The Worker’s Liens Casebook was published in 2010, and spans over a hundred years of case law arising out of this legislation. This page contains a list of the contents of the book, and also some updates to reflect recent developments.
The updates are shown in red.
The numbers after the headings refer to the page numbers.
Cases are listed only where there are updates.
Contents 7
Abbreviations 12
Tables 14
Table of Cases 14
Statutes 26
Preface 29
I – Introduction 32
Overview of the Act 32
Terminology 32
The Name of the Act
Latin Tags
Interpretation of the Act 36
The Always Speaking Rule
The Purposive Rule
Sources 38
Case Law
South Australian Cases
Other Australian Cases
Overseas Cases
Texts
The Artificer’s Lien, RD Elliott
Hansard
Take Up Rates
The Case for Reform 41
Page 42, paragraph 21: add bullet point:
Excelsior v Alan Sheppard (2012): “The proper construction of the worker’s liens legislation is notoriously obscure”
Reform in South Australia 43
Page 43, # 26: The reference at footnote 40 should be to page 45.
Reform in the Northern Territory
Success Rates 48
II – The Scheme of the Act 50
The concepts of work, contract and contract price 50
Manual work 53
Page 56, Footnote 67: The reference should be to page 664
Personal Services 57
Done to the land or any fixture thereon 58
Page 57, paragraph 47: Insert opening quote before “personal service”
What land is lienable? 59
Page 59: Add a footnote at the end of para 55:
See MSP Group v Fernleigh at paragraph 5 (page 615 below); the question may be one of fact (Bank of New Zealand v Farrier-Waimak [1964] NZLR 9, quoted at paragraph 12 of MSP). The general rule appears to be that the lien attaches to each title to land that is worked on, and if work is treated as a whole, perhaps to other titles where the land in question has benefited.
Charges – no need for the work do be done to land
Work – part only of a contract deliverable 59
Page 60, Footnote 74: The reference should be to page 674
Page 60, insert after paragraph 58
Part use of materials
58A For the purpose of section 5, the lien accrues for work done to the land, or materials are used or intended to be used in work on the land. In the case of work done, the position is ordinarily fairly straightforward: if work is done on the land, that work is done exclusively on the land. But in the case of materials, the position can be more complex. But what is the position where, pursuant to the lienor’s contract, some of the materials are used and the land in question, and some are not? This situation is by no means unusual; suppliers often provide materials under a single contract which are intended to be used on a number of different projects.
58B Unlike section 6, which prescribes the extent of the lien[1], section 5 looks like a “yes or no” test. Does the claimant have a lien or doesn’t he?[2] However, in Calabrese v Najar [2012] SADC 146 the position was that the claimant provided stone, only part of which was used on the defendant’s land. It was conceded on the plaintiff’s behalf that the lien could only relate to the materials used and the land, which in that case amounted to about half of the total contract price. Albeit not required by the express wording of the Act, that concession accords with common sense.
[1] sections 6 limits the extent of the lien to the amount payable by the owner, but contains no words limiting the extent of the lien to work down or materials supplied for the land.
[2] Under section 5, the lien only arises for the contract price so far as accrued due. But that is not the quantitative issue being considered here.
Conclusion – Examples of Qualifying and Non-qualifying work
Formal Requirements
Is a right to a quantum meruit a contract?
Does a contract include a contract of service ?
What is the “contract price” 65
Page 65, paragraph 71: the page refereence at the end of footnote 88 should be to page 679.
Contract price as a moveable feast 65
Certification of Contract Price
Statutory modification of contractual rights
Damages
Set-offs against contract price
Contractors’ Liens 71
Page 71, paragraph 95: after :”recevership” add footnote:
See paragraph 233 below for a list of the section 10(2) insolvency events
Is a lienor a secured creditor?
When does a lien validate direct payment?
Charges
Express contractual provision
Assignment
Is a lien under the Act a further exception?
The Section 6 limit to the extent of the lien 84
The concept of the fund
Does the head contract price need to be payable at the time of the lien?
In favour of “presently payable”
In favour of “payable now or in the future”
Quantum payable by the Owner
Dormant liens
Bare Suppliers not Entitled to a Charge
Sub-subcontractors are included
Workers entitled to duplicated charge
Does the head contract price need to be presently payable? 99
The need for notice of the charge 101
The need for a section 10(2) Notice or Event 101
Replace paragraph 192:
192. It was said by Murray CJ in Miller’s Lime162 to be necessary for the claimant to serve a notice under section 10(2)(a), or for one of the section 10(2)(b) insolvency events163 to occur, before the charge comes into existence. But that dictum was not followed in W Curl v Buck industries, in which Hogarth J considered the issue more thoroughly, and concluded that whilst a sub-contractor must have moneys presently payable to him under his sub-contract, those moneys do not also need to be “due” within the meaning of section 10(2); see page 823 below. The section 10(2)(a) notice, is of course, a notice
given (in the normal tripartite situation) to the head contractor, not to the owner, and so the owner may well know nothing of a section 10(2)(a) notice. Accordingly, it is suggested that the charge comes into existence without the need for a section 10(2) notice of event.
And footnote 162:
See paragraph 7 of the judgment at page 594 below. This had not been the view of Richards J in Pitt v Glenelg, not in his dissenting judgment in Miller’s Lime; see from paragraph 44 on page 607 below.
When should a charge be claimed? 102
Contracting out of the Act 102
III – The Operation of the Act 105
Page 105: Insert at beginning of section:
Introduction – A Check List
201A The operation of the Act is far from straightforward. The following pages consider a number of detailed questions which may arise. For doing so, it is convenient to refer to a passage from Cooper v Maloney (No 6) [2012] SASC 212 in which Justice Blue set out the various elements that it was necessary for a subcontractor to show in order to succeed with a claim for a lien:
98 … in order to enforce the lien, it is necessary for [the plaintiff subcontractor] to establish the following matters:
- he entered into a contract with [the head contractor] to undertake work (“the sub-contract”);
- the sub-contract was for work to the land or fixtures thereon;
- he undertook work pursuant to the sub-contract;
- the work undertaken was to the land or fixtures thereon;
- an amount was payable pursuant to the sub-contract by [the head contractor] to [the plaintiff subcontractor] for that work;
- the amount was due within the meaning of section 10 of the Act by reason of having been demanded by notice in writing signed by [the plaintiff subcontractor] and sent by registered post to [the head contractor];
- the work was done with the assent (express or implied) of [the owner] as owner of the land;
- there was a contract between [the owner] and [the head contractor] binding [the owner] as owner to pay a contract price to [the head contractor] for work to be done to the land or fixtures thereon (“the head contract”);
- the work done and materials furnished by [the plaintiff subcontractor] to [the head contractor] under the sub-contract were done and furnished for the purpose of the head contract;
- on 31 October 2012, when the lien was registered, there was a portion of the contract price payable by [the owner] to [the head contractor] pursuant to the head contract for the purpose of which the work was done by [the plaintiff subcontractor] pursuant to his sub-contract with [the head contractor];
- the Notice of Lien was registered within 28 days after the contract price became due by [the head contractor] to [the plaintiff subcontractor] pursuant to the sub-contract; and
- [the plaintiff subcontractor] brought an action against [the owner] as owner of the land for enforcement of the lien with 14 days of the registration of the lien.
In that case, the statement of claim pleaded elements 1, 5 and 11. There was an imperfect plea in respect of elements 3 and 5. Elements 2, 4, 8, 9 and 10 were not pleaded. Nevertheless, the court was prepared to allow a trial on the lien issues
Can a section 10(2)(a) notice be given before the money is contractually due to the claimant? 105
Does there need to be a section 10(2) event for the lien to be available for enforcement? 105
Page 107, footnote 170: The reference should be to page 456.
Does a section 10(2)(a) notice need to be given promptly? 107
Can more than one notice be given? 107
Page 108, paragraph 210. Add:
See also Excelsior v Alan Sheppard [2012] SASCFC 84 per Stanley J at paragraph 117.
Can a section 10(2)(a) notice be given inadvertently? 108
Does the sum claimed need to be accurate? 109
Page 110, paragraph 216: add final bullet point
In Calabrese v Najar & Anor [2012] SADC 146, Judge Cole found that the plaintiff was entitled to judgment for the full sum claimed in the Notice of Lien of $52,216, but of that sum, but the lien was only enforced in the sum of $26,108, being the element of the claim that related to materials used and the defendant’s land. There was no suggestion that that discrepancy invalidated the lien.It appears that the court’s attention was not drawn to the Ambir v Pasalis decision.
What consequences flow from an invalid notice? 111
Formal requirements for a notice of demand 111
The Registration of a Lien 113
Page 116: add at the end of paragraph 232:
Can a lien be registered more than once?
A lien is deemed to be in the nature of a caveat, and so a further lien cannot be registered in respect of the same claim that without the permission of the court. Section 191 (K) of the Real Property Act 1886 provides as follows:
It shall not be lawful for any caveator other than the Registrar-General, or for anyone acting on behalf of any such caveator, to lodge a further caveat relating to the same subject matter without the permission of the Court;
See Excelsior v Alan Sheppard[1] for an example of the court granting such permission.
[1] [2012] SASCFC 84
Section 10(2)(b) Insolvency Events 116
Page 116: after paragraph 234, add new paragraph:
234A Receivership is not an insolvency event; see Marriott Industries v Mercantile Credit [1991] SASC 2874 at page 546 below.
Multiple Section 10(2) Events 116
Section 10(2)(b) Insolvency Event before Money Payable 117
Does the notice need to be in any particular form?
Does the notice need to be express?
Does the notice need to be in writing?
The Combination of Notices 118
The Enforcement Proceedings 119
Page 119, paragraph 248. Delete existing paragraph and substitute:
For the first 119 years of the Act’s life, it was regarded as clear that these time limits were not in the nature of limitation periods which were capable of extension, and that if the claimant failed to bring his enforcement proceedings in time, then his lien or charge is irretrievably lost[1]. However, in Excelsior v Alan Sheppard[2] the full court found that the 14 day window provided for by section 15 is capable of extension in appropriate circumstances under section 48 of the Limitation of Actions Act 1936.
[1] See for example Blythe Green and Jordain v Sienna.
[2] [2012] SASCFC 84
Where must proceedings be issued? 120
Need the proceedings be served? 121
The subject matter of the proceedings 121
The relationship with arbitration 122
The relationship with adjudication 124
Need the proceedings be seen through to a conclusion? 128
The Mode of Enforcement of Liens 128
Other Deposits and Payments by the Lienee 131
Deposit into Court to Abide the Event under section 10(5)
Payment into Court under section 26
Deposits with the Registrar-General under section 16
Does a Claimant need to prove his lien entitlement following payment in?
Who may apply under section 32
Page 138, paragraph 308. Add
In Hill v Dujmovic [2013] SADC 146 the court refused to cancel the lien in order to allow a proposed sale, nothwithstanding the owner’s contention that the property was mortaged for more than the sale price such that the continuatioon of the lien was pointless. The court found that there was a serious issue at stake, namely whether the proposed sale was a colourable transaction designed to defeat the enforcement of the lien held by the plaintiff, and in any event, the proposed sale was plainly not one at arm’s length.
Strike Out/Summary Judgment 138
Page 140: Insert before “Statutory Sanctions for Improperly Claimed Liens
Abuse of Process
315A Further, rule 193 (B)) of the Supreme Court Rules 2006 provide is that the court may dismiss proceedings if they are an abuse of the process of the court. The court also has in here jurisdiction in this regard. One species of abuse of process is instituting proceedings for an ulterior motive, and proceedings are brought for an ulterior purpose if the plaintiff knows that they have no merit, intends not to proceed to trial, and brings the proceedings purely for the purpose of placing pressure on the defendant to settle by way of compromise[1].
315B It is probably true to say that many proceedings brought pursuant to the Worker’s Liens Act are an abuse of process in this sense, in that the plaintiff’s principal purpose is to apply commercial pressure on the defendant, and to extract a settlement, or a better settlement, that could otherwise be obtained. In practice, however, it is extremely difficult to prove such a motive, at any rate at an interlocutory stage, and there appear to be no examples of lien actions being dismissed on such a basis[2].
[1] See Cooper v Maloney (No 6) [2012] SASC 212 at paragraphs 143 to 148 for a summary of these principles.
[2] In Parob v Pipeline Properties (see page 657 below) the defendant sought removal of the lien on a number of grounds, including that the action was vexatious and an abuse of process. However, the court treated the various grounds of attack as, in effect, an application for summary judgment; see paragraph 1 of the decision on page 658 below.
Statutory Sanctions for Improperly Claimed Liens 140
Costs 141
Procedure on Removal 143
Removing the Lien from the Title 143
IV– Section by Section Annotation
The Worker’s Liens Act 1893 146
Section 1 – Short Title
Section 2 – Interpretation
Part 1 – Liens And Charges 148
Section 4 – Workers’ Liens
Section 5 – Lien of contractor or subcontractor
Section 6 – Extent of Lien
Section 7 – Charge of worker and subcontractor
Section 8 – Priority of liens and charges
Section 9 – Lien subject to registered, but not to unregistered, mortgage etc
Section 9A – Unregistered interests
Section 9B – Liens for materials
Part 2 – Registration And Discharge of Liens 152
Section 10 – Lien to be registered
Section 11 – Duty of Registrar-General on receiving notice of lien
Section 12 – Notice to be deemed caveat
Section 13 – Registrar-General to keep index
Section 14 – Notices of lien open to inspection
Section 15 – Liens to cease in certain events 154
Page 154, section 15: add footnote at end of section
Or now, it appears, unless that 14 days is extended by the court under section 48 of the Limitation of Actions Act 1936; see Excelsior v Alan Sheppard [2012] SASCFC 84.
Section 16 – Satisfaction of liens to be recorded
Section 17 – Proceedings to compel Registrar-General to record lien in event of refusal
Section 18 – Judge or magistrate may make order
Section 19 – Enforcement of lien on goods under section 4(2)
Section 20 – Mortgagee may pay wages or contract price and may recover wages or contract price paid by him
Part 3 – Legal Procedure 156
Section 21 – Action to enforce lien or charge
Section 22 – Procedure in case of deposit
Section 23 – Person primarily liable may be joined in action to enforce lien or charge
Section 24 – Certificate of judgment prima facie evidence
Section 25 – Order for enforcement of lien or charge, how carried into effect
Section 26 – Person affected by lien or charge may pay money into court
Section 27 – Court may order detention, inspection etc
Section 29 – Claims that may be included in actions to enforce lien or charge
Section 30 – Person interested in subject matter may be made a party
Section 31 – Lienor may pay moneys due to mortgagee of chattels
Section 32 – Claim or registration may be cancelled
Section 33 – Penalty for claim with intent to defraud
Section 34 – Penalty for vexatious claim
Section 36 – Jurisdiction etc of courts preserved
Section 37 – Costs
Part 4 – Miscellaneous 162
Section 39 – Regulations
Section 41 – Persons having lien at common law may sell
Page 162, Section 41: For a recent example of a lien being sought over the log books of helicopters, see Yeend v Anglberger [2010] SADC
Section 42 – Application of proceeds of sale
Section 43 – Wages of worker when deemed to be payable monthly
Section 44 – Other remedy not prejudiced
Section 45 – Penalty on attempt to deprive worker of lien on goods
Section 47 – Duties of Registrar-General
Section 48 – Lands etc of Crown not affected by this Act
Section 49 – Act to apply to land under Real Property Act
Worker’s Liens Regulations 1999 166
Page 166: Delete these regulations and substitute:
Worker’s Liens Regulations 2014
under the Worker’s Liens Act 1893
1—Short title
These regulations may be cited as the Worker’s Liens Regulations 2014.
2—Commencement
These regulations come into operation on the day on which they are made.
3—Interpretation
In these regulations—
Act means the Worker’s Liens Act 1893.
4—Fees
The fees payable to the Registrar‑General under the Act are set out in Schedule 1.
5—Forms
The form of a notice to be registered in the General Registry Office by a person claiming a lien under section 10(3) of the Act is set out in Schedule 2.
Schedule 1—Fees
| 1 | For lodging a notice of lien (section 10(3)) | $152 |
| 2 | For entering a memorandum of cessation of lien (section 16) | $152 |
| 3 | If a notice of lien or an application to enter a memorandum of cessation of lien is withdrawn before the appropriate memorandum is entered, the fee payable is reduced to | $58 |
| Note—
A fee is payable for entering a memorandum of withdrawal of lien under the Real Property Act 1886. |
||
Schedule 2—Form
Form 1—Notice of lien (section 10(3))
Description of property over which lien is claimed: (Certificate(s) of title affected)
Details of lienor—person lodging lien: (Full name, address and occupation)
Details of lienee—registered proprietor: (Full name and address)
Details of claim:
The lienor claims a lien on the estate or interest of the lienee in the land described above—
(1) The amount claimed by the lienor (state the amount in words and figures).
(2) The reason for the claim (state the reason—eg wages, contract price etc) due in connection with work done on or in connection with the land with the assent of the lienee.
(3) An action will be brought in the (full name of Court) to enforce the lien.
Dated:
Signature of lienor:
Signature of witness:
Signed in my presence by the lienor who is either personally known to me or has satisfied me as to his or her identity.
Details of witness: (Full name, address and business hours telephone number)
Note—
It is an offence to improperly witness a signature.
Schedule 3—Revocation of Worker’s Liens Regulations 1999
The Worker’s Liens Regulations 1999 are revoked.
Headlines 167
Federal 167
High Court
Federal Court of Australia
South Australia 168
Full Court
Single Judge
District Court
Magistrates Court
Northern Territory 176
Full Court
Single Judge
Ambir v Paspalis – 271
Page 272
Line 1 – replace Speke Hal with Speke Hall
Footnote 386 – The reference should be to page 404
Page 406: Insert new case:
Excelsior Land Holdings Pty Ltd & Ors v Alan Sheppard Constructions Pty Ltd
[2012] SASCFC 84
Supreme Court of South Australia
Gray, David and Stanley JJ
13 July 2012
Headnote
In this case, the plaintiff contractor had served two section 10(2)(a) demands for payment, the first on 25 February 2010 in the sum of $1,127,422.81 and then, a month or so later on 29 March 2010 for $501,898.81. The first lien was successfully registered pursuant to the first notice, but the Registrar-General refused to register any lien pursuant to the second notice on the basis that it related to the same subject matter as the original notice of lien. The Registrar-General had apparently formed the view that, before the second lien could effectively be lodged, the permission of the court was necessary under section 119 (k) of the Real Property Act [1]. The plaintiff contractor issued enforcement proceedings on 22 April 2010, which was outside the 14 days window following registration provided for by section 15 of the Act. In those proceedings, the plaintiff contractor sought an extension of time, and permission to amend the original lien, and permission to lodge a further lien.
The district court granted leave to the plaintiff contractor to lodge or register a further lien in substitution for the original one, and directed the Registrar-General to register the same.
On an unsuccessful appeal, a single judge also found for the plaintiff contractor, but took a different tack, finding that the original notice of demand was ineffective because it was signed by the plaintiff’s solicitor, instead of by the plaintiff itself. That finding cleared the way for the second notice to be effective.
The full court again found for the plaintiff contractor but took yet a different tack again, finding as follows:
- That the original notice was not invalid, and that there was no reason why a notice of demand should not be signed by a duly authorised agent[2];
- That the majority of the subsections of section 191 of the Real Property Act 1886 are inconsistent with the scheme of the Worker’s Liens Act and accordingly do not apply[3];
- Nor is there any power in either the Real Property Act or the Worker’s Liens Act to make an order of substitution[4];
- Neither is there any power to amend a lien that has ceased to exist under section 15 of the Worker’s Liens Act for failure of the lienor to issue enforcement proceedings within 14 days[5];
- The court does have power to grant permission to lodge a further notice of lien if, but only if, enforcement proceedings are issued within the required period[6];
- The 14 day period stipulated by section 15 of the Workers Liens Act is capable of being extended by the court under section 48 of the Limitation of Actions Act 1936[7];
- On the facts, the court ordered that the plaintiff be granted an extension of time under the Limitation of Actions Act, and also permission to lodge a further lien under section 191 (k) of the Real Property Act[8].
The most remarkable feature of this decision is the finding that section 48 of the Limitation of Actions Act permits the court retrospectively to extend the 28 day period for the issue of enforcement proceedings provided by section 15 of the Worker’s Liens Act. Gray J accepted the well-established line of authority to the effect that once a lien “ceases” in accordance with section 15, then that lien ceases to exist and cannot be resurrected; see paragraph 65 of the judgment. David J agreed with Gray J. Stanley J also concluded that if a lean ceases in accordance with section 15 then it cannot be resurrected; see paragraph 118 of the judgment. In this case, the lien had ceased. And yet the effect of the court extending time under the Limitation of Actions Act was precisely to resurrect the lien. However remarkable it may be, the position now is that a failure of a lienor to issue enforcement proceedings within the 28 days required by section 15 is not necessarily fatal, in that it may be cured by a retrospective extension of time under section 48 of the Limitation of Actions Act. In other contexts, the courts have shown themselves to be remarkably ready to grant extensions under that section.
The finding that the section 10 notice does not need to be signed by the lienor personally is less remarkable of itself; it is entirely in line with the decision in Colmup v Mecair Engineering[9]. It is however curious that that decision is not mentioned either in the appeal before a single judge, Justice White, who reached a different conclusion on the issue[10], nor in this decision by the full court.
A yet further remarkable feature of the decision is that no reference at all seems to have been made, either by Justice White, or by the full court, to the fact that the original demand claimed an amount that was not due[11]. See the discussion at page 109 to 110 above; if the decision of Martin CJ in Ambir v Paspalis[12] had been followed, that inaccuracy would have been treated as fatal to the validity of the original notice of lien. In this respect, this decision appears to be per incuriam in respect of this issue[13].
Representation
Ian Robertson SC with G King instructed by Duncan Basheer Hannon for plaintiff contractor, respondent in the appeal.
Neil Strawbridge instructed by WBH Legal for the defendant owner, first appellant in the appeal.
D Mackintosh instructed by Crown Solicitor for the State Of South Australia for Registrar-General Of Lands, intervener in the appeal.
Decision
Gray J.
Introduction
1. On 14 July 2010, a District Court Judge granted leave to the plaintiff and respondent, Alan Sheppard Constructions Pty Ltd, to “lodge or register” a further worker’s lien over the whole of the land comprised and described in certificate of title register book volume 5914 folio 170 “in substitution” of lien number 11353641. The Court directed the Registrar-General of Lands to register the further lien.
2. The defendants and appellants, Excelsior Land Holdings Pty Ltd, Estate Land Holdings Pty Ltd and Excelsior Land Management Pty Ltd, appealed from this decision.[14] The appeal came on for hearing before a Judge of this Court who dismissed the appeal. The Excelsior parties have now lodged an appeal against the decision of the Judge and have also sought, should it be necessary, permission to appeal.
3. Following the hearing of the appeal, with the consent of all parties, the Court invited the Registrar-General of Lands to assist the Court. The Registrar-General accepted the invitation and filed a written submission in which it was contended that there was error in the approach of the District Court Judge and the Judge of this Court. The Excelsior parties advised the Court that in part they accepted the Registrar-General’s submissions and otherwise did not wish to make any submission in response. Sheppard Constructions joined issue with the Registrar-General’s submissions and filed a response in which it was pointed out that if the Registrar-General was correct, the notice of alternative contention that had been filed and on which the Court had received written submissions, would need to be addressed.
4. Sheppard Constructions is a building company. It entered into building contracts with Excelsior Land Management. The contracts required Sheppard Constructions to construct retirement units on land of Excelsior Land Holdings at Woodcroft, being the land comprised in certificate of title register book volume 5914 folio 170. Sheppard Constructions was also required to construct units on the land of Estate Land Holdings, being the land comprised in certificate of title register book volume 5979 folio 598.
5. Sheppard Constructions claimed it had carried out the contract works, but had not been paid all that was due under the respective contracts. On 25 February 2010, Sheppard Constructions, through the agency of its solicitors, served a notice of demand on Excelsior Land Management and Excelsior Land Holdings for $1,127,422.81 in the following terms:
…
We are acting for Alan Sheppard Constructions Pty Ltd of 403 Glen Osmond Road, Glen Osmond.
We have been instructed to demand payment of the sum of $1,127,422.81 being payment due for work done, materials supplied and interest to 25 February 2010 in respect of land at Pimpala Road, Woodcroft SA 5162.
Unless this amount is paid to us within seven (7) days from the date hereof proceedings will be instituted to recover the same.
Yours faithfully
DUNCAN BASHEER HANNON
…
6. On 5 March 2010, Sheppard Constructions lodged notice of lien for registration. Lien number 11353641 claiming the amount of $1,127,422.81 was registered under the Worker’s Liens Act 1893 (SA).[15] The notice of lien was lodged by the same solicitors who had acted as the agent for Sheppard Constructions in making the earlier referred to demand.
7. The original notice of lien was registered over the whole of the land comprised in certificates of title register book volume 5914 folio 170 and volume 5952 folio 170. The amount claimed was said to be the balance of the contract price for work done, materials provided and monies outstanding in connection with the land comprised in certificate of title register book volume 5914 folio 170. The notice of lien was lodged erroneously in respect of the land, being the land comprised in certificate of title register book volume 5952 folio 170, and the amount claimed was also incorrect, being in fact an amount of debt claimed to be owed by Excelsior Land Management under the contract, and should have been identified as $501,898.81. In short, the notice of lien contained two errors in that it extended over an extraneous title and purported to claim about twice the amount that should have been claimed.
8. Section 15 of the Worker’s Liens Act provides that a lien shall cease unless an action should be brought for its enforcement within 14 days from registration. The original notice of lien indicated that Sheppard Constructions would bring proceedings in the District Court. However, such an action was not commenced within 14 days from registration.
9. On 29 March 2010, Sheppard Constructions served a second notice of demand on Excelsior Land Management for the sum of $501,898.81. The demand was in the following terms:
NOTICE OF DEMAND
Under Section 10, Workers Liens Act 1893 (as amended)
TO: EXCELSIOR LAND MANAGEMENT PTY LTD
(ACN 115 032 954)
Level 2, 139 Frome Street
ADELAIDE SA 5000
TAKE NOTICE that ALAN SHEPPARD CONSTRUCTIONS PTY LTD (ACN 007 762 978) of 403 Glen Osmond Road, Glen Osmond SA 5064 HEREBY DEMANDS the payment by you to it of the sum of FIVE HUNDRED AND ONE THOUSAND EIGHT HUNDRED AND NINETY EIGHT DOLLARS AND EIGHTY ONE CENTS ($501,898.81) being the contract price which you owe it for work done and materials supplied in connection with that work at your request to the land comprised in Certificate of Title Register Book Volume 5914 Folio 170 situated at Lot 177, Pimpala Road, Woodcroft SA 5162. Full particulars of the said sum and of the work and materials in respect of which it fell due have already been supplied to you.
DATED this 29th day of March 2010
EXECUTED by ALAN SHEPPARD
CONSTRUCTIONS PTY LTD
(ACN 007 762 978) in accordance with
Section 127(1) of the Corporations Act 2001
by the authority of its Director:
[signature] [signature]
Director In the presence of:
MAX BASHEER
Witness Name:
10. On 1 April and again on 8 April 2010, Sheppard Constructions attempted to lodge a further notice of lien claiming the sum of $501,898.81 over the land in certificate of title register book volume 5914 folio 170 alone. The Registrar-General formed the view that the further notice of lien related to the “same matter” as the original notice of lien. In accordance with his usual practice,[16] the Registrar-General refused to accept the further notice of lien without being provided with evidence that the lodgement was permitted by an order under section 191(k) of the Real Property Act 1886 (SA).
11. It appears that the Registrar-General had formed the view that the combined effect of section 191(k) of the Real Property Act and section 12 of the Worker’s Liens Act meant that Sheppard Constructions could lodge a further lien on the title only if it had first obtained permission of the Court.
12. Section 191(k) of the Real Property Act prevents a caveator from lodging a further caveat “relating to the same matter” without the permission of the Court and it provides:
Not to lodge further caveat without permission
it shall not be lawful for any caveator other than the Registrar-General, or for anyone acting on behalf of such caveator, to lodge a further caveat relating to the same matter without the permission of the Court;
[Emphasis in original.]
13. Section 12 of the Worker’s Liens Act deems a notice of lien in respect of land to be a caveat:
Notice to be deemed caveat
A notice lodged in respect of land under the provisions of the Real Property Act shall be deemed to be a caveat forbidding the registration of any dealing with the estate or interest sought to be affected by the lien, unless such dealing shall be expressed to be subject to the claim of the person lodging the notice, and the provisions of the Real Property Act relating to caveats shall, so far as applicable and so far as consistent with this Act, apply to every such notice.
[Emphasis in original.]
14. On 22 April 2010, Sheppard Constructions commenced proceedings in the District Court. It sought judgment against Excelsior Land Management for the total sum of $1,145,118.90, an order against Excelsior Land Holdings enforcing, in respect of the land comprised in certificate of title register book volume 5914 folio 170, the original lien, notice of which was lodged on 9 March 2010, and an order against Estate Land Holdings enforcing the further lien, notice of which was attempted to be lodged on or about 8 April 2010 in respect of the land comprised in certificate of title register book volume 5979 folio 598.
15. Sheppard Constructions at the same time sought an extension of time to enforce the lien claimed in the original notice of lien and an order granting leave to issue a further notice of lien over the land in certificate of title register book volume 5914 folio 170 in lieu of the original notice of lien; sought permission to amend the original lien by amending the sum to which it related to $501,898.81 and by deleting the reference to the land in certificate of title register book volume 5952 folio 170; and, in the alternative, sought the permission of the Court to lodge a further notice of lien over the land in certificate of title register book volume 5914 folio 170.
16. As noted above, on 14 July 2010, the District Court granted leave to Sheppard Constructions to “lodge or register a further Lien” over the land in certificate of title register book volume 5914 folio 170 “in substitution” of the first notice of lien, and directed the Registrar-General to register the same. The District Court Judge considered that he had power under section 191(k) of the Real Property Act to grant permission to the applicant to lodge a further notice of lien, and considered it just for that permission to be granted. As a consequence, the District Court Judge decided it was unnecessary to consider the other forms of relief sought by Sheppard Constructions.
17. The District Court Judge noted the submission of the Excelsior parties that pursuant to section 15 of the Worker’s Liens Act, the original lien had ceased to exist and that as a consequence, there was nothing to amend or substitute.
18. Section 15 of the Worker’s Liens Act provides:
Every lien under this Act upon the estate or interest of any owner or occupier shall cease unless an action shall be brought against the owner or occupier for enforcement of the lien within fourteen days from the registration thereof.
The District Court Judge by necessary implication rejected this submission, but did not provide reasons for his conclusion. His Honour concluded his reasons in the following terms:
In my view the court does have power to grant permission pursuant to s 191(k) to lodge a fresh lien where the justice of the claim warrants doing so. In this case the plaintiff realised shortly after lodging the first lien that it was defective. It sought to rectify the situation by restarting the process. A few days after the time limited for issuing proceedings to enforce the defective lien, it served a fresh Notice of Demand on the defendants. Promptly after service of the fresh Notice of Demand, it served a fresh Notice of Lien, and, when it was prevented from lodging the lien by the [Lands Titles Office], it commenced these proceedings. There is no real prejudice suffered by the defendants if the court grants the permission sought. On the other hand the plaintiff will lose its security if permission is not granted. The balance of convenience favours permission to lodge a fresh lien (Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57).
19. On 21 July 2010, in accordance with its undertaking to the Court, Sheppard Constructions lodged a withdrawal – number 11430924 – of the original notice of lien from both of the titles over which it had been registered. It also registered the further notice of lien – number 11430925 – claiming the sum of $501,898.81 over the whole of the land in certificate of title register book volume 5914 folio 170. On 26 July 2010, Sheppard Constructions filed a second statement of claim seeking to enforce the further lien.
20. Sheppard Constructions had acted at all times on the basis that the original notice of demand was a notice given by its duly authorised agent, its solicitor. No suggestion was made that the notice was defective and did not comply with the provisions of the Worker’s Liens Act. To the contrary, Sheppard Constructions pleaded that it had given a valid notice of demand.
21. The Judge of this Court, in dismissing the appeal from the District Court Judge, considered the intersection of section 191(k) of the Real Property Act and provisions of the Worker’s Liens Act. The Judge noted the terms of section 15 of the Worker’s Liens Act. The Judge considered that section 191(k) did empower the Court to direct in appropriate circumstances that a further notice of lien be registered. However, it appears that the Judge took the view that where an original lien had ceased, there would be no utility in exercising this power.
22. The Judge then addressed an entirely new issue that had not been raised before the District Court Judge. This issue concerned the effectiveness of the notice of demand that preceded the lodging of the original lien. The Judge concluded that the terms of section 10(2)(a) of the Worker’s Liens Act required that the lienor sign the notice of demand personally and in particular, an authorised agent could not sign the notice of demand as agent for the lienor. The Judge then reasoned that the initial notice of demand could be ignored when considering the utility of the grant of permission to lodge the second notice of lien. In these circumstances, the Judge reasoned that there was utility in the grant of permission for the lodgement of the second lien. The Judge then reasoned:[17]
As the notice of demand of 25 February 2010 was not signed by Sheppard Constructions (ie, executed by the company in the way contemplated by s 127 of the Corporations Act 2001 (Cth) or in any other authorised manner) I consider that it was not effective as a notice of demand for the purposes of s 10(2)(a) of the [Worker’s Liens Act]. That being so, it was not effective to cause the 35-day period contemplated by s 10(1) and (2) to run. The notice of 25 February 2010 can accordingly be ignored when considering the utility of the grant of permission to lodge a second notice of lien.
Sheppard Constructions did attempt to lodge the second lien within 35 days of the notice sent to Excelsior Land Holdings and Excelsior Land Management on 29 March 2010. Accordingly, there is utility in the grant of permission for the lodgement of that lien.
I do not regard it as material that permission was not granted and the second lien not formally registered on Title One within the 35 days which commenced to run as a result of the notices sent by Sheppard Constructions on 29 March 2010. Sheppard Constructions had registered the notice of lien by lodging it at the [Lands Titles Office]. The provisions of the [Worker’s Liens Act] have to be understood as operating in a practical way. They are not to be frustrated because a lienee may not be able to obtain a court order within the 35 day period, at least when the lienee has commenced in time proceedings seeking the appropriate relief.[18] Section 23 of the [Worker’s Liens Act] authorises a court to make such order in relation to the enforcement of a lien as may be just. An order under s 191(k) in relation to a summons filed, and a notice of lien lodged at the [Lands Titles Office], within the 35 day period would appear to be such an order.
Further, s 64 of the [Real Property Act] appears to empower a court to make orders, even after the expiry of the 35 day period, to restore the parties to the position which they would have been in had the Court been able to hear and determine Sheppard Constructions’ application within the 35 day period.
The Contentions of the Parties
The Excelsior Parties
23. The Excelsior parties said that by virtue of section 5 of the Worker’s Liens Act, Sheppard Constructions may have had an entitlement to register a notice of lien over the interest of Excelsior Land Holdings in the land in certificate of title register book volume 5914 folio 170. By section 10(1) of the Worker’s Liens Act, the lien was available only if the notice of lien was registered within 28 days of the unpaid contract price becoming due. By section 15 of the Worker’s Liens Act, the lien ceased if the enforcement action was not brought within 14 days. It was submitted that as the action was not so commenced, any lien that Sheppard Constructions may have had ceased at the expiration of 14 days, and having ceased was no longer available to be rectified or substituted. Further, it was contended that section 191(k) of the Real Property Act should not be understood as authorising the Court to permit the lodgement of a further notice of lien after the original notice of lien in respect of the same matter had ceased to exist. Finally, by their notice of appeal, the Excelsior parties challenged the Judge’s conclusion that the original notice of demand of 25 February 2010 was ineffective.
Sheppard Constructions
24. Sheppard Constructions contended that by operation of section 15 of the Worker’s Liens Act, rather than the lien after 14 days ceasing to exist, it ceases as something upon which an enforceable step can take place. The lien, it was said, is not a nullity, it is not void ab initio and the notice of lien remains on the title as a prior notational endorsement on the folio.
25. It was submitted that any further lien would take effect from the date of registration of the further notice of lien, and that the words in the order of 14 July 2010 “in substitution of” simply address the issue of the Registrar-General taking the view that permission was required before he could do anything in respect of the original notice of lien on the certificate of title register book volume 5914 folio 170.
26. Counsel for Sheppard Constructions accepted that there are several authorities that provided apparent support to the submission advanced by the Excelsior parties that once a lien ceased, it could not be resurrected. Counsel sought to distinguish these authorities on the basis that none addressed section 191(k) of the Real Property Act. These authorities are discussed later in these reasons.
27. Sheppard Constructions supported the conclusion of the Judge that section 10(2)(a) of the Worker’s Liens Act required a notice of demand to be signed personally by the lienor. It was further contended that the notice in the present proceeding had not been signed by the lienor and as a consequence, the notice was ineffective.
The Registrar-General
28. The Registrar-General submitted that a further notice of demand under section 10(2)(a) of the Act could not give effect to a lien that had ceased due to failure to institute proceedings within 14 days.
29. The Registrar-General submitted that section 12 of the Worker’s Liens Act and section 191(k) of the Real Property Act authorise an order permitting the lodgement and registration of a further notice of lien relating to the same matter as a previous notice in limited circumstances. It was submitted that on the particular facts of this case, the District Court was not empowered to make an order granting permission to lodge and register the further notice of lien as the lien had ceased to exist. The Registrar-General referred to a line of authority in support of this proposition. As mentioned earlier, these authorities will be discussed later in these reasons.
- The Registrar-General submitted in the alternative that if a lien that had ceased could be the subject of an order for amendment or substitution, the discretion to do so should not be exercised in the present case. The Registrar-General submitted that, in any event, it was open to the Court to address the issues arising through a consideration of an application under the Limitation of Actions Act 1936 (SA) for an extension of time in which to issue proceedings.
30. The Registrar-General made no submissions with respect to the Judge’s interpretation of section 10(2)(a) of the Worker’s Liens Act.
The Legislative Scheme
32.The proper construction of worker’s liens legislation is notoriously obscure.[19] The High Court has observed that the worker’s liens legislation is “generally acknowledged to raise extreme difficulties of interpretation”.[20] The Court should attempt to construe the Act to achieve the greatest harmony and the least inconsistency.[21]
33. Regard should also be had to the fact that the Worker’s Liens Act is beneficial legislation,[22] and to the principle that when the text of such legislation is susceptible to differing literal interpretations, the construction that advances the beneficial purpose should be adopted in preference to one that would frustrate or diminish the attainment of the intended benefits and reforms.[23]
34. I have extracted above the terms of sections 12 and 15 of the Worker’s Liens Act and section 191(k) of the Real Property Act. Before turning to consider the legislative scheme in any detail, it is convenient to set out further relevant provisions relied on by the parties.
35. Sheppard Constructions asserted that it performed work on the land comprised in certificate of title register book volume 5914 folio 170 with the consent of Excelsior Land Holdings and, accordingly, that by virtue of sections 5 and 6 of the Worker’s Liens Act, it has a lien for the unpaid contract price. Those sections provide:
5—Lien of contractor or sub-contractor
A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases:
(a) Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
6—Extent of lien
Liens under subsection (1) of section 4 or under section 5 shall not, in cases other than those of workers employed by the owner or occupier, extend beyond that portion of the contract price payable by the owner or occupier under the contract for the purposes of which the work or materials are done, furnished, or manufactured and unpaid at the time when the owner or occupier shall receive notice of the lien or of its registration, whichever shall first happen, nor extend at all to cases where there is no such contract binding the owner or occupier to pay a contract price.
36. The Worker’s Liens Act creates three types of liens on the estate or interest of an owner or occupier of land: the lien of a worker; the lien of a sub-contractor; and the lien of a contractor. The first type of lien is that of a worker performing work for an owner or occupier, or for a contractor or sub-contractor for the benefit of an owner or occupier.[24] The lien is for the worker’s wages in respect of the work. The second and third types of liens are those of a contractor and sub-contractor for the contract price, “so far as accrued due”.[25] The expressions “contractor” and “sub-contractor” are defined in section 2 of the Worker’s Liens Act. The “contract price” means the money payable to the contractor or sub-contractor for any work, or materials furnished or to be furnished in connection with any work under any contract, whether or nor the price has been fixed by express agreement.[26]
37. The lien of a contractor or sub-contractor arises in two circumstances. First, where the work is done to the land or any fixture thereon with the express or implied assent of the owner or occupier.[27] Secondly, subject to section 9B,[28] where the materials supplied under the contract are to be used or intended to be used, with the express or implied assent of the owner or occupier, in or about work done or intended to be done to the land or any fixture thereon.[29]
38. The lien of a contractor or sub-contractor cannot extend beyond that portion of the contract price payable[30] by the owner or occupier and unpaid at the time when the owner or occupier receives notice of the lien or of its registration.[31] Nor can the lien of a contractor or sub-contractor extend at all to cases where there is no contract binding the owner or occupier to pay a contract price.[32]
39. The lien of a contractor or sub-contractor cannot exist prior to the contract price having “accrued due” within the meaning of section 5 of the Worker’s Liens Act.[33] The contract price has “accrued due” once the relevant work has been performed or materials supplied and all contractual requirements to entitlement have been satisfied.[34] Once the contract price, or portion thereof, has “accrued due”, the lien is created,[35] albeit that it exists only in an inchoate or dormant state until such time as the contract price has “become due” and the lien is registered.[36]
40. Section 10 is relevant to the enforcement of liens, and provides:
Lien to be registered
(1) A lien under this Act with regard to land shall be available only if registered before the expiration of twenty-eight days after the wages or contract price in respect of which such lien has arisen shall for the purposes of this section have become due.
(2) Any wages or contract price shall for the purposes of this section be deemed to have become due—
(a) if unpaid for seven days after the same (being payable) shall have been demanded by notice in writing, signed by the person claiming the same and given to the person liable to pay the same, or posted in a registered letter addressed to him at his usual or last known place of abode in South Australia:
(b) if either before or after the same shall have become payable, the person liable to pay the same shall have called a meeting of his creditors, or committed an act of bankruptcy, or executed a deed of assignment within the meaning of the Bankruptcy Act 1924 of the Commonwealth, or shall have taken or attempted to take the benefit of any law relating to bankrupts or insolvent debtors, or shall have suffered his goods to be taken in execution or seized under legal process or distress for rent.
(3) A lien shall be registered by the person claiming the same lodging in the General Registry Office a notice in the prescribed form and accompanied by the prescribed fee, which notice shall be signed by such person and attested.
(4) A lien may be registered after the wages or contract price have become payable, although the seven days mentioned in subsection (2) shall not have commenced to run.
(5) Notices of lien under this Act shall state the court in which action will be brought to enforce the same, and any person to whom notice is given may deposit the amount claimed in such court to abide the event of such action, and thereupon the lien shall be deemed to cease.
41. Section 10(1) imposes two conditions precedent that must be satisfied before a lien will be “available”.[37] The expression “available” bears the connotation of the subject matter to which it is applied being “suitable or ready for use; at hand; of use or service”.[38] In the context of the Worker’s Liens Act, a lien that is “available” is one that is able to be enforced by action under the Act.[39] The conditions precedent to availability are that the wages or contract price in respect of which the lien has arisen must have “become due”, and that the lien must be registered prior to the expiry of 28 days after the wages or contract price in respect of which it has arisen have “become due”.
42. Turning to the first condition, section 10(2) governs the circumstances in which wages or a contract price can “become due” for the purposes of section 10(1).[40] Wages or a contract price, or portion thereof, become due in two circumstances. First, when a notice of demand has been issued and the wages or contract price remain unpaid for seven days.[41] For this procedure to apply, the wages or contract price must be payable prior to the issue of the notice.[42] In the case of a contract price, this means that the price has “accrued due” within the meaning of section 5 and the time for payment has arrived.[43] Secondly, when one of the circumstances specified in section 10(2)(b) applies, irrespective of whether this is before or after the wages or the contract price becomes payable.
43. The second condition precedent that must be satisfied before a lien is “available” is that the lien must be registered prior to the expiry of 28 days after the wages or contract price in respect of which it has arisen “have become due”.[44] Therefore, when a notice of demand has been issued under section 10(2)(a), the lien must be registered within 35 days after the making of the demand.[45]
44. Section 10(4) expressly recognises that a notice of lien may be registered once the wages or contract price have become “payable”, notwithstanding that they have not “become due” by the issue of a notice of demand under section 10(2)(a). However, the lien will become “available” only if one of the circumstances mentioned in section 10(2) applies. Until then, the lien cannot be enforced and does not operate as a security.[46] Registration prior to the issue of a formal notice of demand under section 10(2)(a) is provisional only, in the sense that it gives notice of the claim and protects the position of the lienor during the seven day period envisaged by that subsection.[47]
45. A lien is registered by lodging a notice of lien in the General Registry Office.[48] Registration occurs on the day on which the Registrar-General formally accepts the notice of lien for lodgement in the General Registry Office. Registration does not occur in the Lands Titles Registration Office under the Real Property Act.
46. “Registration” under section 10 of the Worker’s Liens Act has a different legal effect to registration under the Real Property Act. The registration of a lien does not create the lien, but has the effect of making the lien “available” once the wages or contract price has become due in accordance with section 10(2). Under the Real Property Act, it is the act of registration that creates or vests legal title.[49]
47. When the estate or interest of the owner or occupier sought to be affected by the lien is registered under the Real Property Act, the Registrar-General must, inter alia, make a memorandum of the notice of lien in the register book maintained under that Act.[50] A memorandum of the notice of lien is endorsed on the certificate of title for the land. If the owner or occupier’s estate or interest is not registered under the Real Property Act, no such memorandum is made.[51] Hence, no memorandum is made in the register book when the owner or occupier holds only an unregistered, equitable interest in land under the Real Property Act.
48. The duties imposed on the Registrar-General by section 11 of the Worker’s Liens Act are additional to the “registration” that takes place in the General Registry Office. Section 11 provides:
Upon the lodging of such notice the Registrar-General shall—
(a) where the estate or interest of the owner or occupier sought to be affected by the lien is registered under the Real Property Act, make a memorandum of such notice and the day and hour of the lodging thereof upon the folium of the Register Book on which such estate or interest is registered, and shall send a copy of such notice through the post addressed to the owner or occupier at his address as appearing in the Register Book;
(b) where the estate or interest of the owner or occupier sought to be affected by the lien is not registered under the Real Property Act, make a memorandum on such notice of the day and hour of the lodging thereof, and send a copy of such notice through the post addressed to the owner or occupier at his address as given in the notice.
49. As noted above, by section 12, a notice of lien lodged in respect of land under the provisions of the Real Property Act is “deemed to be a caveat forbidding the registration of any dealing with the estate or interest sought to be affected by the lien”. The lien is not an absolute caveat: it permits a subsequent dealing to be registered, provided that it is expressed to be “subject to the claim” of the person who lodged the lien.
Section 191 of the Real Property Act
50. The provisions of the Real Property Act relating to caveats apply to a notice of lien “so far as applicable and so far as consistent” with the Worker’s Liens Act.
51. The Real Property Act makes provision for several different types of caveats, each with its own incidents and effect.[52] The primary provision dealing with caveats is section 191. That section authorises the lodgement of a caveat that prevents or restricts the registration of subsequent dealings with the estate or interest of the party against whom it has been lodged. In substance, a worker’s lien operates in the same way. Accordingly, when section 12 provides that a notice of lien “shall be deemed to be a caveat”, it is to be understood and construed as referring to a caveat to which section 191 of the Real Property Act
52. The full terms of section 191 are as follows:
Any settlor of land or beneficiary claiming under a will or settlement, or any person claiming to be interested at law or in equity, whether under an agreement, or under an unregistered instrument, or otherwise howsoever in any land, may lodge a caveat with the Registrar-General forbidding the registration of any dealing with such land, either absolutely or unless such dealing shall be expressed to be subject to the claim of the caveator, or to any conditions conformable to law expressed therein:
(a) Form of caveat
a caveat shall be in the appropriate form, and shall be under the hand and verified by the declaration of the caveator or his agent, and shall contain an address within South Australia to which notices may be sent or at which proceedings may be served;
(b) Registrar-General to make memorandum of receipt
upon the receipt of a caveat the Registrar-General shall make a memorandum thereon of the date and hour of the receipt thereof, and shall enter a memorandum thereof in the Register Book, and shall forthwith send a notice of such caveat through the post office to the person against whose title such caveat shall have been lodged, directed to his address appearing in the Register Book;
(c) Not to register dealings contrary to caveat
so long as any caveat shall remain in force the Registrar-General shall not, contrary to the requirements thereof, register any dealing with the land in respect of which such caveat shall have been lodged: Provided that notwithstanding the receipt of a caveat the Registrar-General shall, subject to the other provisions of this Act, proceed with and complete the registration of any instrument affecting the said land, which instrument is produced for registration before the receipt of the caveat by the said Registrar-General;
(d) Persons interested may summon caveator
the registered proprietor or any other person claiming estate or interest in the land may, by summons, call on any caveator, including the Registrar-General, to attend before the Court to show cause why the caveat should not be removed; and the Court may, after allowing the parties a reasonable opportunity to be heard, make such order as appears just in the circumstances; (if the caveator does not appear in response to the summons, the Court may, if satisfied that the summons was duly served, proceed to hear and determine the application in the caveator’s absence);
(e) Caveatee may apply to have caveat removed
the caveatee may, except when the caveat is lodged by a settlor, or by a beneficiary under a will or settlement, or by the Registrar-General under Part 19 of this Act, make application in writing to the Registrar-General to remove the caveat, and shall in such application give an address in South Australia to which notices or proceedings relating to the caveat may be sent, and the Registrar-General shall thereupon give twenty-one days’ notice in writing to the caveator, requiring that the caveat be withdrawn;
(f) Mode of removing or discharging caveat
the Registrar-General shall, after the lapse of twenty-one days from the posting of such notice to the address mentioned in the caveat, or of such extended time as may be ordered by the Court, remove the caveat from the Register Book by entering therein a memorandum that the same is discharged;
(fa) Action to establish validity of claim
a caveator may bring an action in the Court to establish the validity of the claim on which the caveat is based;
(g) Caveator may apply to Court for order to extend time
the Court may, on the caveator’s application, extend the period of 21 days until an action under paragraph (fa) is determined or for any other period;
(h) May withdraw caveat: But Court may order payment of costs
any caveator may, by notice in writing to the Registrar-General, withdraw his caveat at any time; but the Court may, notwithstanding such withdrawal, order payment by the caveator to the caveatee or other person interested of any costs incurred by the caveatee prior to the receipt by him of notice in writing of the withdrawal of the caveat;
(i) Entry to be made
an entry shall be made by the Registrar-General in the Register Book of any order made by the Court relating to any caveat, or of the withdrawal, lapse, or removal of any caveat;
(j) Caveator, except Registrar-General, liable to make compensation
any caveator other than the Registrar-General who shall have lodged or refused or neglected to withdraw any caveat wrongfully and without reasonable cause, shall be liable to make compensation to any person who may have sustained damage thereby, and such compensation may be recovered by action: Provided that, if proceedings shall have been taken in the Court by the caveatee or other person interested, the amount of such compensation may be assessed by the Court acting in the same proceedings; or the Court may direct an action to be brought to ascertain and recover such amount;
(k) Not to lodge further caveat without permission
it shall not be lawful for any caveator other than the Registrar-General, or for anyone acting on behalf of such caveator, to lodge a further caveat relating to the same matter without the permission of the Court;
(l) Court may order costs if caveat by Registrar-General is removed by Court
where any caveat lodged by the Registrar-General shall be removed by the Court, such Court may order the costs sustained by the person at whose instance such caveat was removed to be paid out of the estate on behalf of which such caveat was entered.
53. The opening words of section 191 of the Real Property Act concerning the entitlement to lodge a caveat do not apply to the lodgement of a notice of lien. The sole source for an entitlement to lodge and register a notice of lien is section 10 of the Worker’s Liens Act.
54. Section 12 of the Worker’s Liens Act provides for the prohibitory effect of a notice of lien. It is to be accepted that the terms of section 12 generally correspond to those of section 191. However a lien permits a subsequent dealing to be registered providing it is expressed to be subject to the claim of the lienor. The effect of this provision is that a subsequent dealing will not destroy or defeat the interests of the lienor. The lien is preserved and can be enforced against the land in the hands of a transferee or other party. The incoming registered proprietor takes his or her interest subject only to such claim, if any, that the lienor can establish.[53] For example, in accordance with the terms of section 15 of the Worker’s Liens Act, if no action for the lien’s enforcement had been commenced within 14 days of its registration, the lien will have ceased. A transferee who took “subject to the claim” of the lienor will hold a title unencumbered by the lien, albeit that the notice of lien would continue to be endorsed on the certificate of title until action is taken for its removal.
55. The Court was informed that the practice of the Registrar-General following the registration of a notice of lien is to refuse to register a subsequent dealing with the lienee’s interest, unless that dealing is either expressly made “subject to” the lien or its registration without that consent is otherwise authorised.
56. The requirement imposed by section 191(a) of the Real Property Act for a caveat to be in the “appropriate form” is inconsistent with the requirement imposed by section 11(3) of the Worker’s Liens Act that a notice of lien be in the “prescribed form”.
57. The obligations imposed by section 191(b) requiring the Registrar-General to make a memorandum of the caveat and to send a notice of the caveat to the caveatee are not applicable. The requirement for the entry of a memorandum and the giving of notice is dealt with exclusively by section 11 of the Worker’s Liens Act.
58. Section 191(c) provides that the receipt of a caveat will not prevent the registration of instruments previously lodged for registration. The Court was informed that the practice of the Registrar-General is to regard the terms of section 191(c) as applying to a notice of lien. It was submitted by the Registrar-General that this practice is correct. However, it was accepted that the matter was not completely clear. Attention was drawn to sections 9 and 9A of the Worker’s Liens Act and the fact that “registration” under the Worker’s Liens Act occurs in the General Registry Office at the point in time at which the Registrar-General formally accepts the notice of lien for lodgement.
59. Sections 191(d), 191(e), 191(f), 191(fa) and 191(g) are inconsistent with the scheme of the Worker’s Liens Act and accordingly do not apply to a notice of lien. Those provisions concern the procedure by which a caveat can be removed, and permit a caveator to bring an action in the Court to establish the validity of the claim on which the caveat is based. The terms of sections 10(5), 15, 16, 17, 18, 32 and 37 of the Worker’s Liens Act address the circumstances in which a lien will cease or be discharged, or its registration cancelled. The terms of section 191(d) are in substance directly comparable to the terms of section 32 of the Worker’s Liens Act.
60. The terms of section 191(h) of the Real Property Act concerning the withdrawal of a caveat apply to enable a lienor to lodge a withdrawal of a notice of lien.
61. The terms of section 191(i) have partial application to a notice of lien, so that the Registrar-General is directed to make an entry in the register book of any order relating to a notice and the withdrawal of a notice.
62. The terms of section 191(j) of the Real Property Act are inconsistent with the Worker’s Liens Act and accordingly do not apply to a notice of lien. The section provides for the payment of compensation by a caveator in circumstances where a caveat has been lodged or continued “wrongfully and without reasonable cause”. Sections 33 and 34 of the Worker’s Liens Act deal with the situation where a lien is claimed or registered “vexatiously or without any reasonable grounds”. There is a substantial overlap between section 191(j) and sections 33 and 34.
The Appeal
63. The Judge concluded that the District Court did have power in an appropriate case to permit the lodgement of a second lien relating to the same matter. So much may be accepted. The question in the present proceeding is whether the Court has that power in circumstances where the original lien has ceased according to the terms of section 15 of the Worker’s Liens Act.
Shall Cease
64. A question to be determined on this appeal is the meaning of the words “shall cease”. The Excelsior parties contended that the words “shall cease” meant that a lien that had ceased could not be resurrected. It had ceased to exist. Sheppard Constructions contended that notwithstanding the words “shall cease”, a lien ceased only as something upon which an enforceable step could take place.
65. As mentioned earlier, the Court’s attention was drawn to a line of authorities supporting the conclusion that the words “shall cease” meant “ceased to exist”. In Palayaris v Kauri Timber,[54] Legoe J decided that the scheme of the Worker’s Liens Act imposes clear and strict limitations with respect to the time in which a lienor must act in order to obtain the benefit of its provisions. His Honour was of the view that “[t]hese strict time limits are clearly expressed in the provisions of the Act”.[55] Prior to extracting the relevant passage of Legoe J’s judgment, in Blythe Green & Jordain Pty Ltd v Sienna Pty Ltd[56] Rice J of the Northern Territory Supreme Court decided that once a lien has ceased by operation of section 15, it permanently ceases to exist. His Honour observed:[57]
To give a claimant a remedy under the Act in the form of a security for the very same amount of his claim after his first lien had ceased by operation of s 15, would, in my opinion, be tantamount to allowing him to circumvent the strictures of the Act for which no warrant to do so exists. Taken to its logical extreme, if this were the case, a claimant could effectively fetter the title to land simply by lodging, intermittently, a series of notices of lien for the identical amount without ever having commenced an action to enforce it. Clearly this was never contemplated by the Act and is repugnant to its very purpose; …
The principle identified by Rice J has been referred to and applied in subsequent decisions.[58] In my opinion, the construction advanced in this line of authority is correct. Once a lien “ceases” in accordance with the terms of section 15, that lien ceases to exist and cannot be resurrected.
66. The Judge appeared to rest his conclusion that the second lien was a valid lien on his finding that the notice of demand of 25 February 2009 was ineffective.
In Substitution
67. Earlier in these reasons, I extracted the terms of the order made by the District Court Judge. It is to be noted that the order provided that Sheppard Constructions have leave to “lodge or register” a further lien “in substitution” of the lien number 11353641 and directed that the Registrar-General register the further lien. An order in these terms was beyond the power of the District Court Judge.
68. There is nothing in the express terms of section 191(k) of the Real Property Act or section 12 of the Worker’s Liens Act that confers a power to make an order of substitution. The Registrar-General pointed out what were said to be the startling effects were such a power to exist. The Registrar-General instanced a situation where a further notice of lien was lodged many months after the original notice of lien which may have been removed or withdrawn in the interim. A substitution would give the same priority as the earlier notice of lien to the further notice of lien. This would work a substantial prejudice to any number of persons who may have searched the title in the meantime and ordered their affairs and dealings on the basis that no notice of lien was extant. A further example was provided where a party may have searched the relevant court registry in which an action of enforcement may have been taken and ascertained that no such action had been taken. That party would form the view that the lien had ceased, ordered its affairs accordingly and enter into a dealing with the land.
69. Counsel for Sheppard Constructions drew the Court’s attention to section 64 of the Real Property Act, which provides:
In any proceeding in the Court respecting any land, or any transaction, contract, or application relating thereto, or any instrument, caveat, memorial, or other entry affecting any such land, it shall be lawful for the Court to direct the Registrar-General to cancel, correct, record, substitute, issue, or make any certificate, or any memorial or entry in the Register Book, notwithstanding that the relevant duplicate certificate has not been produced to him, or otherwise to do such acts and make such entries as may be necessary to give effect to any judgment, decree, or order of such Court given or made in such proceeding, and the Registrar-General shall obey every such direction.
Counsel suggested that this section provides a power to substitute.
70. Difficulties confront this submission. It is important to recall that in accordance with the terms of sections 4 and 5 of the Worker’s Liens Act, a lien is created in accordance with those sections. It is this pre-existing lien that is registered through a notice of lien. As discussed above, in the absence of enforcement proceedings issued within the strict time provided by the Worker’s Liens Act, the lien ceases to exist. It is difficult to conceive how there could be the substitution of a further lien for a lien that has ceased to exist.
71. It is to be accepted that the proper construction of an order that contains ambiguity is resolved by the usual process of construction, having regard to such extrinsic material as is relevant. In the case of the District Court Judge’s order, that material includes the reasons for judgment, the pleadings and the submissions of the parties. There is nothing in any of the extrinsic material to suggest that the Judge was purporting to exercise a power conferred by section 64 of the Real Property Act. The Judge’s reasons only addressed section 64 in the context of allowing an amendment. It is tolerably clear from these reasons that the Judge was purporting to exercise power under section 191(k) of the Real Property Act, not section 64. So understood, the words appearing in the order “in substitution” may be taken to be a reference to a correctly drafted notice of lien replacing another notice of lien. It is clear that the further notice of lien was not intended to be lodged in respect of the identical land or to be for the identical sum. Further, it does not appear that the orders intended to authorise or require the further notice of lien to bear the identical registration date.
Amendment
72. Sheppard Constructions sought, by interlocutory application, inter alia, permission to amend the original notice of lien. However, the lien had ceased at midnight on 23 March 2011 by the operation of section 15 of the Worker’s Liens Act. A power to amend could be sourced in section 32, and possibly section 37, of the Worker’s Liens Act.[59] In the present proceeding, no reliance was placed on these provisions. In any event, those sections do not authorise the amendment in respect of a lien that has ceased to exist. The same may be said of any power arising under section 64 of the Real Property Act. For reasons discussed above, the terms of sections 191(d) and 191(g) of the Real Property Act have no application to a notice of lien. In the present proceeding, there was no power to amend the original notice of lien. The lien had ceased to exist.
Further Issues
73. The following matters remain for consideration. Did the District Court Judge, in the circumstances of the present proceeding, have any power to act under section 191(k). If the District Court Judge did have power, should the power be exercised in the present proceeding. In the particular circumstances of the within proceeding, should the Court extend the time for the issue of enforcement proceedings. Finally, the alternative question addressed by the Judge of this Court that the original letter of demand of 25 February 2010 was ineffective, arises for consideration. The specific question to be determined is whether the letter of demand said to support the first notice of lien was a valid notice for the purposes of section 10(2)(a) of the Worker’s Liens Act.
Section 191(k)
74. It is to be recalled that section 12 of the Worker’s Liens Act provides that a notice of lien should be deemed to be a caveat and that the provisions of the Real Property Act relating to caveats shall, so far as applicable and so far as consistent with the Worker’s Liens Act, apply to every such notice of lien. Accordingly, section 191(k) has application to a notice of lien subject to the qualifications of applicability and consistency.
75. The District Court Judge purported to exercise powers under section 191(k) of the Real Property Act when making his order. His reasons do not disclose any consideration being given to the effect of section 15 of the Worker’s Liens Act and in particular, the issue of whether the power under section 191(k) could be exercised when the lien had ceased.
76. The Judge of this Court addressed the issue in the following terms:[60]
Accordingly I proceed on the basis that in a case of the present kind a lien under the [Worker’s Liens Act] comes into existence in the circumstances specified in ss 5 and 6 but is enforceable only if it has been registered at the [Lands Titles Office] in accordance with s 10, and an action to enforce the lien commenced within 14 days of that registration (s 15).
As a lien is enforceable only if registered within 35 days of the contract price becoming due in the manner contemplated by s 10(1) and (2), there would be no point to the lodgement of a second notice of lien in respect of the same contract price more than 35 days after that price did become due. Such a lien could not be enforced and would immediately have to be withdrawn or removed.
This means that if s 191(k) of the [Real Property Act] does permit a court to authorise a second lien being lodged, that power may, in a practical sense, be able to be exercised in only a limited range of circumstances. However, the fact that the circumstances in which the power may be exercised may be limited does not, of itself, deny the existence of the power. It is not difficult to imagine at least some circumstances in which an exercise of the power may be appropriate, eg, when a properly lodged lien is (within the 35 day period) withdrawn as a result of mistake or fraud, or when the lien suffers from some underlying defect which the lienee, within the period of 35 days, seeks to have corrected.
I cannot discern any other consideration arising from the nature of a lien, or from the circumstances in which a lien arises, which would require s 191(k) of the [Real Property Act] to be construed as not applying to liens. Courts should not readily find any such restriction to exist. I refer in this respect to the observation of Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation:
As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision.
Accordingly I am satisfied that the District Court does have power in an appropriate case to permit the lodgement of a second lien “relating to the same matter”.
[Footnotes omitted.]
77. The thrust of these reasons appears to be that the power to permit a further lien exists but would not be exercised if the original lien had ceased on the basis that there would be no utility as the further lien would not have been issued in accordance with the requirements of section 15 of the Worker’s Liens Act. This analysis would not appear to have given full consideration to the terms of section 15 and in particular, that the original lien in the present proceeding had ceased.
78. There is nothing inherent in the nature of a lien that necessarily precludes the operation of section 191(k). The principle that a provision conferring jurisdiction or power upon a court should not be read down by the making of implications or the imposition of limitations not found in express words of the statute has application. However, it is necessary to consider the qualifications of applicability and consistency appearing in section 12 of the Worker’s Liens Act. Accordingly, it may be concluded that section 191(k) provides a power for the court to grant permission to lodge a further notice of lien in the same matter as an original valid notice, providing those proceedings had commenced prior to the expiry of 28 days from the wages or contract price having “become due” within the meaning of section 10. It follows that in the circumstances of the within proceeding, section 191(k) did not provide the District Court Judge with power to act as he did. For reasons discussed above, the original lien had ceased.
79. In the circumstances of the present proceeding, an order could only be made under section 191(k) if the Court also extended the period in which an action for the enforcement of the original lien could be commenced. Such an order could be made in the exercise of the Court’s discretion under section 48(1) of the Limitation of Actions Act. In the present proceeding no such order extending time has been made thus far. However, Sheppard Constructions in the alternative has sought an extension of time. If the view were to be taken that the District Court Judge and the Judge of this Court on appeal had erred, it would be open to this Court to extend time and to then exercise its powers under section 191(k) to grant permission for the lodging of a further notice of lien. I will return to the question of an extension later in these reasons.
Section 10(2)(a) of the Worker’s Liens Act
80. The Judge under appeal took the view that the notice of demand of 25 February 2010, which formed the basis for the registration of the original notice of lien, was not an effective notice of demand for the purposes of section 10(2)(a) of the Worker’s Liens Act as it had not been signed or executed by Sheppard Constructions. As a consequence, in the Judge’s view, the 35 day period contemplated by sections 10(1) and 10(2) had not run. The Judge then reasoned that the further notice of demand sent by Sheppard Constructions to Excelsior Land Holdings and Excelsior Land Management on 29 March 2010 was an effective notice of demand and that accordingly, there could be a grant of permission for the lodgement of the further notice of lien.
81. The Judge in this respect reasoned:[61]
On its face, s 10(2)(a) requires the notice of demand to which it refers to be signed by the person claiming the unpaid wages or contract price. There is, however, the well established common law principle that, in the absence of an express or implied indication to the contrary, legislation requiring the “signature” of a document by a particular person is not to be taken to preclude signature by an agent. See for example McRae v Coulton;[62] Deputy Commissioner of Taxation (Vic) v Boxshall[63] Vincent v Johnstone Shire Council;[64] and Commonwealth Bank of Australia v Muirhead.[65]
In my opinion, the [Worker’s Liens Act] does indicate sufficiently that the personal signature of the lienee is required on a notice of demand under s 10(2)(a). In the case of an incorporated body, that entity must execute the notice of demand in the manner contemplated by s 127 of the Corporations Act or in any other manner contemplated by its constitution.
The indications that s 10(2)(a) requires the personal signature of the lienee are these. First, as already noted, s 10 is in the nature of a code of the necessary matters for the enforceability of a lien. Each of its provisions should be given effect as elements of the code.
Secondly, the delivery of a demand is an important element in the code for the enforcement of the lien under ss 5 and 6 and in the identification of the amount of the contract price to which the lien can relate. That suggests that a degree of formality is to be expected.
Thirdly, s 10(2)(a) does not, as do some statutory provisions,[66] contemplate signature by a lienee or the lienee’s agent or solicitor. If the legislature had intended that signature by an agent would be sufficient, it could easily have said so.
Fourthly, s 10(3) of the [Worker’s Liens Act] requires the notice of lien to be registered at the [Lands Titles Office] to be both signed and attested by the lienee. The more formal requirement for attestation is understandable because the notice is a formal document to be registered at the [Lands Titles Office]. However, in combination, the requirement for signature in s 10(2)(a) and for signature and attestation in s 10(3) serve to indicate the requirement in the [Worker’s Liens Act] for proper authentication of the documents relating to the enforcement of liens on land.
Fifthly, the requirement for the signature of the lienee in s 10(2)(a) in relation to liens on land contrasts with the provisions in the [Worker’s Liens Act] concerning the enforcement of liens on goods. Section 19, which specifies the way in which a notice of demand in relation to a lien over goods should be given, does not contain any requirement for signature. This serves to underline the requirement in s 10(20(a) that it be the lienee’s own signature.
82. Earlier in these reasons, the terms of section 10(2) have been extracted. This subsection requires that a “contract price shall for the purposes of this section be deemed to have become due … if unpaid for seven days after the same (being payable) shall have been demanded by notice in writing, signed by the person claiming the same”.[67] It is to be noted that this is a deeming section. Further, there is no suggestion that the person signing the claim cannot do so by an authorised agent. In the present proceeding, the notice of demand of 25 February 2010 was made in writing by the solicitors acting for Sheppard Constructions.
83. With respect to the Judge under appeal, I do not consider that section 10(2) mandates that Sheppard Construction was to sign the notice of demand itself. To my mind, there is no reason why it could not be signed by a duly authorised agent. It is a ready inference to be drawn from the terms of the notice of demand and from later events that the solicitors were the duly authorised agent of Sheppard Constructions with respect to the signing of the notice of demand and in all of the subsequent steps taken by them.
84. There is ample authority that a requirement that a document be signed by a person permits the signing by a duly authorised agent.[68] As Romer LJ in London County Council v Vitamins Ltd observed:[69]
It is established, in my judgment, as a general proposition that at common law a person sufficiently “signs” a document if it is signed in his name and with his authority by somebody else; and in such case the agent’s signature is treated as being that of his principal.
These authorities have been approved and applied in the Australian courts. One example may be found in Grahame v Commissioner for Railways, where Jordan CJ, with whom Street J concurred, made the following pertinent remarks:[70]
It was lastly submitted that the special contract did not protect the defendant, because it was not signed by Mrs. Grahame or by the carrier who delivered the sewing machine for carriage as required by clause (c) of s. 9. It was contended that such a contract must be signed personally by the party or personally by whoever delivers the goods. It is frequently provided by statute that a document, to be effective, must be signed by a particular person. Prima facie, such a provision does not exclude the common law rule, Qui facit per alium facit per se, and, if the person authorises another to sign on his behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority : Reg. v. Justices of Kent ; In re Whitley Partners Ltd. ; Halligan v. Mitchell. …
[Footnotes omitted.]
85. In the same decision, Davison J observed:[71]
The general rule is that, in the absence of some different construction to be gathered from the language of a statute, the signature of a person is his own if made for him by his authorised agent : Reg. v. Justices of Kent ; France v. Dutton. In order to establish a departure from this rule, so that an act, required by statute to be performed, is to be exercised personally and not by an agent on his behalf, something must be found either by way of express enactment or necessary implication which limits the right of any person sui juris to appoint an agent to act for him. And a signature in the principal’s name may be validly his, although the agent’s name is not added : In re Whitley Partners Ltd. ; Jackson & Co. v. Napper. …
[Emphasis added. Footnotes omitted.]
86. Another example may be found in the judgment of the New South Wales Court of Appeal in McCrae v Coulton,[72] where Hope JA, with the concurrence of Kirby P and McHugh JA, concluded that there was nothing in the particular Act or Regulations in question which prevented application of the principle that a signature of an agent made pursuant to authority is equivalent to the signature of the person giving the authority and that it is not necessary for the agent to sign the name of the applicant first.
87. The Judge in his reasons, as earlier extracted, recognised the general principle referred to in these authorities. His Honour, however, took the view that as a matter of construction, section 10(2)(a) mandated that the personal signature had to be that of the lienee. Five reasons were identified to support this view. First, that section 10 is in the nature of a code. The second reason was that the obligation to deliver a demand suggested an expectation of a degree of formality. To my mind, these two considerations are entirely equivocal. There is nothing informal about the signature being by an authorised agent as distinct from the lienee in person. What is in issue is the interpretation of a provision to be found in a statute that is described as being a code. The third reason identified by the Judge was that had the legislature intended to do so, it could have provided that the signature could be by the lienee’s agent or solicitor. Again, to my mind, this is equivocal. The earlier referred to line of authority from time to time addressed statutes that did not contain such further words. The view could be taken that Parliament, in enacting section 10(2)(a), was aware of the approach of the common law and enacted the legislation in accordance with the common law.
88. The fourth reason referred to the fact that a notice of lien lodged for registration had to be both signed and attested to by the lienee. This circumstance, the Judge suggested, indicated a requirement for proper authentication of documents relating to the enforcement of liens on land. This may be accepted. However, it does not exclude the authentication of a notice of demand by a duly authorised agent. It is significant that a notice of lien lodged for registration must be in the prescribed form. There is no prescribed form in respect of a notice of demand. These circumstances confirm the continuation of the earlier referred to common law rule.
89. The final reason identified by the Judge drew on the difference in wording between section 10(2)(a) relating to liens on land and section 19 relating to a notice of demand to be given with respect to goods. As the Judge points out, section 19 does not require signature.[73] Again, to my mind, this comparison does not address the manner in which a notice of demand under section 10(2)(a) is to be signed. The question is not that the notice of demand must be signed, but whether it may be signed by an authorised agent.
90. In my view, there are compelling reasons to reach the conclusion that the general common law rule applies.
91. There is nothing in the wording of section 10(2)(a) by way of express enactment or by necessary implication which limits the right of any person sui juris to appoint an agent to act on behalf of that person.
92. When consideration is given to the breadth of commercial and other activities addressed by the Worker’s Liens Act, it is difficult to understand why one would read down the legislation in the way suggested by the Judge under appeal. In the case of a partnership, would every partner have to sign the notice of demand. In the case of an overseas corporation, could it not sign the notice of demand through an authorised agent. Other examples are abound. The Worker’s Liens Act is designed to provide a protection to a class of persons. The scheme of the Act would appear to accord with an acceptance of the common law rule permitting a document to be signed by an authorised agent.
93. The conduct on the part of Sheppard Constructions confirms that it treated the notice of demand as having been given by its duly authorised agent. On 9 March 2010, it lodged for registration the original notice of lien. That notice of lien detailed the amount claimed by the lienor in the same amount as in the notice of demand of 25 February 2010. Sheppard Constructions in its first statement of claim pleaded “[b]y notice dated 25 February 2010” that the plaintiff served a demand in the form prescribed by the Worker’s Liens Act on Excelsior Land Management for monies due and payable by that defendant. Relief was sought based on the effectiveness of the notice. A solicitor acting for Sheppard Constructions deposed that on 25 February 2010, Sheppard Constructions by its solicitors served a notice of demand on Excelsior Land Management.
94. I consider that in the above circumstances, Sheppard Constructions did give a notice of demand through its authorised agent. There is nothing in the terms of section 10(2) of the Worker’s Liens Act that would preclude Sheppard Constructions from giving notice through an authorised agent. Sheppard Constructions then conducted its affairs on the basis that a valid notice of demand had been given and took steps to have the notice of lien lodged and registered on the earlier referred to titles. Thereafter, Sheppard Constructions pleaded in its first statement of claim in the District Court proceedings that the notice of demand given by its authorised agent was a valid notice of demand for the purposes of the lodging and registration of the notice of lien. No point was raised before the District Court Judge that the notice of demand was not effective because it had not been signed or executed by Sheppard Constructions.
95. The Judge under appeal made reference to section 127 of the Corporations Act 2001 (Cth). That section provides in permissive terms for the manner in which a corporation may sign or execute a document. The section does not mandate the manner of signature or execution. Nothing in section 127 precludes a company from giving a notice by its duly authorised agent, its solicitor.
96. As noted above, the Judge considered that the purported notice of demand was ineffective as it had not been signed personally by Sheppard Constructions. On the strength of the notice of demand, Sheppard Constructions lodged and registered the original notice of lien and later issued and served court proceedings in which Sheppard Constructions asserted the validity of the notice of demand and of the original notice of lien. The effect of such an approach would be to allow Sheppard Constructions to gain a benefit as a consequence of its own non-compliance with statutory requirements.
97. For these reasons, the notice of demand given by the solicitor for Sheppard Constructions was a valid notice of demand and effective to meet the requirements for the lodging and registration of the original notice of lien.
Extension of Time
98. It is now convenient to turn to the application of Sheppard Constructions for an extension of time in which to commence proceedings to enforce the original notice of lien and then to have this Court exercise its powers under section 191(k) to permit the lodging and registration of a further lien.
99. This application was not addressed either by the District Court Judge or by the Judge of this Court. Their approach to the resolution of the proceedings did not require a consideration of this issue. The application was briefly addressed before the Full Court.
100. Sheppard Constructions submitted that the justice of the case fully justified the grant of an extension of time. Attention was drawn to the observations of the District Court Judge and the following endorsement of those observations by the Judge of this Court:[74]
The Judge considered that the justice of the present case favoured the grant of permission. He accepted that Sheppard Constructions’ solicitors had not commenced proceedings to enforce the first lien because of the deficiencies which they perceived in it; that the lodgement of the second lien was necessary to rectify the position; that Sheppard Constructions had acted promptly and would be prejudiced by the loss of security if the second lien was not authorised; and the appellants had not demonstrated any prejudice to them, over and above the inconvenience of Title One continuing to be subject to a lien.
I agree with the Judge’s assessment of those matters.
101. It was accepted that these observations related to the granting of permission pursuant to section 191(k) of the Real Property Act. However, it was submitted that the findings of the Judge could be equally applied to the application to extend time under the Limitation of Actions Act. It was pointed out that the Excelsior parties had not challenged any of these findings.
102. The Excelsior parties opposed the grant of an extension of time. However, they did so only on the ground that it was not possible to extend time in circumstances where the lien had ceased to exist.
103. Section 48 of the Limitation of Actions Act relevantly provides:
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that—
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not—
…
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i) that facts material to the plaintiff’s case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii) that the plaintiff’s failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances,
and that in all the circumstances of the case it is just to grant the extension of time.
(3a) A fact is not to be regarded as material to the plaintiff’s case for the purposes of subsection (3)(b)(i) unless—
(a) it forms an essential element of the plaintiff’s cause of action; or
…
(3b) In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—
(a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c) the nature and extent of the plaintiff’s loss and the conduct of the parties generally; and
(d) any other relevant factor.
(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
104. For the purposes of this proceeding, section 48 operates when an Act prescribes the time for doing any act, or taking any step in an action. Section 15 of the Worker’s Liens Act is an Act which provides that an action must be brought within 14 days of registration. After this time the action “shall cease”. Section 15 fits squarely within the requirements of section 48 of the Limitation of Actions Act.
105. The wording of the Limitation of Actions Act avoids any conceptual difficulty that might otherwise arise from the revival of a ceased action as it is expressed to apply broadly to all legislation “prescribing” the time within which a step in an action may be performed. Notably, section 48 is not limited to merely extending time in relation to legislation which “bars” or “limits” an action by lapse of time. It would appear that the section was designed to extend to legislation, such as the Worker’s Liens Act. The qualifications appearing in section 48(3)(b) have no application to the present proceeding because the 14 day limitation period is imposed by the Worker’s Liens Act rather than the Limitation of Actions Act.
106. In the present proceeding, Sheppard Constructions acted promptly to seek to remedy the problems with the original notice of lien. Errors had been made. Sheppard Constructions wished to correct those errors both in limiting the amount of claim and in the identification of the property over which its notice of lien was sought to be registered. The Worker’s Liens Act provided a very short time limit and, on any view, Sheppard Constructions proceeded with appropriate expedition. The lodging of a further notice of lien was necessary to protect Sheppard Constructions’ claim and in particular, matters relevant to its cause of action. Without the protection of the registered notice of lien, Sheppard Constructions’ priority position would be affected. As both the District Court Judge and the Judge of this Court concluded, the Excelsior parties had not demonstrated any prejudice that would flow from a grant of permission under section 191(k). Further, the Excelsior parties have not demonstrated any relevant prejudice that would flow from a grant of an extension of time. In my view, it is appropriate to grant an extension as the justice of the case so requires.
Conclusion
107. I would order that Sheppard Constructions be granted an extension of time for the issue of enforcement proceedings and that permission be granted under section 191(k) of the Real Property Act for the lodging of a further notice of lien reflecting the monetary claim now pursued in respect of the relevant land identified by an appropriate certificate of title reference.
108. I would hear the parties as to costs and as to the terms of the order to be made.
David J:
For the reasons given by Gray J, I would allow the appeal. I also agree with the orders he proposes.
Stanley J:
110. I have had the advantage of reading the reasons of Gray J. I agree with his Honour’s reasons and the orders he proposes.
111. At issue in this appeal is whether a lienor is entitled to serve another notice under s 10(2)(a) of the Worker’s Liens Act 1893 (SA) (“the Act”) where the lienor has failed to register the lien before the expiration of the 28-day period prescribed by s 10(1) of the Act.
112. There is a long line of authority against this proposition.
113. In Blythe Green & Jordain v Sienna Pty Ltd[75] Rice J said in relation to the provisions of the South Australian Act[76] that the Act’s clear intention is to enable the creation of one statutory lien only, limited in its scope and effect to securing the amount due to the lienor from time to time during the lifetime of that particular lien; and, once extinguished by the operation of s 15, it is incapable of resurrection. Once a lien under the Act “ceases” by force of the Act, its rebirth is impossible. His Honour said:[77]
To give a claimant a remedy under the Act in the form of a security for the very same amount of his claim after his first lien had ceased by operation of s 15, would, in my opinion, be tantamount to allowing him to circumvent the strictures of the Act for which no warrant to do so exists. Taken to its logical extreme, if this were the case, a claimant could effectively fetter the title to land simply by lodging, intermittently, a series of notices of lien for the identical amount without ever having commenced an action to enforce it. Clearly this was never contemplated by the Act and is repugnant to its very purpose…
114. This analysis has subsequently been followed in Advanced Civil Engineering v Wyara;[78] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[79] and Ambir v Paspalis Hotel Investments Pty Ltd.[80]
115. It is unfortunate that this line of authorities was not brought to the attention of the trial judge and, more particularly, the learned judge on appeal.
116. The respondent sought to distinguish this line of authority on two bases. First, on the basis that the cases do not deal with the argument founded on s 191(k) of the Real Property Act 1889 (SA). Secondly, on the basis that these cases were decided prior to this Court’s decisions in Marriott Industries Pty Ltd v Mercantile Credits Ltd[81] and Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd[82] which held that s 10(2) of the Act constitutes an exclusive code governing the circumstances in which wages or a contract price can “become due” for the purposes of s 10(1) of the Act, rendering the lien enforceable. This occurs when work has been done or materials supplied and all conditions precedent to the contractor’s entitlement to the monies claimed have been satisfied.
117. I do not accept this submission.
118. First, if a lien ceases in accordance with the terms of s 15 of the Act, it cannot be resurrected. As a consequence, powers to amend, substitute or issue a further lien, as found in s 191(k) are not available to be exercised once the lien has ceased, unless an order has been made extending the time within which an action for enforcement can be commenced. Secondly, Ambir Pty Ltd v Paspalis Hotel Investments Pty Ltd[83] was not only decided after Marriott and Longreef but also after the Full Court of the Supreme Court of the Northern Territory’s judgment in Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd[84] which followed Marriott and Longreef. While I note that Martin CJ in Ambir does not refer expressly to Jovista or Marriott or Longreef, his Honour was part of the coram in Jovista and, I am prepared to accept, decided Ambir in light of the Full Court’s earlier decision in
119. For the reasons given by Gray J, I agree that the solicitor’s letter of demand of 25 February 2010 was a valid notice for the purpose of s 10(2)(a) of the Act. I also agree that an extension of time pursuant to s 48 of the Limitation of Actions Act 1936 (SA) should be granted to extend the time stipulated by s 15 of the Act for the issue of enforcement proceedings. This enlivens the exercise of the court’s power pursuant to s 191(k) of the Real Property Act 1886 (SA).
[1] the terms of which appear from paragraph 52 of the judgment below
[2] see paragraphs 83 and 91 of the judgment.
[3] see paragraph 59 of the judgement.
[4] see paragraph 68 of the judgement.
[5] see paragraph 72 of the judgement.
[6] see paragraph 79 of the judgement.
[7] see paragraph 105 of the judgment
[8] see paragraph 107 of the judgement.
[9] [1988] NTSC 66 at page 360 above
[10] [2010] SASC 25
[11] See paragraph 7 of the judgment.
[12] See page 217 above, and particularly paragraph 23 of the judgment at page 276.
[13] The lack of reference to the point is all the more bizarre for the fact that Ambir was referred to, with apparent approval, on the cessation point.
[14] Where convenient the defendants are referred to as the “Excelsior parties”.
[15] In these reasons, when convenient, this notice of lien is described as the original notice of lien.
[16] Thomson Reuters, Jessup’s Lands Titles Office Forms and Practice, vol 2 (Service 105) [2358.3].
[17] Excelsior Land Holdings Pty Ltd & Ors v Alan Sheppard Constructions Pty Ltd [2011] SASC 25, [53]-[56].
[18] Cf Director of Public Prosecutions v George [2008] SASC 33 at [250]-[251]; (2008) 102 SASR 246 at 296-7; Tedesco v Director of Public Prosecutions [2010] SASC 336 at [14].
[19] A collection of several of the judicial comments to this effect can be found in Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd and Others (1999) 151 FLR 242, [42] (Kearney J).
[20] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 12 Leg Rep, SL2, (Brennan, Deane and Toohey JJ). Special leave to appeal was refused.
[21] Australian Alliance Assurance Co Ltd v Attorney-General for Queensland and Others [1916] St R Qd 135, 161 (Cooper CJ), cited in Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd and Others (1999) 151 FLR 242, [55] (Kearney J, with Martin CJ, Mildren, Thomas and Bailey JJ agreeing, [1], [67], [73], [74], respectively).
[22] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 292 (King CJ).
[23] Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285, [3] (Kirby J); D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths Australia, 7th ed, 2011) [9.4].
[24] Worker’s Liens Act 1893 (SA) section 4.
[25] Worker’s Liens Act 1893 (SA) section 5.
[26] Worker’s Liens Act 1893 (SA) section 2.
[27] Worker’s Liens Act 1893 (SA) section 5(a).
[28] Section 9B of the Worker’s Liens Act 1893 (SA) provides:
Liens shall be had under this Act for materials furnished, although such materials may not be furnished in connection with work.
[29] Worker’s Liens Act 1893 (SA) section 5(b).
[30] As to the meaning of “payable” in Worker’s Liens Act 1893 (SA) section 6, see Metropolitan Brick Company v Hayward and Another [1938] SASR 462, 466 (Napier J); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 273 (King CJ), 286 (Olsson J with Mohr J agreeing at 287); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502, [47]-[48], [55]-[58], [95]-[96], [130].
[31] Worker’s Liens Act 1893 (SA) section 6.
[32] Worker’s Liens Act 1893 (SA) section 6.
[33] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 310 (Olsson J, with Mohr J agreeing, 317); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 274 (King CJ), 286 (Olsson J, Mohr J agreeing, 287); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502, [62], [130].
[34] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 292 (King CJ); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 272 (King CJ); Ginos & Associates Ltd v Accordent Pty Ltd & Another (1998) 201 LSJS 60, 64-5 (Lander J, with Prior and Wicks JJ agreeing, 60, 75, respectively); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502, [46], [130].
[35] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 292 (King CJ), 310 (Olsson J with Mohr J agreeing, 317); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 276 (King CJ); Ginos & Associates Ltd v Accordent Pty Ltd & Another (1998) 201 LSJS 60, 64-5 (Lander J, with Prior and Wicks JJ agreeing, 60, 75, respectively); Albert Del Fabbro Pty Ltd v Wilckens & Burnside Pty Ltd (Receiver and Manager Appointed) & Another [1971] SASR 121, 137-138 (Zelling J); Albert Del Fabro Pty Ltd v Wilckens & Burnside Pty Ltd (Receiver and Manager Appointed) & Another [1970] SASR 277, 284 (Bright J).
[36] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 293 (King CJ); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 276 (King CJ).
[37] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 293 (King CJ); Giles v Jacob (Unreported, Full Court of the Supreme Court of South Australia, Way CJ, 3 December 1909), as described in Pitt Ltd & Others v The Corporation of the Town of Glenelg & Another [1927] SASR 501, 534-5.
[38] Available (2012) Macquarie Dictionary Online < http://www.macquariedictionary.com.au/ > at 2 July 2012.
[39] Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 276 (King CJ); cited with approval in Ginos & Associates Ltd v Accordent Pty Ltd & Another (1998) 201 LSJS 60, 64-5 (Lander J, with Prior and Wicks JJ agreeing, 60, 75, respectively); Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 310 (Olsson J, with Mohr J agreeing, 317), 292 (King CJ).
[40] Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 276 (King CJ), 281 (Olsson J with Mohr J agreeing, 287); cited with approval in Ginos & Associates Ltd v Accordent Pty Ltd & Another (1998) 201 LSJS 60, 64-5 (Lander J, with Prior and Wicks JJ agreeing, 60, 75, respectively); Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 293-294 (King CJ); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502, [60]-[61], [95]-[97], [130]; Miller’s Lime Ltd v Royal Agricultural & Horticultural Society of South Australia & Others [1936] SASR 306, 314 (Murray CJ).
[41] Worker’s Liens Act 1893 (SA) section 10(2)(b).
[42] Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 275-276 (King CJ); cited with approval in Ginos & Associates Ltd v Accordent Pty Ltd & Another (1998) 201 LSJS 60, 64-5 (Lander J, with Prior and Wicks JJ agreeing, 60, 75, respectively); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502, [50], [130].
[43] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 293 (King CJ); Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 275 (King CJ).
[44] Worker’s Liens Act 1893 (SA) section 10(1).
[45] Worker’s Liens Act 1893 (SA) sections 10(1), 10(2)(a).
[46] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 293 (King CJ). The report in the LSJS omits the words “does not operate as a security”. They appear in the CaseBase version of the judgment BC9100428 at 10, and in the Austlii version. The discrepancy is probably attributable to the fact that the early reports in the Law Society Judgment Scheme were produced using copy typing. See also Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991) 160 LSJS 270, 276 (King CJ).
[47] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288, 310 (Olsson J with Mohr J agreeing, 317).
[48] Worker’s Liens Act 1893 (SA) sections 10(3), 13.
[49] Real Property Act 1886 (SA) sections 57, 67. See also Breskvar v Wall (1971) 126 CLR 376, 384 (Barwick CJ); Gazzo v Comptroller of Stamps (Victoria) (1981) 149 CLR 227, 274-5 (Aickin J).
[50] Worker’s Liens Act 1893 (SA) section 11(a).
[51] Worker’s Liens Act 1893 (SA) section 11(b).
[52] See for example, Real Property Act 1886 (SA) sections 39, 80F, 220(g), 223D.
[53] Epic Feast Ltd v Mawson KLM Holdings Pty Ltd (In liq) & Another (1998) 71 SASR 161, 162-163 (Debelle J, with Matheson and Prior JJ agreeing, 162); Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407, 420-421 (Mason CJ, Dawson and McHugh JJ).
[54] Palyaris Constructions Pty Ltd v Kauri Timber Co Ltd (1980) 24 SASR 41.
[55] Palyaris Constructions Pty Ltd v Kauri Timber Co Ltd (1980) 24 SASR 41, 53.
[56] Blythe Green & Jordain Pty Ltd v Sienna Pty Ltd (1986) 82 FLR 291.
[57] Blythe Green & Jordain Pty Ltd v Sienna Pty Ltd (1986) 82 FLR 291, 296.
[58] See for example, Ambir Pty Ltd v Paspalis Hotel Investments Pty Ltd [2003] NTSC 22.
[59] Section 32 of the Worker’s Liens Act 1893 (SA) provides:
Any person alleging that he is prejudicially affected by a claim, lien, or charge, or by registration under this Act, may at any time apply to the court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be deemed just.
Section 37 of the Worker’s Liens Act 1983 (SA) provides:
The costs of all proceedings shall be in the discretion of the court in which such proceedings are taken, which may also make such order as it shall deem just in reference to proceedings preliminary to action in relation to the registration or discharge of liens and the giving of notices and otherwise, but, unless a court having jurisdiction in the matter shall for good cause otherwise order, any owner or occupier may charge upon and deduct from any contract price payable by him, as specified in section 6, his reasonable cost of obtaining the discharge of any lien and the making of a memorandum by the Registrar-General that any lien has ceased.
[60] Excelsior Land Holdings Pty Ltd & Ors v Alan Sheppard Constructions Pty Ltd [2011] SASC 25, [36]-[39].
[61] Excelsior Land Holdings Pty Ltd & Ors v Alan Sheppard Constructions Pty Ltd [2011] SASC 25, [45]-[51].
[62] (1986) 7 NSWLR 644 at 663-4.
[63] (1988) 19 FCR 435 at 438.
[64] [1997] 1 Qd R 554 at 556-7.
[65] [1997] 1 Qd R 567 at 572.
[66] See for example, Law of Property Act 1936 (SA) s 29; Limitation of Actions Act 1936 (SA) s 33; Landlord and Tenant Act 1936 (SA) s 22.
[67] Worker’s Liens Act 1893 (SA) section 10(2).
[68] See for example, R v Justices of Kent [1873] LR 8 QB 305; In re Whitley Partners Ltd [1886] 32 Ch D 337; Wilson & Sons v Pike [1949] 1 KB 176; Leeman v Stocks [1951] Ch 941; Basma v Weekes [1950] 1 AC 441.
[69] London County Council v Vitamins Ltd [1955] 2 QB 218, 223-4.
[70] Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430, 435.
[71] Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430, 438.
[72] McRae & Others v Coulton & Others (1986) 7 NSWLR 644.
[73] Section 19 of the Worker’s Liens Act 1893 (SA) provides:
(1) Any person entitled to a lien under section 4 subsection (2) hereof may give to the owner or occupier, his manager, or overseer, or leave for him at his residence or place of business, or may send to him by registered letter to his last known address, a notice in writing, demanding payment of the wages due to him, and stating the amount thereof and the nature of the claim; and from the giving or leaving of such notice such goods shall not be removed by the owner or occupier, or any person on his behalf, from the land until the wages of such person, to the extent of his lien, have been paid, or an agreement permitting the removal of the goods shall have been made.
(2) Every such person shall, within fourteen days after giving or leaving such notice, commence an action to enforce his lien, otherwise such lien shall cease.
[74] Excelsior Land Holdings Pty Ltd & Ors v Alan Sheppard Constructions Pty Ltd [2011] SASC 25, [40]-[41].
[75] (1986) 38 NTR 1 at 5.
[76] The Worker’s Liens Act 1893 (SA) operates in the Northern Territory by virtue of ss 2 and 3 of the Northern Territory Justice Act 1884 (SA) and ss 6(1) and 7 of the Northern Territory Acceptance Act 1910 (Cth) and s 57 of the Northern Territory (Self-Government) Act 1978 (Cth).
[77] (1986) 38 NTR 1 at 6.
[78] [1986] NTSC 34.
[79] (1986) 86 FLR 329 per Kearney J at 341.
[80] (2003) 174 FLR 483 per Martin CJ at 486.
[81] (1991) 160 LSJS 288.
[82] (1991) 160 LSJS 270.
[83] [2003] NTSC 22.
[84] (1999) 130 NTR 1.
Marriott Industries v Mercantile Credits 546
Page 547: after “execution” add footnote:
See paragraph 24 of the judgment of King CJ at page 554 below.
Re RGP Constructions(In Liq); Ewing v Hallett Brick Industries 730
Add to end of headnote:
This case was followed in Cladding and Roofing Contractors Pty Ltd v Candetti Construictions Pty Ltd [2013] SASC 102
.
VI – Hansard
Overall conclusions
31 October 1893
7 November 1893
Local Courts Act Amendment Bill 1964 882
25 August 1964
Workmen’s Liens Act Amendment Bill 1964 888
Workmen’s Liens Act Amendment Bill 1988 890
Statutes Amendment (Attorney-General’s Portfolio) Bill 2002 893
Head Contract Provision excluding head contractor’s lien claims
Head Contract Provision excluding subcontractors’ lien and/or charge claims
Section 10(2)(a) Notice
Statement of Claim in Action for Enforcement
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