This is a part of The Worker’s Liens Casebook, by Robert Fenwick Elliott. Copyright © 2010
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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.