Jennings Construction Ltd v Burgundy Royal Investments Pty Ltd [1986] NTSC 47; 42 NTR 1; 86 FLR 329 (13 October 1986)

[2]

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Kearney J.(1) CWDS Crown - Whether "land vested in Her Majesty" refers to "Crown lands" as defined in general Crown lands legislation - effect of changing definition of "Crown lands" on application of the Act - Workmens Liens Act 1893: s.48.. Statute - Liens registered against Crown Lease - whether land held under Crown Lease is "land vested in Her Majesty" - meaning of "land" and "vested" - whether "land vested in Her Majesty" refers to "Crown land" - whether land held under Crown Lease is Crown land - whether lien lies against Crown Lease - effect of change in definition of "Crown land" in general Crown lands legislation on application of s.48 - Workmen's Liens Act 1893: s.48. Statute - Whether enforcement of lien against Crown Lease would "change the liability of Her Majesty" - Workmen's Liens Act 1893: s.48 - Workmen's Liens Act 1893: s.48. Statute - Person "procuring performance of work for or on behalf of the Government" on part of Crown Lease - whether enforcement of lien changes "liability" of person - purpose of provision - application of proviso - Workmen's Liens Act 1893: s.48. Statute

Whether s.10(2) exclusively provides how contract price can "become due" under s.10(1) - effect of giving notice under s.10(2)(a) after lien ceases to be "available" under s.10(1), discussed - Workmen's Liens Act 1893: ss.10(1) and 10(2). Statute - Contract providing monies due on issue of Progress Certificate - need for Progress Certificate to issue before monies claimed "have become due" under s.10(1) - Workmen's Liens Act 1893: s.10(1). Cases applied: Advanced Civil Engineering Pty Ltd v Wyara Pty Ltd (unreported judgment of the Supreme Court, 25 June 1986), in part Albert Del Fabbro Pty Ltd v Wilckens and Burnside Pty Ltd , in part Blythe Green and Jordain (Trading) Pty Ltd v Sienna Pty Ltd (1986) 38 NTR1 Hawkins v Minister for Lands for New South Wales ; Miller's Lime Ltd v Royal Agricultural and Horticultural Society of South Australia ; Readymixed Concrete (S.A.) Pty Ltd v Construction Broken Hill Pty Ltd , in part Cases not followed: Advanced Civil Engineering Pty Ltd v Wyara Pty Ltd (unreported judgment of the Supreme Court, 25 June 1986), in part Albert Del Fabbro Pty Ltd v Wilckens and Burnside Pty Ltd , in part Statutes judicially considered: Workmen's Liens Act 1893, ss.10, 15 and 48 , , 118(1) Crown Lands Act, 1903 (S.A.) The Crown Lands Act 1888 (S.A.), s.5 Crown Lands Ordinance 1912 (N.T.), s.3 Crown Lands Ordinance 1923 (N.T.), s.5 Crown Lands Consolidation Act 1913-1946 (N.S.W.), s.5 HRNG DARWIN #DATE 13:10:1986 Counsel for the Plaintiff: P.J. Newman, QC Solicitors for the Plaintiff: Morris Fletcher and Cross Counsel for the Defendant: D. Mildren, QC Solicitors for the Defendant: Mildren, Silvester and Partners JUDGE1 By Interlocutory Summons of 22 September Burgundy Royale Investments Pty Ltd (herein referred to as the defendant) applied to have the Statement of Claim in proceedings No.436 of 1986 struck out and judgment entered for the defendant. It also sought the cancellation of Workmen's Lien No.176066 over Crown Lease registered Volume 193 Folio 51. I heard that application and similar applications in 6 other proceedings between the same parties on 29 and 30 September and ruled on 7 October, for reasons to be given later. I now publish those reasons. The background to the hearing, in brief, is as follows.

action shall be brought against the owner or occupier for enforcement of the lien within fourteen days from the registration thereof." 18. Section 48 provides:- "48. Nothing in this Act contained shall create or give any right or remedy against land vested in Her Majesty or any person for or on behalf of the Government or increase or change the liability of Her Majesty, or of any person procuring the performance of work for or on behalf of the Government and, except as between the contractors, sub-contractors, and workmen, this Act shall not apply to such work." The effect of s.48 of the Workmen's Liens Act 19. I turn now to the defendant's submissions which were common to all 7 proceedings. It is necessary first to set out the facts against which those submissions were made. 20. Senior counsel for the defendant, Mr Mildren, summarized the relevant undisputed facts as follows:- "Burgundy Royale Investments Pty Ltd was granted a Term Lease under the Crown Lands Act. That Crown Term Lease was given subject to a Development Deed (of 17 November 1982) ... by its provisions Burgundy Royale Investments was required to build on the land (the Darwin Centre, comprising) a hotel, certain offices, and other improvements, including the Performing Arts Centre. Burgundy Royale entered into a contract with Jennings Construction Limited to carry out Stage 3 of that project. Under the terms of the contract between the parties there was provision for progress payments. Jennings received a progress certificate in this particular case (No. 436 of 1986) ... It claims that it hasn't been paid that sum and it is entitled, therefore, as it has performed work on the land, to lodge a notice of lien over the defendant's Crown Lease term." 21. Under the Development Agreement of 17 November 1982 (as varied on 8 February 1985), compliance with the terms of which is a condition of the defendant's Crown Lease, the Territory was to fund the cost of constructing on part of the leased land the theatre and performing space known as the Performing Arts Centre. The Territory was to pay this money to the defendant which had full responsibility for constructing the Darwin Centre which included the Performing Arts Centre including responsibility for paying the plaintiff for the cost of the whole works. 22. Condition 7 of the defendant's Crown Lease (inserted in 1985) provides that upon issue of a Certificate of Occupancy under the Building Act, the defendant has the right to surrender its Crown Lease "and thereupon shall be granted an Estate in Fee Simple". I note in this connection that pursuant to Clause 42.2 of the contract the Superintendent issued on 20 September 1986 his Certificate of Practical Completion of the works; I have not been informed whether a Certificate of Occupancy has issued. The Development Agreement contemplated that upon completion of the works there would be a subdivision of Lot 5335 with the issue of 2 separate titles in fee simple under the Unit Titles Act, one for the the Performing Arts Centre, the other for the hotel and office complex which comprised the rest of the Darwin Centre. When the separate titles issued the defendant was forthwith to transfer an unencumbered title to the Performing Arts Centre to the Darwin City Council free of cost. 23. The defendant has a continuing obligation after completion of the Darwin Centre to provide at cost sufficient hot and chilled water for the air-conditioning of the Performing Arts Centre; and it is required to grant to the Darwin City Council at a nominal rental a long-term lease over certain car parking spaces within the carpark constructed in the basement of the Darwin Centre. 24. Section 48 of the Workmen's Liens Act limits the sphere of operation of the Act in certain ways. Mr Mildren submitted that the plaintiff has no right to any of the 8 liens which it claims over the defendant's leasehold estate, because of the provisions of s.48. Three of the limitations in s.48 applied independently so as to prevent the liens attaching. I now deal with the submissions in respect of each limitation. 25. First, Mr Mildren contended that, although the land comprised in Lot 5335 is the subject of a Crown Lease granted to the defendant, it remains "land vested in Her Majesty" within the meaning of that phrase in s.48 of the Workmen's Liens Act; and as s.48 provides that nothing in the Act "shall create or give any right or remedy against land vested in Her Majesty", it follows that the plaintiff can have no lien against the defendant's Crown Lease of Lot 5335. 26. Senior Counsel for the plaintiff, Mr Newman QC submitted that "land" should be read as "an estate or interest in land" and, as the liens attached only to he defendant's leasehold estate, they did not affect the Crown's interest in Lot 5335. However, I do not think that "land" bears that connotation in s.48. Further, "vested" is not confined to the meaning "vested in possession"; see the comment by Dixon J. in Hawkins v Minister for Lands for New South Wales [1949] HCA 21; (1949) 78 CLR 479 at 492, set out on p 19. 27. I consider that the reference in s.48 to "Her Majesty" is a reference to "the Crown" the terms are, for example, used interchangeably by Latham C.J. in Hawkins v Minister for Lands for New South Wales (supra) at pp 486-7. The phrase "land vested in Her Majesty" or "land vested in the Crown" is, in my opinion, another way of referring to "Crown lands", and what is comprised by the expression "Crown lands" in a given political entity in Australia is set out in its general enactment relating to Crown lands. In the Territory that is the Crown Lands Act; I will deal with that shortly, but for the moment return to Mr Mildren's submissions. 28. In support of his submission on the first "leg" of s.48 Mr Mildren relied particularly on 2 cases. The first was Miller's Lime Limited v Royal Agricultural and Horticultural Society of South Australia [1936] SAStRp 57; (1936) SASR 306. The Adelaide Show Grounds Act 1913 (S.A) was a special Act which empowered the Governor to grant to the defendant Society a lease of certain Crown land for a term of 99 years in accordance with an agreement scheduled to the Act. The provisions of the Act applied notwithstanding anything contained in the Crown Lands Act 1903 (S.A.). The 1903 Act had the same definition of "Crown lands" as the Crown Lands Act 1888 (S.A.), set out on p 20 hereof, a definition which remained unchanged in the general Crown lands legislation of South Australia at the time Miller's Lime was decided in 1936. As can be seen from p 20 it specifically excluded lands held under Crown Lease from the category of Crown lands; had the lease to the Society been granted under the Crown Lands Act 1903 it is clear that the leased land could not have been regarded as Crown land. 29. The Society was granted its lease. Later, a Centennial Hall was built by the Chamber of Manufactures Inc. on part of the Society's lease, pursuant to an agreement scheduled to an amending Act of 1935. Under that agreement the Government was to lend the Society the sum required for the construction of the Hall. The Chamber was to have the possession and use of the Hall from time to time; the Government had the right to have the possession and use of the Hall for its purposes without cost when it was not required by the Society or the Chamber. The Chamber contracted with a firm of contractors for the construction of the Hall. The contractors let a sub-contract to a firm which in turn let a further sub-contract to the plaintiff for work and materials used in the construction. The plaintiff being unpaid claimed a lien under the Workmen's Liens Act 1893 over the Society's leasehold estate and also over the interest of the Chamber as occupier of the Hall. The claim against the Society was later abandoned. The Court (Murray C.J., Angas Parsons and Richards JJ.) held that the plaintiff was not entitled to a lien over the Chamber's interest in the land but for differing reasons. 30. Murray C.J. observed at p 317:- "... it appears from the Adelaide Show Grounds Act 1913 that the land (on which the Hall is erected) is vested in the Crown ..." At p 318 his Honour noted:- "The land on which the Hall is erected is undoubtedly vested in the Crown, the person that procured the performance of the work of its erection was the Chamber but it procured it for or on behalf of the Crown, in as much as the Government was providing the money to pay for it, and it became the property of the Crown when it was erected. Therefore, as it seems to me, liens in respect of the work are excluded by the final words of (section 48 of the Workmen's Liens Act) ..." (underlining mine). 31. The Chief Justice clearly was of opinion that the lien was excluded because s.48 provided that "this Act shall not apply to such work", words which render the Workmen's Liens Act generally inapplicable to work the performance of which is procured for or on behalf of the Government, as he found to be the case. That is the third "leg" of s.48. Richards J. considered that the amending Act of 1935 was a special Act which gave the force of law to the occupancy of the Hall by the Chamber, and thus took the subject land completely out of the operation of the Workmen's Liens Act. Angas Parsons J. agreed both with the reasons of the Chief Justice and those of Richards J. 32. As I understand their Honours' approaches to the question, none of them founded their conclusion - that the Chamber's interest in the land was not subject to a lien - upon the basis that the land was "vested in Her Majesty". To that extent the case does not support Mr Mildren's argument. The conclusion by Murray C.J. that the land leased to the Society was "vested in the Crown" presumably proceeded on the basis that land leased from the Crown nevertheless remains Crown land unless the legislation providing for the lease otherwise provides; there was nothing in the Adelaide Show Grounds Act 1913 or the amending Act of 1935 (as opposed to the Crown Lands Act 1903) which did otherwise provide. I note that in Albert Del Fabbro Pty Ltd v Wilckens and Burnside Pty Ltd (1971) SASR 121 at p 130 Bray C.J. considered that the essence of the decision in Miller's Lime was that the lien was excluded by s.48 because "the land in question was the property of the Crown"; although that was not the way the members of the Court in Miller's Lime approached the question, it is clearly a basis upon which their decision can be supported, and, in that sense, the decision supports Mr Mildren's argument. 33. Mr Newman submitted that the fact that the Crown had the right to occupy and use the Hall from time to time was the feature, peculiar to Miller's Lime, which attracted the application of s.48 and excluded the lien. The argument, as I understand it, was that the Crown's right to occupy the Hall from time to time meant that the land was still to be regarded as "land vested in Her Majesty"; whereas in the present case the Crown has no such right, and the liens therefore cannot affect the interests of the Crown at all. The Court in Miller's Lime did not approach the question before it in that way; I do not consider that the Crown's right to occupy from time to time was a material factor in the decision. 34. Mr Newman also submitted that the purpose of s.48 was to "preserve the shield of the Crown"; that graphic expression is not, I think, a useful means of analysing that part of s.48 currently under discussion, though it illuminates the part relating to work performed for the Government, discussed later. 35. I noted on p 12 that Mr Newman also submitted that as the liens were registered solely against the defendant's leasehold interest they did not affect the Crown's position. The liens are registered only on the Crown Lease, but the question, which this submission does not address, is whether the land subject to such a Lease remains land vested in the Crown. If it does, the lien cannot be claimed against the land; whether the Crown's position is affected or not by the lien is irrelevant. 36. The second case upon which Mr Mildren relied was Hawkins v Minister for Lands for New South Wales (supra) where it was held that land the subject of a Crown Lease granted in perpetuity under the Crown Lands Consolidation Act 1913-1946 (N.S.W.) remained land "vested in His Majesty". The decision of the majority in the High Court turned upon the definition of "Crown lands" in s.5 of that Act, viz:- "'Crown Lands' means lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee-simple under the Crown Lands Acts.". 37. The grant of the Crown lease in perpetuity was not a grant in fee simple, though it gave the lessee extensive rights including the right to convert in due course to a Conditional Purchase, which in turn carried a conditional entitlement to a later Crown grant in fee simple. 38. In an important passage Latham C.J. said at p 487:- "It is contended that lands granted by way of Crown lease or otherwise are also excluded because, after a grant, they are no longer vested in the Crown. In my opinion this argument should not be accepted. The express and limited exception (in s.5) of lands contracted to be granted 'in fee simple' would not be necessary if every grant of lands of any character under the Act removed the subject lands from the category of Crown lands. The definition does not provide that lands which are the subject matter of lease or licence shall also be excepted. Under a Crown lease, even though it is a perpetual lease, the Crown has become the landlord of the lessee, rent is payable to the Crown as landlord, and if the lessee does not perform the conditions of the lease the lease may be forfeited and then the Crown would have a complete title free from the lease." 39. Dixon J. said of the Crown Lease in perpetuity, at p 492:- "Because it is a Crown lease in perpetuity the land, it is claimed, is no longer vested in His Majesty within the meaning of the definition. No doubt the reversionary interest in the Crown is slight and it may be said to be technical. But a rent is reserved, there are special conditions, the interest is capable of surrender and, for non-payment of survey fees, of forfeiture. It is difficult to find any ground for giving to the word "vested" anything but its legal meaning. It can hardly be confined to 'vested in possession'. The reference in the exclusionary part of the definition to land granted

in fee simple tends strongly against the view that after the grant of a limited interest in possession land is no longer 'vested' in the Crown for the purposes of the definition. In my opinion land subject to a Crown lease in perpetuity may still be 'vested in His Majesty'." 40. It is instructive to compare the definition of "Crown lands" in the N.S.W. Act with the current Crown Lands Act under which the defendant was granted its Crown Lease. "Crown lands" is defined in s.5 of that Act as:- "'Crown lands' means all lands of the Territory, including the bed of the sea within the territorial limits of the Northern Territory, and including an estate in fee simple that is registered in the name of the Territory, but does not include reserved or dedicated lands;" 41. By way of contrast the definition of "Crown lands" in s.5 of The Crown Lands Act 1888 (S.A.), the general Act regulating the disposition of Crown lands in South Australia at the time of the enactment of the Workmen's Liens Act in 1893, so far as is relevant, was as follows:- "'Crown lands' shall mean and include all lands in South Australia situated to the south of the twenty-sixth parallel of south latitude, except - I. Lands reserved for or dedicated to any public purpose; II. Lands lawfully granted, or contracted to be granted, in fee-simple by or on behalf of the Crown; III. Lands subject to any lease or licence lawfully granted by or on behalf of the Crown; ..." 42. The only difference between that definition and the corresponding definition in the preceding general Act in South Australia, the Crown Lands Consolidation Act 1886, was the substitution of the words "the Crown" for "Her Majesty". 43. It will be noted that the Act of 1888 did not apply to what was then the Northern Territory of South Australia. The South Australian legislation which regulated the general disposition of Crown lands in the Northern Territory of South Australia as at 1893 was The Northern Territory Crown Lands Act 1890. Section 5 of that Act defined "Crown lands" in identical terms to that in The Crown Lands Act 1888. 44. Section 3 of the Crown Lands Ordinance of 1912 (Cwlth) had the following definition, as far as is relevant:- "'Crown Lands' means all lands of the Crown in the Northern Territory other than - (a) reserved or dedicated lands; or (b) lands subject to any lease granted on behalf of the Crown;" 45. It can be seen that the earlier South Australian approach to the exclusion of land held under Crown Lease was maintained. A significant change of definition occurred in 1923 by s.5 of the Crown Lands Ordinance of that year:- "'Crown Lands' means all lands of the Crown in the Northern Territory other than reserved or dedicated lands;" 46. It will be noted that as from 1923 onwards lands the subject of Crown Leases ceased to be excluded from Crown lands. The present Crown Lands Act was first introduced as an Ordinance in 1931 and contained the same definition of "Crown lands" as the 1923 Ordinance. The definition was amended in 1956, 1970, 1978 and 1980 to reach its present expression; it has never expressly referred to lands subject to leases granted by the Crown. 47. It can be seen that the definition of "Crown lands" in the general Crown lands legislation of New South Wales and the Northern Territory are similar in several respects; it is clear that neither definition of "Crown lands" removes land held under Crown lease from the category of Crown lands. This is clear from the language used in s.5 of the Crown Lands Act, and is illustrated by the specific exception of leased lands for the special purposes of s.118(1) of that Act, viz:- "Any officer ... who has reason to believe that any person is in unlawful occupation of any Crown lands (including reserved or dedicated lands but not including any leased lands or lands occupied under licence or agreement), ... may make complaint before a Justice." (underlining mine). 48. It can also be seen that the 19th century South Australian general legislation relating to Crown lands, applicable in South Australia and its Northern Territory, and the post-1911 later Commonwealth legislation relating to Northern Territory Crown lands (until 1923), adopted a diametrically opposite approach and treated land held under Crown Lease as removed from the category of Crown lands. It follows that when the Workmen's Liens Act came into force in 1893 s.48 did not impose a barrier in South Australia (including its Northern Territory) to the registration of liens against lands held under Crown leases granted under the Crown lands legislation. While that position apparently still obtains in South Australia, it appears not to have obtained in the Territory since 1923. 49. I think it is clear that because of the way "Crown lands" is defined in s.5 of the Crown Lands Act, s.48 of the Workmen's Liens Act 1893 currently prevents the creation of any lien under that Act against a Crown Lease granted under the Crown Lands Act, because land held under a Crown Lease remains "land vested in Her Majesty". It follows that I uphold Mr Mildren's submission on the first "leg" of s.48 which goes to all 7 proceedings. I will accordingly deal more briefly with the other submissions. 50. The second argument of the defendant based on s.48 turns on the prohibition therein of liens which would "change the liability of Her Majesty". The meaning of this phrase was not argued; I respectfully agree with Chamberlain J. that its application is "somewhat obscure"; see Readymixed Concrete (S.A.) Pty Ltd v Construction Broken Hill Pty Ltd (1963) SASR 340 at p 345. 51. Mr Mildren submitted that an application to enforce a lien registered on the Crown Lease would result in an order for the sale of the leasehold estate; and this in turn would "change the liability of Her Majesty" in 2 ways. 52. First, the result of the sale would be that the covenants of the lease would be carried out by a new lessee. I do not see how that would change the liability of the Crown. 53. Second, the Crown's liability would be changed because of the effect of a sale on the provisions of the Development Agreement of 17 November 1982, compliance with which is a condition of the defendant's Crown Lease. I set out earlier the gist of some of the Agreement's main provisions. It provides for the payment of substantial sums of public monies for the construction of the Performing Arts Centre on part of the land held under the Crown Lease. Mr Mildren contended that the Agreement showed that all of the improvements constructed on Lot 5335 (or, alternatively, that part of the improvements which constitutes the Performing Arts Centre) belong to the Crown until an estate in fee simple is granted; thus, in his submission, the sale of the leasehold would "change the liability of Her Majesty". 54. It is clear, I think, that the beneficial ownership of the Performing Arts Centre is in the Crown. I accept that s.48 prevents the registration of a lien against so much of the land held under the defendant's Lease as will ultimately constitute the land held under a separate title by the Darwin City Council. I do not think that the second "leg" of s.48 prevents a lien being lodged against the defendant's leasehold estate in the rest of the land because I do not think that such a lien affects the "liability of the Crown". 55. Mr Mildren's third submission, based on the third "leg" of s.48, is that a lien does not lie against the defendant's leasehold estate because it is clear from the Development Agreement of 17 November 1982 that the defendant procured work to be done on the Performing Arts Centre "for or on behalf of the Government". The Government paid for the work of constructing the Performing Arts Centre. In terms of s.48, the submission is that a lien on the Crown Lease would "change the liability ... of (the defendant as a) person procuring the performance of work for or on behalf of the Government". Mr Mildren submitted that the result was that no lien lay against the whole of the land held under the Crown lease; alternatively, if not against the whole, against that part of it on which the Performing Arts Centre is erected. The "liability" of the defendant, it is said, extends to the provision of a separate title to the Performing Arts Centre, to the grant of leases over the carpark spaces, and to the continuing supply of water for the air-conditioning system of the Performing Arts Centre; and its "liability" in these respects stems from its procuring the performance of the work of constructing the Performing Arts Centre for the Government. 56. I referred on p 17 to Mr Newman's submission that the purpose of s.48 was to provide the "shield of the Crown". I consider that the purpose of this "leg" of s.48 is to place beyond the reach of the Act a person procuring work to be performed for the Government, if the effect of enforcing the lien would be to change the liability of that person to carry out his obligations to the Government. In this case the enforcement of the lien by sale of the leasehold would render the defendant incapable of carrying out the obligations to the Government mentioned above. Its "liability" in respect thereof however remains unchanged, despite a sale. The Crown's right to secure the performance of those obligations by any lessee under the Crown Lease is untouched. The proviso - "except as between the contractors, sub-contractors and workmen" - applies to the third "leg" of s.48 (and only to that "leg"). For the purpose of the argument on this "leg" the defendant is a contractor (to the Government) and the plaintiff a sub-contractor. I see no reason why the third "leg" of s.48 would prevent the application of the Act, and I would reject Mr Mildren's submission on that aspect. 57. I have dealt above with the arguments under s.48. 58. Mr Mildren submitted that in all of the proceedings other than Nos 690 of 1986 and 730 of 1986 there were deficiencies in the Statements of Claim in that they did not clearly plead a cause of action. It suffices to say that the nature of the deficiencies alleged is such that I would not grant the relief presently sought by the defendant, if those deficiencies exist. It would be appropriate, in my opinion, for the plaintiff to be granted leave to amend its Statements of Claim to meet any such deficiencies. 59. I now turn to the defendant's submissions which were directed only at certain of the proceedings. Proceedings No. 436 of 1986 60. Mr Mildren submitted that the sum of $371,548 had "become due" within 28 days of 22 April, the date of issue of Progress Certificate No. 40A. The lien was registered on 2 June, more than 28 days after the monies had "become due". Therefore, the submission went, the lien was not "available" because the requirements of s.10(1) of the Act were not met. 61. The submission was that monies can "become due" under s.10(1) of the Workmen's Liens Act in ways other than those contemplated by s.10(2). 62. I note that a notice of demand under s.10(2)(a) of the Act was given by the plaintiff to the defendant on 2 June. Mr Mildren submitted that as at 2 June the lien had ceased to be "available", and once that had happened it could not be renewed. 63. Advanced Civil Engineering Pty Ltd v Wyara Pty Ltd(unreported judgment of the Supreme Court, Asche J., 25 June 1986) is authority for the proposition that the provisions of s.10(1) of the Workmen's Liens Act are independent of the provisions of s.10(2). His Honour discussed the matter at pp 30-32 of the judgment, noting that he differed in that respect from the views of Murray C.J. in Miller's Lime(supra) at p 314, which had been gravely doubted by Bray C.J. in Albert del Fabbro Pty Ltd (supra) at p 127. 64. With respect, I differ from the views of Asche J. in this respect. The Workmen's Liens Act provides a special statutory remedy. I see no reason why, when a contractor seeks to avail himself of the remedy, a special regime should not be contemplated by s.10 which turns upon a specified date being fixed as that on which, for the purposes of the legislation, the monies shall be treated as having become due. If s.10(1) is independent of s.10(2), it is difficult to assign any meaning to the phrase "for the purposes of this section" in s.10(1). On the other hand, if s.10(2) provides the means for fixing the date on which monies "become due" for the purposes of the Act, the system of enforcement then instituted appears to accord better with what business would require. 65. I note that the learned author of "The Artificer's Lien", the late Mr R.D. Elliott, also considers that the date on which the debt "becomes due" is an artificial point of time, for the purposes of the Act; see pp 95 and 96. 66. Taking this view, I note that the notice of demand under s.10(2)(a) of the Act was made on 2 June; so by virtue of ss 10(4) and 15 of the Act, the lien was registered, and an action for its enforcement brought within time. I reject the defendant's argument on this ground. 67. If that view be wrong then it appears from s.10(1) that the lien ceased to be "available" 28 days after 22 April. What then would be the effect of the notice of demand of 2 June, under s.10(2)(a)? Mr Mildren submitted that it had no effect at all, as the lien had gone and could not be renewed. He relied on Blythe Green and Jordain (Trading) Pty Ltd v Sienna Pty Ltd [1986] NTSC 14; (1986) 38 NTR 1. I respectfully agree with the view of Rice J. that once a lien ceases it ceases forever. The question of the effect of s.10(2) did not however arise in that case. The plaintiff complied with the statutory requirements of s.10(2)(a) on 2 June; if the words of the statute are to be given effect, the monies were then deemed to have become due on 9 June, and that deeming took effect for the purposes of s.10, including s.10(1). If so, there may be a further period of 28 days from 9 June within which the lien could be registered, though s.10(4) permitted its registration on 2 June. The question appears complex; it is unnecessary for me to express an opinion on it, and I refrain from doing so, as I do not accept the initial hypothesis. Proceedings No. 690 of 1986 68. Mr Mildren submitted that the lien was lodged prematurely. It will be recalled that no Progress Certificate ever issued for the amount of $26,800,668 for which on 28 August the plaintiff had claimed a Progress Certificate. The notice of demand was made on 1 September, and a lien was registered on that date. The Progress Certificate which issued in response to the plaintiff's claim of 28 August on 18 September was for $114,161. 69. I consider that as at 1 September, the date of the notice of demand and the registration of the lien, the monies claimed were not due for the purposes of the Workmen's Liens Act, because no Progress Certificate had issued. In reaching that opinion, I adopt with respect the views of Asche J. in Advanced Civil Engineering Pty Ltd (supra) at pp 27-8 where his Honour dealt with the point arising under an identical contract, and considered that monies "became due" on the date of issue of the Progress Certificate. 70. Accordingly I accept Mr Mildren's submission that there was no lien in existence on 1 September. 71. The claim in the writ in relation to the lien referred only to a "sum ... then due and payable under the contract", and not to any sum due under a quantum meruit. If a lien is to be claimed under a claim based on a quantum meruit, the Statement of Claim may be amended in due course. Proceedings No. 730 of 1986 72. Mr Mildren submits that both of the liens should be cancelled. Lien No. 180977 for $114,161 is said to be bad, because it comprises part of the sum secured by the lien the subject of proceedings No.690 of 1986. 73. I accept the views of Asche J. in Advanced Civil Engineering Pty Ltd (supra) at pp 33-9, but I do not consider that their application should result in an order that Lien No. 180977 be cancelled. 74. As to Lien No. 181047 in the sum of $26,800,668 I think it is bad for the reasons earlier expressed. 75. I have borne in mind the need for caution in granting the relief sought, on interlocutory applications, referred to by Asche J. at pp 39-41 of Advanced Civil Engineering Pty Ltd (supra), but am persuaded to deal with the matter for the same reasons as his Honour found persuasive Orders made on 7 October 1986 (1) In proceedings 436 465, 540 and 622 of 1986, the relief sought in paras 1 to 5 of the respective Interlocutory Summonses filed by the defendant on 22 September 1986 in each of these proceedings is granted. (2) In proceedings 690 of 1986 the relief sought in paras 2 to 5 of the Interlocutory Summons filed by the defendant on 22 September 1986, is granted. Paragraph (b) of the Indorsement of Claim is struck out. (3) In proceedings 699 of 1986 the relief sought in paras 1 to 5 of the Interlocutory Summons filed by the defendant on 25 September 1986, is granted. (4) In proceedings 730 of 1986 the relief sought in paras 1 to 5 of the Originating Summons filed by the defendant on 29 September 1986, is granted.

Jennings Construction Ltd v Burgundy Royal Investments Pty Ltd [1986] NTSC 47; 42 NTR 1; 86 FLR 329

At a glance

Court

Decision date

Before

Source

Judgment (5 paragraphs)

Jennings Construction Ltd v Burgundy Royal Investments Pty Ltd [1986] NTSC 47; 42 NTR 1; 86 FLR 329 (13 October 1986)

Parties

Legislation Cited (24)

Cases Cited (1)