINAL
LAW, Vol. 3, p. 194. See also R. v. Bernhard, [1938] 2 All E.R. 140,
where it was said that in construing an Act declaratory of the common law
earlier cases might be consulted.
See generally, with respect to sale of goods, 34 Halsbury's Laws of
England, 3rd ed., title Sale of Goods; 39 English and Empire Digest
(Rp!.), p. 435; J oske's Sale of Goods and Hire Purchase, 2nd ed.
Second-hand Wares Act of 1921
All collectors of and dealers in second-hand wares are required by
the Second-hand Wares Act of 1921, p. 233, post, to be licensed. The
Act also contains numerous provisions regulating the carrying on of
business by such persons. A warrant may be had to search dealers'
premises for second-hand wares believed to have been stolen or unlawfully
obtained.
Sheepskins (Draft Allowance Abolition) Act of 1953
By this Act any attempt to incorporate in a contract for sale of
sheepskins the mercantile custom of deducting from the price a draft
allowance, shall be void.
Trade Coupons Acts, 1933 to 1947
It is unlawful to issue, deliver, advertise, or print an advertisement of,
trade coupons, as defined by s. 3 of the Trade Coupons Acts, 1933 to
1947, p. 243, post, or to issue or deliver goods accompanied by any
promise or offer that the purchaser or any other person will receive any
advantage of any kind whatsoever dependent on the purchase, with the
exception of certain normal discounts. It is also declared unlawful to give
money or goods on presentation of or in exchange for any trade coupon,
Trade Coupons Acts, 1933 to 1947, s. 4, p. 244, post. By s. 4A, certain
transactions in connexion with the sale and advertisement of goods are
prohibited.
Warehousemen's Liens Act of 1938
This Act gives statutory recognition of the liens of warehousemen on
goods deposited with them for storage. It recognizes their right to sell the
goods, s. 6 (1) and regulates the manner in which they may exercise such
right, ss. 4-9.
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Wool Draft Allowance Abolition Act of 1936

A mercantile custom, stated by the preamble to have formerly
existed in Queensland, of making to buyers of wool an allowance of one
pound avoirdupois in every hundred-weight of wool purchased, is
abolished by the Act and any giving or claim of the allowance is constituted
an offence punishable summarily.