Introduction – A Check List

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

Copies of text of no more than 500 words may be made, provided they are accompanied by due attribution.


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:

  1. he entered into a contract with [the head contractor] to undertake work (“the sub-contract”);
  2. the sub-contract was for work to the land or fixtures thereon;
  3. he undertook work pursuant to the sub-contract;
  4. the work undertaken was to the land or fixtures thereon;
  5. an amount was payable pursuant to the sub-contract by [the head contractor] to [the plaintiff subcontractor] for that work;
  6. 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];
  7. the work was done with the assent (express or implied) of [the owner] as owner of the land;
  8. 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”);
  9. 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;
  10. 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];
  11. 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
  12. [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.

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