Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd & Ors; Henry Walker Contracting Pty Ltd v Pegasus Gold Australia Pty Ltd [1999] NTSC 62; 8 NTLR 171; 130 NTR 1; 151 FLR 242; 96 IR 24

"available" under s10(1) � meaning of "deemed" in s10(2)(a)

Re Sneesby; Ades and Bowes Contract [1919] VicLawRp 71; [1919] VLR 497, followed

Andrew v Arthur H. Dillon Pty Ltd (1942) 59 WN (NSW) 113, followed

K & S Lake City Freighters Pty Ltd v Gordon & Gotch [1985] HCA 48; (1985) 60 ALR 509,

Sitzler Bros Pty Ltd v DKB Investments Pty Ltd (1989) NTJ 345, approved

Marriott Industries Pty Ltd v Mercantile Credit Limited (1991) 160 LSJS

The Queen v The County Council of Norfolk (1891) 60 L.J.Q.B. 379,

Metropolitan Bank Company v Haywood [1938] SAStRp 57; [1938] SASR 462, followed

Cooper Brookes (Wollongong) Pty Ltd v F.C.T [1981] HCA 26; (1981) 35 ALR 151, applied

Australian Alliance Assurance Co Ltd v Attorney-General (Qld) [1916] St R

STATUTES � interpretation � Workmens Liens Act - construction of

s10(1) and s10(2) � whether s10(2) exhaustively defines when "contract

Advanced Civil Engineering Pty Ltd v Wyara Pty Ltd (1986) NTJ 715,

Millers Lime Ltd v Royal Agricultural and Horticultural Society of South

Australia [1936] SAStRp 57; [1936] SASR 306, followed

Albert del Fabbro Pty LTd v Wilckens & Burnside Pty Ltd [1971] SASR 121,

Jennings Construction Ltd v Burgundy Royale Investments [1986] NTSC 47; (1986) 42 NTR 1,

Parob Pty Ltd v Pipeline Properties Pty Ltd and Anor (1988) NTJ 1546,

Pipeline Properties Pty Ltd v Leichhardt Development Co Pty Ltd (1989) 58

Leichhardt Development Co Ltd v Pipeline Properties Pty Ltd (1989) 62

Malady Enterprises Pty Ltd v Colstar Pty Ltd (1991) NTJ 263, overruled

Marriott Industries Pty Ltd v Mercantile Credit Limited (1991) 160 LSJS

Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991)

160 LSJS 270, followed

STATUTES � interpretation � Workmens Liens Act � construction of s10(4)

� whether act of registration of lien under s10(4) makes it "available"

under s10(1) � whether s10(2) must be complied with despite registration

of lien under s10(4), for lien to be "available" under s10(1)

Parob Pty Ltd v Pipeline Properties Pty Ltd and Anor (1988) NTJ 1546,

Pipeline Properties Pty Ltd v Leichhardt Development Co Pty Ltd (1989) 58

Leichhardt Development Co Ltd v Pipeline Properties Pty Ltd (1989) 62

Malady Enterprises Pty Ltd v Colstar (1991) NTJ 263, overruled

Marriott Industries Pty Ltd v Mercantile Credit Limited (1991) 160 LSJS

Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991)

160 LSJS 270, followed

STATUTES - interpretation � Workmens Liens Act -desirability of

conformity in construction of identical provisions, as between different

Camden Park Estate Pty Ltd v OToole (1969) 72 SR (NSW) 188, referred to

STATUTES � interpretation � whether Mineral Lease under Mining Act

constitutes an "estate or interest in land" under s5 of Workmens Liens Act

R v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327, applied

Thiess Contractors Pty Ltd v White Range Gold NL (1991) NTJ 1013,

National Provincial Bank Ltd v Ainsworth [1965] UKHL 1; [1965] AC 1175, followed

Stow v Mineral Holdings (Aust) Pty Ltd [1979] HCA 30; (1977) 51 ALJR 672, applied

Plaintiff: (proceedings nos 1 and 134 of 1998) M Maurice QC

Plaintiff: (proceedings nos 1 and 134 of 1998): James Noonan

The questions referred to the Court, set out in par [6], are answered as

Not applicable, but clearly the answer to the substantive question is

Jovista Pty Ltd v Pegasus Gold Australia Pty Ltd & Ors

Henry Walker Contracting Pty Ltd v Pegasus Gold Australi a Pty Ltd

[1999] NTSC 62

CORAM: MARTIN CJ, KEARNEY, MILDREN, THOMAS & BAILEY JJ

I have had the benefit of the draft reasons and decisions of Kearney J.

His Honours extensive review of the conflicting authorities and analysis of

the issues in these matters lead me to agree with the answers he proposes to

the questions referred to this Court. This Court comprising five Judges, the

decisions of the Supreme Court contrary to the result in these matters must

On 5 February 1999 and 19 March, pursuant to s 21 of the Supreme Court

Act, Angel J (in proceedings Nos. 1 and 134 of 1998) and Bailey J (in

proceedings No. 136 of 1997) respectively referred the 4 questions of law

set out in par [6] to this Court, for determination. For that purpose certain

facts and conclusions set out in the statements of claim filed in the 3

proceedings, were assumed to be correct. As far as presently material, those

The defendant is and was at all material times the owner and

occupier of Mineral Lease No 1070 known as Mount Todd (,,the

The defendants interest in the land is and was at all material times

an estate or interest in land for the purposes of the Workmens Lien

Act [herein ,,the Act]. [This fact is not assumed to be correct, for

On 5 September 1996 the parties made a written contract mining

agreement (,,the agreement) relating to a project known as the Mt

Todd Project whereby, in consideration of various payments to be

made from time to time by the defendant to the plaintiff, the latter

agreed to perform the work and provide the materials set out in

Section 3 of the agreement, ,,Specifications and Scope of Work . [It

can be seen that the parties were in a direct contractor/client

In Section 2, ,,General Conditions of Contract, the agreement

The Contractor [ie the Plaintiff] shall be entitled to payment of

the contract value of all Work carried out in accordance with

the Contract to the date of Termination (less amounts

previously paid to the Contractor in respect thereof).

Between the time the agreement was made [5 September 1996] and

15 November 1997 the plaintiff performed work under the agreement

to the land and to fixtures thereon and provided materials under the

agreement to be used in and about work done and intended to be

done to the land and the fixtures thereon, for some of which the

The amounts outstanding under the agreement (,,the unpaid monies)

Work done and materials supplied for November 97 $2,085,677.41

By written notice dated 15 November 1997 addressed to the plaintiff,

the defendant purported to terminate the agreement with effect from

that date, on the grounds that in the defendants opinion the

continuation of the Mt Todd Project was not economically viable. In

support of this action the defendant expressly relied upon clause 31.4

of the agreement [set out in item (2) in par [4]].

On the facts set out above the unpaid monies [in item(6) above]

accrued due on or before midnight 15 November 1997 [as per item

[The plaintiff then claimed that it became entitled to liens under the Act on

the defendants estate or interest in the land, in respect of the unpaid monies

On 12 December 1997 [that is, 27 days after the unpaid monies

,,accrued due in terms of item(8)] the plaintiff demanded payment

[under s 10(2)(a) of the Act] of the unpaid monies by notices in

writing to which its corporate seal was duly affixed, posted in a

registered letter to the defendants registered office at Edith Falls

On 24 December 1997 [that is, 39 days after the date on which that

the unpaid monies ,,accrued due in terms of item(8), and 12 days

after the demand for their payment was made in terms of item(9)] the

liens were registered under the Act. [These were Liens Nos. NL366

and NL367 for the November and October 1997 amounts,

[The plaintiff then proceeded to claim, inter alia, an order under s 25 of the

Facts to the same effect as those in items 1-3, 5 and 7 in par[3] were

assumed correct. The further facts assumed correct are:

It was an implied term of the agreement [of September 1996] that,

except as expressly provided in the document, the defendant would

do nothing to hinder or prevent efficient performance of the

agreement by the plaintiff and, further, that the defendant would do

everything necessary or proper and reasonable to facilitate efficient

performance of the agreement by the plaintiff, maximise productivity

and promote the objective of ensuring that the plaintiff operated at a

In section 2, ,,General Conditions of Contract, the agreement

31.4 The Company [ie the defendant] may by written notice

addressed to the Contractor [ie the plaintiff] terminate this

Contract at any time if in the Companys reasonable opinion

the continuation of the Mt Todd Project is not economically

viable, for any reason whatsoever. If the Company exercises

its right to terminate this Contract pursuant to this Clause 31.4

the Contractor shall be entitled to payment of the contract

value of all Work carried out in accordance with the Contract

to the date of Termination (less amounts previously paid to the

[There followed in the statement of claim, claims for losses and expenses in

respect of various items of work and materials � tyres, dewatering, battens,

drill and blast, productivity and accommodation. The following facts were

The losses and expenses referred to above are moneys payable by the

defendant to the plaintiff for work done and materials furnished by

the plaintiff in connection with work so as to amount to a contract

price or contract prices (,,the contract price) within the meaning of

On the facts set out [as per item(7) in par[3]] above the contract

price [in item (3)] accrued due on or before midnight on

[The plaintiff then claimed that it became entitled to liens under the Act on

the defendants estate or interest in land; in respect of the amounts referred

to in item(3), the following further facts are assumed correct]:

On 9 June 1998 [that is, almost 7 months after the contract price in

terms of the amounts in item(3) ,,accrued due on 15 November 1997

as per item(4)] the plaintiff demanded payment [under s 10(2)(a) of

the Act] of the contract price [in terms of item (3)] by notice in

writing dated 5 June 1998 to which its corporate seal was duly

affixed, served on the defendant by its solicitors.

By reason of the service of the notice [of 5 June 1998] and the

defendants non-payment, [pursuant to s 10(2)(a) of the Act] the

contract price is deemed to have become due for the purposes of

section 10(1) of the Act on or about 16 June 1998 [that is, 7 days

after service of the notice of demand in item(5) above].

On 17 June 1998 [that is, one day after the contract price (in terms of

item(3) was deemed to have ,,become due in terms of item(7), some

7 months after the contract price ,,accrued due in terms of item(4)

and 8 days after the demand in item (5)], lien No. NL 372 was

[The plaintiff proceeded to claim, inter alia, an order under s 25 of the Act for

The second, third and fourth defendants to proceedings No.136 of 1997

(herein "the contractors") had jointly contracted with the first defendant

thereto (referred to in this judgment as "the defendant") to supply men and

material for the extension of the defendants mine on Mineral Lease No.

1070. Jovista Pty Ltd contracted with the contractors by 4 contracts

numbered 1073, 1075, 1077 and 1078, to carry out certain works at the mine

pursuant to the contractors contract with the defendant. (It can be seen that

it is a subcontractor, as far as the defendant is concerned). Jovista Pty Ltd

claims that the contractors have refused to pay certain monies due to it being

monies due from variations to its 4 contracts, amounts it had been underpaid

on Progress Payment Certificates, and retention monies it claims to be now

due to it under Contract 1078; these amounts constitute the balance of the

contract price payable by the contractors to Jovista Pty Ltd under the 4

contracts. These facts are for present purposes assumed to be correct, as are

[the defendant] was a lessee, tenant or occupier of land namely

the land the subject of [Mineral Lease No.1070], within the

the [Contract Nos] 1073, 1075, 1077 and 1078 Works were

undertaken by [Jovista Pty Ltd] with the assent of [the

By 9 June 1997, the following monies, or some of them, were due

and presently payable, alternatively due but not presently payable,

[by the contractors] in respect of the work undertaken by [Jovista Pty

Ltd] pursuant to Contracts 1073, 1075, 1077 and 1078: [the monies

in question referred to above as the ,,balance of the contract price

By reason of the matters referred to in paragraph (2) above as at

9 June 1997 the following monies were accrued due by [the

contractors] to [Jovista Pty Ltd] within the meaning of the Act:

[The monies set out in par (2) were then set out again]

By [separate] Notices of Demand to [the contractors] dated 9 June

1997, pursuant to s 10(2)(a) of the Act [Jovista Pty Ltd] demanded

payment of [various sums specified, in respect of ea ch of its 4

[The contractors have] failed to pay any part of the sums demanded

[2 days after the s 10(2)(a) demands] on 11 June 1997 [Jovista Pty

Ltd] lodged and obtained registration of Notices of Workmens

Liens, registered 361, 362, 363 and 364 (,,the Liens) in the General

Registry at Darwin, in respect of the monies referred to in paragraph

(2) above. [It can be seen that the liens were registered before the 7-

day period in s 10(2)(a) expired on 16 June. Proceedings to enforce

the liens commenced on 24 June, 1 day before the 14-day period in

[the defendant] was liable to make payments to [the

contractors] pursuant to the [their] Contract in respect of the

work performed by [Jovista Pty Ltd] under [its 4] Contracts,

which is the subject of [Jovista Pty Ltds] claims for payment

in these proceedings and in respect of which the monies

referred to above in paragraph [(2)] had accrued due.

Against this background of assumed facts and on the assumption that each of

the sums in pars (2) and (3) above became due (in the sense that each was

due and presently payable to Jovista Pty Ltd) pursuant to the terms of its 4

contracts with the contractors more than 28 days before the date (11 June

1997. on which it obtained registration of its liens, Bailey J referred to the

Court on 19 March 4 questions identical in effect to those referred by

I note that on the assumed facts demands under s10(2)(a) were made in all 3

proceedings; the part contract prices were all then payable. The liens were

all registered after the demands were made � in 2 cases after the 7 days in

s.10(2)(a) had expired, in the other case (No.136 of 1997) 5 days before that

expiry; it is the last-mentioned case which requires consideration of s 10(4).

In all cases the liens were registered more than 28 days after the part

contract prices became due under the respective contracts. In the light of

the assumed facts in pars [3], [4] and [5] the following 4 questions of law

Are the plaintiffs liens now, and were they at the time of

registration, unavailable to the plaintiff pursuant to section 10(1) of

the Act, by reason of the fact that the liens were registered more than

28 days after the contract price became due under the Contract

If ,,yes to (1), at the time of registration were the plaintiffs liens

available for the purposes of the Act, notwithstanding non-

registration within 28 days of the contract price becoming due under

the Contract Mining Agreement, by reason of the plaintiffs

compliance with the procedures set out in section 10(2) of the Act?

If ,,no [to (1)], what is the effect of unavailability [of the liens] on:

(a) the existence of a lien; and (b) the enforceability of a lien; and

Does the defendant, as grantee of Mineral Lease No. 1070 under the

Mining Act 1980 (NT), have an ,,estate or interest in land for the

I deal with Questions (1), (2) and (3) together in pars[7]-[57], and with

The answer to Question 1 entails consideration of the proper construction of

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

where the work is done, with the assent, express or implied, of

the owner or occupier to the land or to any fixture thereon;

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

(1) A lien under this Act with regard to land shall be available only

if registered before the expiration of 28 days after the wages or

contract price in respect of which such lien has arisen shall for the

(2) Any wages or contract price shall for the purposes of this section

if unpaid for 7 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

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

1966 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 with the Registrar-General a notice in the prescribed form or

in a form to a similar effect, which notice shall be signed by such a

person and attested, together with the prescribed fee.

(4) A lien may be registered after the wages or contract price have

become payable, although the 7 days mentioned in subsection (2)

(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

Courts in the Territory and South Australia have expressed different views

about the proper construction of s 10. To answer Question (1) in par [6], the

first question to be addressed is whether giving a notice of demand under

s 10(2)(a), (or the occurrence of one of the events in s 10(2)(b)), is essential

in order that a contract price ""shall ... have become due" for the purposes

of s 10(1). In other words, is s 10(1) dependent upon s 10(2), or are they

independent provisions? An associated question is whether registration of a

lien under s 10(4), without more, renders it ,,available in terms of s 10(1).

In other words, does s 10(4) provide a pathway to the availability and

enforceability of a lien, separate from that provided by registration after the

contract price has "become due" in terms of s 10(1)? Before considering the

parties submissions on these questions, it is convenient to review the

authorities where they have been discussed. First, the Territory authorities;

In Advanced Civil Engineering Pty Ltd v Wyara Pty Ltd (1986) NTJ 715

there had been a demand under s 10(2)(a) for an amount greater than the

amount certified in a progress certificate. The certificate, pursuant to the

contract, resulted in the part of the contract price so certified accruing due,

and so gave rise to a lien in terms of s 5. The s 10(2)(a) demand had been

made at a time when the certified amount, though "due", was not "payable"

in terms of the contract; for a demand under s 10(2)(a) to be valid, the

certified amount had to be payable at the time of the demand. A lien was

registered 12 days after the demand. Was the lien "available" � that is,

enforceable � in terms of s 10(1), despite the invalid s 10(2)(a) demand?

Asche J (as he then was) considered that it was, on the basis that a demand

under s 10(2)(a) was not necessary for the price to "become due" in terms of

s 10(1). He considered that it became due pursuant to the terms of the

contract, on the issue of the certificate. It can be seen that, in effect, his

Honour considered that when part of the contract price "accrued due" in

terms of s 5, it had thereby "become due" in terms of s 10(1). This is the

essence of the defendants case in this proceeding � see par [34].

At 745-7, Asche J opined that the provisions of s 10(1) are "independent" of

the provisions of s 10(2)(a), the latter being simply "one way ... of

determining when a contract price shall be deemed to have become due". In

other words, his Honour considered that a contract price could "become

due" for the purposes of s 10(1), other than via a s 10(2)(a) demand (or a

s 10(2)(b) event). His Honours opinion to that effect is the foundation

upon which the edifice of the defendants case is erected, in par [36]. Asche

J was not persuaded that the words "shall for the purposes of this section" in

both ss 10(1) and (2), point to s 10(1) being dependent on s 10(2); to the

"the repetition [of these words in s 10(2)] rather conveys the

opposite sense, that the purposes of [s 10(1)] are achieved if the

contract price is [either] actually due or can be deemed to be due".

With respect, I am unable to accept that construction of those words.

His Honour noted that his approach that ss 10(1) and 10(2) are independent

of each other, differed from that of Murray CJ in Millers Lime Ltd v Royal

Agricultural and Horticultural Society of South Australia [1936] SAStRp 57; [1936] SASR 306

at 314. Murray CJ there opined that to acquire a lien �that is, an "available"

lien, in terms of s 10(1) � payment must be due and either "the amounts due

must have been ascertained by a demand" under s 10(2)(a) and a failure to

pay the amount demanded within 7 days, or one of the events in s 10(2)(b)

had occurred "either before or after the seven days [in s 10(2)(a)] have

commenced to run or have expired (see 10(4))". It is clear that Murray CJ

saw 10(1) and s 10(2) as interdependent; Angas Parsons J agreed at 326.

That is to say, Murray CJ considered that a contract price would "become

due" for the purposes of s 10(1), only by the notice of demand procedure

under s 10(2)(a), or by the occurrence of an event specified in s 10(2)(b).

In Wyara Pty Ltd (supra) Asche J observed that this opinion of Murray CJ

on s 10 had been "gravely doubted" by Bray CJ in Albert del Fabbro Pty Ltd

v Wilckens & Burnside Pty Ltd [1971] SASR 121 at 127. With respect, that

does not appear to be so. Albert del Fabbro Pty Ltd (supra) involved a

charge under s 7 on money payable, as well as a lien under s 5. Bray CJs

"grave doubts" were as to whether it was necessary "for the perfection of the

charge ... that a demand should have been made within the meaning of

s 10(2)". This was a question of the proper construction not of s 10 of the

Act but of s 7(3), which provided that a charge under s 7(1) lapsed unless

"within 28 days after the ...contract price ... shall have become due

In Millers Lime Ltd (supra) both a lien and a charge were involved; in

addition to spelling out at 314 the "essentials" to acquire a lien Murray CJ at

315 spelled out the "essentials" to acquire a charge; he considered that s

7(3) required compliance with s 10(2) in the sense of making a demand. For

present purposes, the point is that the "grave doubts" expressed by Bray CJ

were directed at Murray CJs construction of s 7(3), not at his observations

as to the essentials to acquire an available lien under s 10. There is nothing

to suggest that Bray CJ doubted those observations, set out in par[11]. I note

in passing that in W. Curl & Sons Regd. v Buck Industries Pty Ltd [1972] 2

SASR 335 at 342 Hogarth J distinguished the position relating to a charge

claimed under s 7 from that of a lien, and disagreed with Murray CJs

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 42

NTR 1 involved seven proceedings. In one of them a progress certificate

had issued on 22 April; under the contract, payment of the amount thereby

certified to be due was to be made within 14 days. A demand under

s 10(2)(a) was made on 2 June. The lienee contractor lodged its lien for

registration on 2 June; this was more than 28 days after the certificate

issued on 22 April. The defendant lessee submitted that the amount had

"become due" for the purposes of s 10(1) when the progress certificate

issued on 22 April; and accordingly the lien was not "available", because the

28 days time limit for registration in s 10(1) had not been met. This is the

defendants submission, in par[34]. The basis of the lessees submission was

that the price could "become due" for the purposes of s 10(1), other than via

s 10(2)(a); this had been the approach of Asche J in Wyara Pty Ltd (supra) �

see par[10]. At 12-13 I differed from the approach of Asche J to the

relationship between s 10(1) and s 10(2). I considered that s 10(2) provided

the only means for fixing the date on which the contract price had "become

due", for the purposes of s 10(1). I rejected the submission that moneys

could "become due" for the purpose of s 10(1) in ways other than those

provided for in s 10(2). There was no consideration in this case of whether

s 10(4) provided a pathway separate to s 10(2), to an enforceable lien.

In Parob Pty Ltd v Pipeline Properties Pty Ltd and anor (1988) NTJ 1546

"...the limited but important function of stipulating when time begins

to run against a sub-contractor in whose favour a lien arises under

s 5, and who has not yet lodged notice of it for registration against

I observe that this construction of s10(1) does not accord with the accepted

view in South Australia � see pars [27] and [32] � that it provides

exclusively for when a lien becomes ,,available, and does so by req uiring

registration within 28 days of a date determined by a formula set out in

His Honour considered that the 28 days for registration in s 10(1) was not

to be reckoned from when the debt became ,,due and payable in the accepted

commercial sense of those words, but only from when it was deemed by

s 10(2)to have "become due" for the purposes of s 10(1). This was contrary

to the approach of Asche J in par [9]. Maurice J considered that in its

context, the word "due" in s 10(1) did "not bear its ordinary meaning"; with

respect, I agree. As to the concepts "due" and "payable", I note authorities

such as Re Sneesby; Ades and Bowes Contract [1919] VicLawRp 71; [1919] VLR 497 at 505-6

where Cussen J observed that "money may be due, although not presently

payable"; his Honour cited authorities which show that the meaning of "due"

in a particular statute is determined by the context. See to similar effect

Andrew v Arthur H. Dillon Pty Ltd (1942) 59WN (NSW) 113 at 114. I

respectfully agree with Cussen J; though the meaning of words in an Act

may appear to be clear when they are read in isolation, it is a cardinal rule

of statutory interpretation that they must be read in their context in the Act �

see K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR

Maurice J considered that ss 10(1) and (2) were interdependent when it came

to fixing the time when the "contract price ... shall ... have become due" in

terms of s 10(1). He preferred the view I had expressed to that effect in

Jennings Construction Pty Ltd (supra) � see par [13] - which he considered

to be "consistent with the weight of South Australian opinion", citing

Millers Lime Ltd v Royal Agricultural and Horticultural Society of South

Australia (supra), per Angas Parsons J at 326; Albert del Fabbro Pty Ltd v

Wilckens & Burnside Pty Ltd [1970] SASR 277 at 284, per Bright J at

instance and, on appeal, at [1971] SASR 121 at 138, per Zelling J; W. Curl

& Sons Regd. v Buck Industries Pty Ltd (supra) at 341, per Hogarth J; and

Palyaris Constructions Pty Ltd v Kauri Timber Co. [1980] 24 SASR 41 at

One argument raised was that the (first) lien registered by the plaintiff

subcontractor had been valid, though registered before a demand was made

under s 10(2)(a) on the defendant head contractor as "the person liable to

pay the same". This gave rise to a consideration of s 10(4). Consistently

with his view that the commencement of the time-limit in s 10(1) was fixed

only via s 10(2), and that s 10(1) was limited to ,,stipulating when time

begins to run, Maurice J considered that a lien could be registered under

s 10(4) without triggering the 28-day time limit in s 10(1), and that no

demand under s 10(2)(a) was ever required when a lien was registered under

s 10(4). His Honour considered that a lien "arises [that is, it comes into

existence] when the conditions of s 5 are met" but "it may only be enforced

if registered"; I observe that that now appears to be the accepted view.

Section 10(4), in his opinion, enabled a li enee to register his lien "at any

time after the lien arises [under s 5]" and the contract price becomes

payable, thereby protecting himself against "the risk that the registered

proprietor will deal with the land" and thus defeat "the statutory charge [by

way of an unregistered, though existing, lien]". I accept that. In effect,

his Honour saw s 10(4) as providing a pathway to enforcing a lien, separate

to that provided by s10(1) read with s 10(2). This does not accord with the

current approach in South Australia � see par [14] � which sees s10(1) as

providing the solitary path to lien availability and enforcement. His Honour

considered that whether a lien was registered under s 10(4), or registered in

accordance with s 10(2)(a), enforcement action under s15 had to be brought

within 14 days after registration, if the lien was not to cease; I observe that

that appears to be the accepted view, though the South Australian approach

� see par [32] � requires that a s10(2)(a) notice be given even where

In Sitzler Bros Pty Ltd v DKB Investments Pty Ltd (1989) NTJ 345, a

demand under s 10(2)(a) was made on 29 August 1988, and liens were

registered 25 days later, on 23 September. Inter alia, the defendant

contended that the monies payable had "become due" in terms of s 10(1)

more than 28 days before the liens were registered, relying on the approach

of Asche J in Wyara Pty Ltd (supra). That was the defendants argument

here, in par [34]. Martin J (as he then was) rejected that approach, holding

that for the purposes of s 10(1), the contract price will "become due" only

Pipeline Properties Pty Ltd v Leichhardt Development Co Pty Ltd (1989) 58

NTR 17 involved an application to cancel the registration of a lien. It had

been registered under s10(4) seven days before a demand was made under

s 10(2)(a); enforcement action under s 15 was then instituted before

expiration of the 7-day period in s 10(2)(a) which determined when the

contract price was deemed to have "become due" for the purposes of s10(1).

Was the enforcement action valid? I approached the matter as follows. The

contract price would "become due" for the purposes of s 10(1) only if either

par (a) or (b) of s 10(2) were complied with. That is to say, s 10(1) and (2)

were interdependent, in determining when the price would "become due" for

the purposes of s 10(1). Setting aside s 10(4), when a demand was made

under s 10(2)(a) a lien had to be registered (and thus became available for

enforcement) within the 28 day period commencing 7 days after the demand,

when the contract price was deemed to have ,,become due. Since here the 7

days had not elapsed when enforcement action was instituted, the price had

not then "become due" and registration of the lien and its availability for

enforcement were not open at that time. I considered that if ss10(1) and (2)

were the only controlling provisions the demand had to be made and 7 days

had to have expired, before the lien could be registered and action instituted

to enforce it. Since enforcement action was not open at the time it was

instituted the action would fail, unless the lienee could "rely on some other

provision of the Act". (I should say that I think Mr Maurice QC is right,

that "lienee" is the correct term for the lien holder, though the cases usually

This led to a consideration of the effect of s 10(4). I considered at 20 that a

lienee could register his lien pursuant to s 10(4), without any prior

s 10(2)(a) demand, provided the contract price had "become payable". This

was simply what s 10(4) provided, and it was what appeared to have

occurred here. I considered "with great diffidence" that no s 10(2)(a)

demand had to be made, following a s10(4) registra tion. In the result I held

that the application to cancel the registration of the lien failed, because the

question whether the contract price had ,,become payable in terms of s 10(4)

could not be determined at that time. This approach followed that of

Maurice J in Parob Pty Ltd (supra), that s 10(4) provided a pathway to

enforcing a lien separate to that of s 10(2). Implicit in this approach was the

,,single function view of s 10(1) he had expressed in par[14], and its

corollary that availability of a lien (in the sense of its enforceability)

depended simply on the fact of registration before expiration of the time

Dismissing the appeal � see Leichhardt Development Co Ltd v Pipeline

Properties Pty Ltd (1989) 62 NTR1 � Asche CJ and Angel J agreed that a

s 10(2)(a) demand was not essential to support registration of a lien.

Asche CJ remained of the same opinion he had expressed in Wyara Pty Ltd

(supra) - see par[10] - that s 10(1) and 10(2) were independent of each other,

not interdependent; Angel J shared that view. He considered that s 10(2)(a)

did not institute the procedure which had to be complied with before a lien

could be enforced; rather it was "facilitative", in the special sense that it

provided a procedure which enabled the contractor or sub-contractor to

convert moneys payable in the future to him under the contract to moneys

payable to him immediately, for the purposes of s 5. I observe that this

approach construes the meaning of the words "being payable" in s 10(2)(a),

as extending to "being payable in the future", a construction which, with

respect, I do not consider in their context those words can bear; cf par[28].

His Honour considered that the time limit of 28 days in s 10(1) commenced

either from the time when the moneys became immediately payable as a

consequence of the contractual arrangements, because the lien was then

"immediately registrable" under s 10(4), or from the expiry of 7 days after

service of a s 10(2)(a) notice if that procedure were used, or on the

happening of one of the events in s 10(2)(b). His Honour considered that

while the words "for the purposes of this section" in s 10(1) could

encompass the s 10(2)(a) procedure, they necessarily encompassed the

registration procedure in ss 10(3) and 10(4). Asche CJ and Angel J both

agreed with the construction of s 10(4) set out in pars[17] and [20]; I

observe that that construction sat well with their basic view that ss 10(1) and

Rice J, dissenting, considered that (apart from a s 10(2)(b) event), a demand

under s 10(2)(a) was the condition precedent to a lien becoming "available"

in terms of s 10(1), for subsequent enforcement under s 15. This had been

the approach adopted by Murray CJ in Millers Lime Ltd (supra); see

par[11]. Rice J considered that a lien becomes "available" on registration

under s 10(1), only "after [the contract price] has also ,,become due"

pursuant to s 10(2)(a). His Honour followed what Bright J said at instance in

Albert del Fabbro Pty Ltd (supra) at 284, in that regard. He said that a

demand under s 10(2)(a) was a "necessary condition precedent to the

enforcement of the lien under s 15", citing in support what I had said in

Jennings Construction Ltd (supra). In that case, I had opined that s 10(2)

exclusively determined when a contract price had "become due" for the

purpose of s 10(1); however, I did not go on to consider whether a s 10(2)(a)

demand was a condition precedent to the enforcement of the lien.

In Malady Enterprises Pty Ltd v Colstar Pty Ltd (1991) NTJ 263 a lien was

lodged for registration under s 10(4) six days before a demand under

s 10(2)(a) was served, and more than 28 days after an invoice issued for

work done. The invoice date was conceded to be the date the contract price

was ,,payable. Gray J applied the majority view in Leichhardt Development

Co Ltd (supra), to the effect that a s 10(2)(a) demand was not mandatory to

fix the time when the contract price was to "become due", for the purposes

of s 10(1). His Honour considered at 266-7 that the time limit of 28 days in

s 10(1) for registration of a lien "must be capable of running from a date

other than [that] fixed" via a s 10(2)(a) notice. He opined that the

commencement date � in terms of s10(1), the date on which the "contract

price shall ... have become due"-was when "the relevant contract fixes the

time when the contract price becomes presently payable". In this case that

time was fixed by the invoice date; so on that date the price had "become

due", in terms of s 10(1). His Honour opined at 267 that it was

"commercially unacceptable" to construe the Act in such a manner that

"where a lien has arisen under Section 5, its registration may be delayed for

an indefinite period". With respect, bearing in mind the nature of the lien

when it arises under s 5, somewhat akin to a dormant or ,,floating charge, I

do not consider that the assessment that this consequence of such a

construction would be "commercially unacceptable", is correct; see s 32,

referred to in par [38]. At 268 his Honour opined that "the Act is concerned

to require that a lien is registered within 28 days of its birth"; that is, its

,,birth under s 5. That is the defendants argument in par[34]. His Honour

held at 269 that the purported registration more than 28 days after the ,,birth

of the lien under s 5 was "ineffective by reason of the non compliance with

Section 10(1) [in that the lien was registered more than 28 days after the

contract price became presently payable and hence had "become due"] and

[that defect] has not been cured by the subsequent Section 10(2)(a) notice."

That is the current state of the law on the construction of s 10 in the

Territory; it favours the defendants submissions in par[34]. In South

Australia the construction of s10 was last considered in 2 cases in 1991; I

In Marriott Industries Pty Ltd v Mercantile Credits Limited (1990) 55 SASR

228 a notice of lien was served on 28 April, and lodged for registration on

29 April. It was not registered within 28 days after the contract price

became due. It was accepted that there had been no prior demand under

s 10(2)(a). The defendant contended that the lien was not "available" in

terms of s 10(1) because it had not been registered in compliance with s 10,

in that no demand under s 10(2)(a) had been served. Its submission was

simple: "Because no [s10(2)(a)] demand has been served, no lien arises".

The lienee submitted that while the contract price became due 7 days after

invoice, the lien had been duly registered and enforceable under s 10(4).

Prior J held that s 10 of the Act is not a Code, in that it does not provide the

only method of calculating when a contract price has "become due for the

purpose of the Act"; he agreed with the approach of the majority in

Leichhardt Development Co Ltd (supra) � see par[21] - that the Act provides

in s 10(2)(a) a method for doing so. His Honour rejected the defendants

submission; implicitly, he took the same approach to s10(4) as in pars[17]

The Full Court allowed the appeal; see (1991) 160 LSJS 288. The question

was whether the lienee subcontractor had had a valid claim to enforce the

lien, immediately prior to its cancellation. King CJ reviewed the authorities

and considered that s 10(2) should not be construed as ,,facilitative in the

sense used by Angel J in Leichhardt Development Co Ltd (supra) at par[21].

His Honour considered that "available" in s 10(1) meant "capable of

enforcement by action" and "available as a security"; I respectfully agree.

Vitally, his Honour considered that a s 10(2)(a) notice has to be given, and

the 7 days in that provision has to have expired, before a lien already

registered under s 10(4) becomes "available" in terms of s 10(1). In other

words, his Honour considered (as had Murray CJ in Millers Lime Ltd

(supra)) that, setting aside any s 10(2)(b) event, a notice under s 10(2)(a)

always had to be given, if a lien under the Act were to be ,,available and

His Honours reasoning was as follows. Placing his "own interpretation" on

the provisions of the Act because of the "great...variety of judicial

opinions" and hence lack of "any definitive guidance", he considered that

s 10(1) imposed a dual requirement for a lien to be "available". First, the

contract price had to "have become due" for the purposes of s 10(1), in

manner provided for by s10(2). Second, registration of the lien had to be

effected within 28 days after that price had "become due" in that manner. I

note, by way of contrast, the single function attributed to s 10(1) by Maurice

J in Parob Pty Ltd (supra); see par [14]. King CJs approach accorded with

the unreported decision of the Full Court of the Supreme Court of South

Australia in Giles v Jacob in 1909, referred to in Pitt Ltd v The Corporation

of the Town of Glenelg [1927] SAStRp 37; [1927] SASR 501 at 534-5. In Giles v Jacob a lien

had been registered without a demand made under s 10(2)(a), an action was

brought to enforce the lien, and then a s 10(2)(b) event occurred. Way CJ is

reported to have expressed his opinion on s 10 tersely and comprehensively,

"Two things were necessary before the lien became available [in

terms of s 10(1)]. One was that money became due, and the second

was registration. The meaning of becoming due was that the money

must be payable, and unpaid after being demanded. There was a

registration [under s 10(4)] of 4 October, which should have been

Way CJ held that because no demand under s 10(2)(a) had been made, the

lien registered under s 10(4) was not ,,available. This approach and

decision may be contrasted with those in Parob Pty Ltd (supra) at par[17],

Pipeline Properties Pty Ltd (supra) at par [20], Leichhardt Properties Pty

Ltd (supra) at par [21], and Malady Enterprises Pty Ltd (supra) at par [23].

King CJ considered that on its "natural construction", s 10(2) defined the

words "become due" in s 10(1); this is somewhat akin to Mr Maurices

approach at par [42]. Since to be the subject of a demand under s 10(2)(a)

the (unpaid) contract price, or part of it, had to have the quality of "being

payable", it must already have "accrued due", in terms of s 5; I respectfully

agree � see below and par [40]. Accordingly - and this is a vital step in his

Honours reasoning - the only "intelligible purpose" of s 10(2)(a) was to

impose "an additional pre-condition [by way of the demand, the others

being that the price had already "accrued due" and "was payable"] to the

right to enforce a lien, or to rely upon it as security" (emphasis added). I

note that this was what Way CJ meant in par [27] when he said: "The

meaning of becoming due [in s 10(1)] was that the money must be payable,

and unpaid after being demanded." King CJ observed that while money can

be "due" but not "payable", the reverse cannot obtain; I note that was also

the view of Napier J (as he then was) in Metropolitan Brick Company v

Haywood [1938] SAStRp 57; [1938] SASR 462 at 468. Money which is "payable" is money

which must be paid � "it is due, and the time for payment has arrived"; I

respectfully agree. His Honour considered that to say that money is

"payable in the future" is really to say that it is not yet payable; cf. the

approach of Angel J to the words "being payable" in s 10(2)(a) in par[21],

His Honour had then to take account of the role of s 10(4) in the general

scheme of s 10. Clearly, he considered that it was ancillary to the scheme

embodied in s 10(1) and 10(2), as he perceived it in pars[26] - [28]. He

accepted that s 10(4) permitted registration of a lien at any time after the

contract price had "become payable", even though the 7 days in s 10(2)(a)

had not "commenced to run". Vitally, he considered that such registration

under s10(4) did not mean that the lien thereby became ,,available in terms

of s 10(1). Despite registration under s 10(4), the lien could not be enforced

(that is, it was not "available"), or even operate as the ,,deemed caveat

contemplated by s 12, until a s 10(2)(a) notice had been given and the 7 day

period contemplated by s 10(2)(a) had expired. This approach to s 10(4) is

in marked contrast to that of most Judges in the Territory thus far - see

pars[17], [20] [21] and [23] � though it accords with that of Rice J,

dissenting, in par[22]. King CJ accepted that his construction of s 10(4)

presented problems in assigning any "useful purpose" to the requirement

(on his approach) that a s 10(2)(a) demand for payment still had to be made

after registration of the lien under s 10(4). However, he considered that the

difficulties in discerning the purpose of s 10(2)(a) would be greater, if it

were construed as ,,facilitative in terms of par[21].

Olsson J, with whom Mohr J agreed, observed that the "weight of decided

authority" in South Australia ran "heavily counter to the conclusion of

Asche CJ" in Leichhardt Development Co Ltd (supra) � see pars[10] and

[21] � that s 10(2)(a) was merely one method of calculating when the

"contract price...shall... have become due" in terms of s 10(1). His Honour

reviewed those authorities, which were mainly those listed by Maurice J in

Parob Pty Ltd (supra) at par[16]. He considered at 310 that the proposition

that s 10 (4) "in some way stands alone" from s 10(1) and (2) and

"authorises the enforcement of a lien otherwise than as envisaged" by those

provisions, was unwarranted both in terms of "the authorities binding upon

this court" and as a matter of construction. In his opinion s 10(4) merely

permitted "the provisional registration of a notice of lien prior to the i ssue

of a formal notice of demand" under s 10(2)(a), "so as to give notice of the

claim and to protect the position of a proposed lienor during the seven day

period envisaged by" s 10(2). This conception of registration under of

s 10(4) as "provisional" in nature stands in marked contrast to that of most

of the Judges in the Territory who have considered the matter; see pars [17],

I note that on 5 September 1991 the High Court refused special leave to

appeal from the Full Courts decision in Marriott Industries Pty Ltd (supra).

Brennan CJ observed that the Act was "generally acknowledged to raise

extreme difficulties of interpretation"; however, since its interpretation was

"largely a matter of judicial impression", his Honour considered tha t a grant

of special leave would not be "likely to lead to the elucidation of any

In Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1991)

160 LSJS 270 King CJ expressed views on the Act similar to those he had

expressed earlier that day in Marriott Industries Pty Ltd (supra).

His Honour said that he was unable to agree either with the decision in

Leichhardt Development Co Ltd (supra), or with the dictum of Angel J at

par[21] that s 10(2)(a) was ,,facilitative. At 27 6 he set out his understanding

of the relationship of ss 5, 6 and 10, and the scheme of the Act with respect

"... a contractors or sub-contractors lien can only arise when the

lienors title to the debt has accrued under the terms of his contract

(section 5), although it may arise notwithstanding that the debt,

having arisen, is payable in the future. The extent of the lien is

limited by section 6 to the amount due and presently payable by the

owner or occupier under the contract for the purpose of which the

work was done or the materials supplied. In a situation in which a

lien which has arisen because an amount has accrued due under the

contract, but there is no amount presently payable by the owner or

occupier, the lien is dormant until an amount becomes so payable.

Although a lien has arisen by reason of the contract price or part

thereof having accrued due under the terms of the contract, it is not

"available", that is to say "not capable of enforcement" or "valid as

a security", until it has "become due" for the purposes of section 10.

That will occur if one or other of the events enumerated in section

10(2)(b) has occurred, or if the price is unpaid for seven days after

notice has been given under section 10(2)(a). That notice can only

be given validly after the price is payable, that is to say after the

entitlement has arisen under the contract, thereby bringing the lien

into existence, and the time for payment has arrived. The lien, if it

has acquired a valid existence by reason of the price having accrued

due, [and if the price has become payable], may be registered

pursuant to section 10(4) prior to the section 10(2)(a) notice, but the

action to enforce it cannot be commenced until the lien is

His Honour is clearly saying in the passage last emphasized that where a

lien is registered under s 10(4) its enforcement (which s 15 requires to be

instituted "within 14 days from [that] registration" )cannot be effected until

expiry of 7 days from the essential s 10(2)(a) demand because, as

his Honour spells out in the passage first emphasized, only by the price

having "become due" by the s 10(2) procedure, does the lien become capable

of enforcement under s 15. I note that this could create some practical

I note in passing that in Ginos & Associates Ltd v Accordent Pty Ltd

(unreported, Supreme Court of South Australia (Full Court), 23 December

1998. the Full Court, having cited the views of King CJ on ss 5 and 10 of

the Act in Longreef Pty Ltd (supra), observed that the correctness of that

authority was not challenged in that appeal "nor ... could [it] have been".

Against this review of the differing approaches in the courts, I turn to the

The ultimate submission of Mr Gee QC, senior counsel for the defendant,

was as follows. The contract price ,,accrued due on 15 November 1997. On

the proper construction of the Act the lien which thereby arose under s.5 of

the Act, had to be registered within 28 days after that date, and not within

28 days after a date determined by s 10(2). This admittedly had not

occurred. It followed, in his submission, that Questions (1)-(3) in par[6]

should be answered: (1) ,,Yes; (2) ,,No; and (3) ,,The lien is unavailable and

He submitted that because the Act had become an enactment of the Territory

in 1991, rather than, as hitherto, an Act of South Australia in force in the

Territory, ss 55, 62A and 62B of the Interpretation Act applied to its

interpretation. I accept that, assuming that it is in force.

As to the proper construction of s 10, on which his ultimate submission in

par[34] was based, he had 3 submissions. First, there was no difference in

meaning between the expressions "accrued due" in s 5, and "become due" in

s 10(1). The dueness - the quality of being due - in s 10(1) was the same

dueness which was the "essential characteristic" of the liens existence

under s 5. I note that at the heart of the opposing construction advanced in

pars [43] and [49], is the concept that "become due" in s 10(1) bears a

special and artificial meaning, quite different from the use of "due" in s 5

where it bears its usual meaning; and that that special meaning is determined

exhaustively by s 10(2) "for the purposes of" s 10(1). Mr Gee submitted that

in the authorities which suggested that there was a difference between the

meaning of "accrued due" in s 5 and "become due" in s 10(1), that

difference had simply been assumed to ex ist; however, I note the reasoning

of King CJ in Marriott Industries Pty Ltd (supra) at par [28]. Mr Gee

submitted that, lexicologically, "accrued" and "become" have the same

meaning; I observe that while that there is merit in that point in the abstract ,

these words need to be read in their respective contexts in s5 and s10(1) of

the Act. He submitted that the structure of s 10(1) also supported his

submission, because it focused on the dueness of the contract price, not on

its payability. I consider that this does not really address the opposing

submissions in pars [43] and [49] that "become due" is used in a special

sense in s 10(1); further, the price must already have been payable � and

hence already ,,due in the s5 sense - if s 10(2)(a) is utilized to deem it to

have "become due" for the purposes of s10(1), and this fact alone suggests

that the ,,dueness in s 10(1) is of a special quality, different to that in s 5.

Second, Mr Gee submitted that as a corollary of the suggested identity in

meaning between "due" as used in ss 5 and 10(1), once a contract price (or

part of it) has "accrued due" under s 5, the 28 days time limit in s 10(1) for

registration of the lien (which ex hypothesi has arisen under s 5)

immediately starts to run. I agree that if the premise is correct, this

Third, Mr Gee addressed a matter the true significance of which bore on the

role and function of s 10(4). He submitted that the availability of the lien

provided for in s 10(1) - that is, its enforceability � does not depend on the

dueness of the contract price, but only upon the fact of registration of the

lien. The dueness of the price is significant in s 10(1) only insofar as it

fixes the commencement of the time within which registration must be

effected, apart from registration under s 10(4). It can be seen that this

submission accords with the construction advanced in Parob Pty Ltd (supra)

at par [14]; see also pars [20], [21] and [46]. It is contrary to the

construction favoured by King CJ in Marriott Industries Pty Ltd (supra) and

Longreef Pty Ltd (supra) at pars[26]-[28] and [32]. King CJ saw s 10(1) as

imposing a dual requirement for a lien to be ,,available: both dueness of the

contract price (in a special sense of "due", which entailed a demand for

payment under s 10(2)(a) of a payable price, or a s 10(2)(b) event) and

registration of the lien, were required. Mr Gee rightly noted the "head-on

conflict" between the construction he advanced, and that in the passage first

He noted that it was implicit in King CJs construction in par[32]that a

lienee was under no time restriction within which to serve a notice of

demand under s 10(2)(a), so as to create the necessary dueness for the

purposes of s 10(1). As to that suggested lack of any time limit on taking

action under s 10(2)(a) to trigger the process of lien registration and

enforcement, he submitted that the Act elevated a lienee, simply an

unsecured creditor, to a special position of preference; the quid pro quo was

that it also contemplated that he would take timely steps to register and

enforce his lien, once it came into existence under s 5. On Mr Gees

construction, 28 days from ,,birth of the lien under s5 was allowed. He

submitted that if the lienee were not required to take timely steps after the

,,birth of his lien, the owner would have no timely means of testing the

validity of the lien, or clearing it off his title by depositing money under

As to this submission, I note that s32 of the Act enables the owner to take

action at any time if he claims that he has been "prejudicially affected by a

claim, lien, or charge, or by registration under [the] Act". Mr Gee noted

that all the modern authorities considered that a lien came into existence

pursuant to s 5, before it was registered; I agree - see, for example, pars [17]

and [32]. He submitted that s 10 carefully distinguished between a contract

price having "become due" in s 10(1), and its "being payable" or having

"become payable"; and that for the price to have "become due" connoted

only that the monies were owing, under the contractual arrangements. I

accept the first point but I do not consider that it necessarily assists

Mr Gees argument; as to the second � which really restates his first

submission in par [36] - I consider (as indicated in par [36]) that the "being

payable" precondition in s 10(2)(a) suggests that "become due" in s 10(1)

connotes not only that the monies ,,due are owing under the contract, but

The effect of s 10(4) is a live issue in proceedings No. 136 of 1997; see

par [6]. Mr Gee submitted that s 10(4) was subordinate to the ,,fundamental

structure of s 10, which required registration of the lien under s 10(1) if it

were to be ,,available. Registration under s 10(1) had to be effected within

28 days of the dueness of the price (in the sense of ,,dueness he had outlined

in par[36]), not of its payability; he noted by way of contrast that action

under s 10(4) turned on the ,,payability of the price. I noted in par[36] that

the fact that s 10(2)(a) required payability as a condition precedent to its use

in determining when the price "becomes due" in terms of s 10(1), is a matter

which militates against Mr Gees submission that ,,dueness is used in its

He submitted that s 10(4) had only a limited role in the Act, namely to

enable a lienee who contemplated making a demand under s 10(2)(a)

immediately to register his lien without waiting for the 7 days prescribed by

s 10(2)(a) to commence or elapse. He submitted that such a registration did

not attract availability to the lien; that quality was a creature exclusively of

s 10(1). Section 10(4) did not provide a path to availability (in the sense of

enforceability) of the lien, separate from s 10(1) and unfettered by the 28-

day time limit in that provision. In this last respect Mr Gees submission

was not in accord with views as to s 10(4) expressed in some of the

Territory cases � see pars[17], [20] and [21] � and accorded with the

approach to s 10(4) in the South Australian cases � see pars[29], [30] and

Mr Gee rightly conceded that the requirement in s 10(2)(a) that the price be

already "payable", presented problems for his submission that its function

was to provide for a "notional dueness", in the sense he attributed to

,,dueness in s 10(1) in par[36] � its ordinary sense, as in s 5. In my opinion

it is clear that if a price is "payable" it must also be "due", in the ordinary

sense of that word; see pars [15] and [28]. To my mind the requirement in

s 10(2)(a) that the price be then "payable" presents an insuperable obstacle

to Mr Gees submission as to the function of s10(2)(a). The ,,payable

requirement in s10(2)(a) requires that the price be already due (in the

ordinary sense of ,,dueness) before s 10(2)(a) can be utilized, yet Mr Gees

submission is that s.10(2)(a) is used to determine that the price has "become

due" (in the ordinary sense of ,,dueness) for the purposes of s 10(1). That

cannot be right. I consider that the requirement of payability in s 10(2)(a)

strongly favours a construction that in the phrase "shall for the purposes of

this section have become due" in s 10(1) (followed by the deeming provision

in s 10(2)) the legislature treated "due" in s10(1)as having a meaning "for

the purposes of" s 10 other than the ordinary meaning it bears in s 5.

In a linked submission, Mr Gee submitted that the word "deemed" in s 10(2)

is used to create a "fictional dueness" in the ordinary sense he attributed to

,,due in par[36]. I consider that there is no scope for such a construction of

"deemed", again because a price which is "payable" as required by

s 10(2)(a) must in reality already be due, in the ordinary sense of ,,due; see

par[40]. In my opinion, the word "deemed" in s 10(2) in its context is

equivalent to the word "adjudged". It does not create a statutory fiction of

the type discussed, for example, in Loizos v Carlton United Breweries Ltd

(1993-94) 94 NTR 31 at 32-3. It extends the denotation of "become due" in

s10(1) to what those words would not in ordinary parlance denote; it infuses

"become due" in s 10(1) with meaning, by designating what that term there

comprehends. I consider that "deemed" is used in s 10(2)(a) in an

exhaustive, rather than an inclusive, sense; adapting the words of Cave J (as

he then was) in The Queen v The County Council of Norfolk (1891) 60

L.J.Q.B. 379 at 381, it points to an intention in the legislature to confine

"become due" in s 10(1) to what it specifies in s 10(2), and not to go beyond

that. See generally on ,,deeming Muller v Dalgety & Co Ltd (1909) 9 CLR

693 at 696, per Griffith CJ; Hunter Douglas Australia Pty Ltd v Perma

Blinds [1970] HCA 63; (1969-70) 122 CLR 49 at 65-7, per Windeyer J; and Rowe v Hughes

[1974] VicRp 7; [1974] VR 60 at 68.

The submissions of the plaintiff Henry Walker Contracting Pty Ltd

The major submissions of Mr Maurice QC, of senior counsel for this

plaintiff, were as follows. The meaning of s 10(1) and s 10(2) was clear; it

was ascertainable simply from the words of those provisions, which were

used in their natural and ordinary meaning, a usage which did not lead to

any manifest absurdity. I note that many judges have not found the

language of the Act to be so clear. See Brennan CJs reference to its

"extreme difficulties of interpretation" in par [31]. In Parob Pty Ltd (supra)

the learned judge referred to "a chorus of judicial protest about the

ambiguities and uncertainties attending many aspects" of the Act, which he

characterized as a "thoroughly discredited piece of legislation". In Pipeline

Properties Pty Ltd (supra) I referred to the Acts "fuliginous obscurity". In

Marriott Industries Pty Ltd (supra) Olsson J noted that the Act "has become

notorious for its difficulties of rational construction". In his judgment of

26 November 1998 leading to these proceedings Angel J referred to "the

enigmatic language of the Act", and "the muddy state of the authorities";

and in his judgment of 4 February 1999 Bailey J referred to "the obscure and

unsatisfactory nature of the antiquated" Act. That is a small sample of

adverse judicial comment on the Acts Delphic drafting.

Mr Maurice submitted that s 10(1) stipulated that a lien was not "available"

until it had been registered; this had to be effected in a timely way. Section

10(2) determined this timeliness, by fixing the date from which the 28-days

limit for registration under s 10(1) commenced, by determining when the

"contract price shall for the purposes of this section have become due".

"Become due" in s 10(1) was determined solely by s 10(2), and thus in

s 10(1) it was an artificial and technical concept. Sections 10(1) and 10(2)

were interdependent in that sense; this was made clear by the use of the

words "for the purposes of this section" in both provisions. The only

purpose of specifying a commencing time in 10(1) via 10(2), however, was

to fix the outer time limit within which the lien had to be registered.

Section 10(1), in providing for the commencement of that time -limit,

expressly contemplates that the "lien has arisen" with respect to the contract

price. That is clearly a reference to s 5. Thus s 10(1) proceeds on the basis

that the contract price has already "accrued due" in terms of s 5, when

setting out a formula to determine the commencement of the 28-days time

limit. It follows that since s 10(2) determines the time of commencement of

the 28-days limit "for the purposes of" s 10(1), in terms that require the

price already to have been "payable" (and hence ,,due in its s5 ordinary

sense), the 28 days could not begin to run from the earlier date when the

contract price had "accrued due" pursuant to s 5. Once s 10(2) is treated as

fixing the commencement of the s 10(1) time limit for registration, to

construe "become due" in s 10(1) as equivalent to "accrued due" in s 5 is not

I consider that this line of reasoning is compelling.

Mr Maurice submitted that the 28-days grace in s 10(1) for the lienee to

register his lien, commencing 7 days after a s 10(2)(a) demand, had not been

shown to cause any great inconvenience in practice. This was in contrast to

what would be the practical effect if the construction advanced by the

defendant in par[34] obtained. That would require any prudent unpaid

contractor or subcontractor first to register his lien within 28 days of each

instalment of the contract price accruing due under s 5, and then to issue a

court writ to enforce it within 14 days of such registration. I accept that

submission, and consider that such a nonsensical procedure could ne ver have

been intended by the legislature. As Jordan CJ said in Hall v Jones (1942)

[1942] NSWStRp 22; 42 SR (NSW) 203 at 208, a court should assume that the legislature

"intended to enact sense and not nonsense". The consequences of giving a

particular meaning to a provision in an Act are taken into account when

interpreting it; see Cooper Brookes (Wollongong) Pty Ltd v F.C.T. (1981) 35

ALR 151 at 169-170, per Mason and Wilson JJ. This consequence militates

against the construction of "become due" advanced by Mr Gee. Mr Maurice

noted that on the defendants construction of "become due" in s 10(1),

s 10(2) served no useful purpose; I accept that. He also submitted that the

only function of s 5 was to bring the lien into existence; I accept that.

Mr Maurice pointed out a further practical consequence of the defendants

construction of s10. A contract price which had "accrued due" in terms of

s 5, might often not be "payable" for more than 28 days thereafter. In such

a case, if the 28 days for registration were to commence from the date on

which the contract price had "accrued due", as the defendant contended, that

time would have expired before a lienee could lawfully register his lease

under s 10(4), or issue a demand under s 10(2)(a), since each of those

provisions required that the contract price first be "payable", in the sense

used by King CJ in par [28]. That is to say, in such a case, on the

defendants construction of s 10, the lienee could never register his lien

within time. I consider that this obvious practical consequence of the

defendants construction is one the legislature could never have intended to

occur. It also militates against the defendants construction of "become

Mr Maurice submitted that s 10(4) was unnecessary, in the scheme of

s 10(1) and (2). Its function was to enable a lien to be registered after the

contract price had "become payable" (and hence after it had also ,,accrued

due in terms of s 5), even though no s 10(2)(a) demand had been made.

When the lienee adopted this course, th e lien became immediately

"available" in terms of s 10(1), following its registration, because

,,availability under s 10(1) turned only on the fact of registration; cf the

approach of the defendant on this point in par [39], and of Jovista Pty Ltd in

par [50]. For this reason, after registration had been effected under s 10(4),

there was no need - and no requirement - that a demand under s 10(2)(a)

then be made, before the lien became ,,available under s 10(1). It was

It can be seen that Mr Maurice agreed in this last respect with Mr Gees

third submission, in par[37]; the submission also accords with the approach

in pars [17], [20] and [21]. It will be recalled that he had submitted that the

commencing date for the s 10(1) time-limit could only be determined

pursuant to s 10(2); see par[43]. He now submitted that a registration

pursuant to s 10(4) would necessarily have been effected before the 28-days

time limit in s 10(1) would have expired, had the s 10(2) procedure been

adopted. That is to say, a registration under s 10(4) would always be within

the s 10(1) time limit for registration; a s 10(4) registration must always

occur "before the expiration" of the time limit, as required by s 10(1).

That appears to be correct, accepting the notional element involved : absent

a s 10(2)(a) notice or a s 10(2)(b) event, there is no actual commencing date

for the 28-days time limit for registration in s 10(1) (on Mr Maurices

approach in par [43]), and hence no actual period of time within which

s 10(1) requires registration. It is implicit in the present submission as to

s10(4) that ss 10(1) and 10(2) do not require that the process which they

spell out in detail, designed to determine the commencement of the 28-day

period which s 10(1) specifies, actually be carried out, before a lien

becomes ,,available. Mr Maurice rightly conceded that on this construction

I note that this approach to the function and effect of s 10(4) follows that

spelled out in some of the Territory cases, in pars[17], [20] and [21]. It

does not accord with the current South Australian view, expressed in

pars[30] and [32], to the effect that before a lien can be "available"

following registration, the contract price m ust also have "become due", via

the deeming provision in s 10(2). I note that in Pitt Ltd (supra) at 521 and

534, Richards J appeared to take the same approach to s 10(4) as that

advanced by Mr Maurice. Mr Maurice conceded that the reference to

s 10(2)(a) in s 10(4) might suggest, implicitly, that s 10(4) contemplated

that a s 10(2)(a) demand must issue, following registration under s 10(4).

Mr Collins QC of senior counsel for this plaintiff submitted generally that

the Act made it clear that the mere fact that a contract price was not paid on

the day on which it was payable, did not permit the lienee immediately to

enforce his lien. Rather, the Act contemplated that a lien was not

enforceable unless notice was first given. The rationale for this was that by

creating the statutory lien the Act elevated the right in personam of an

unpaid contractor or sub-contractor to a security right, and required as a

quid pro quo of that elevation that notice be given.

Mr Collins approach was broadly that adopted by King CJ in par [32 ]. He

submitted that, setting aside s10(4), the Act contemplated the existence of 3

steps in a time continuum, and its provisions proceeded upon that basis; I

note the similar reference to ,,sequence by Bright J in Albert del Fabbro Pty

Ltd (supra) at 284. First, in time, the lien for the contract price arises under

s5, so far as it has then "accrued due". Second, the price which has

"accrued due", becomes "payable". These first and second steps could be

coterminous; that depends on the particular contractual provisions. In s 10

"payable" is used in the sense of "presently payable"; I agree. He submitted

that ,,payability in this sense is a precondition to availability of the lien in

terms of s 10(1), unless a s 10(2)(b) event occurs � in which event

registration must be effected within 28 days from that event.

He submitted that apart from a s 10(2)(b) situation, the lienee is under no

compulsion as to the time within which he must re gister his lien (to enforce

it, to obtain the price presently payable to him). He may choose to register

under s10(4) immediately the price becomes payable, to avoid the risks

referred to in par[17]; he may choose to issue a demand under s 10(2)(a). I

note that, on this approach to the construction of ss5 and 10, the lienee may

choose to do nothing at all, and his lien (which has arisen under s 5) would

He submitted that bearing in mind the need for notice to be given be fore

enforcement (as per par [48]), the Act required that this (presently payable)

contract price "become due" in s 10(1) before the lien could be registered.

The Act then proceeded "for the purposes of" s 10, to spell out in s 10(2)

what "become due" means, the third and final step in the time continuum

leading to lien enforcement. The word "deemed" as used in s 10(2)

emphasizes that "become due" in s 10(1) is used in a special sense "for the

purposes of" that provision. Once the price has "become due" in this special

sense, the lienee has to register his lien within 28 days, and enforce it within

14 days of registration if it is not to cease. As I have already sufficiently

indicated, I am persuaded that this is the proper construction of ss 10(1) and

Mr Collins submitted that the sole purpose of registration under s 10(4)

served a purpose ancillary to that of s 10(1) and 10(2): to enable speedy

registration, so as to secure the priority which s 9 gave to a registered lien.

Section 10(4) was not concerned with the availability of the lien; that was

provided for in s 10(1), and could only be triggered by action under s 10(2).

The practical result was that a lienee who had registered his lien under

s 10(4), had of necessity to make a prompt s 10(2)(a) demand to avoid

cessation of the lien. The practical effect of this construction of ss.10(4)

was to reduce the 14-day period in s 15 to 7 days (or less). I note, for

example, that if the lienee did not make a s 10(2)(a) demand until 8 days had

elapsed after his s 10(4) registration, the further 7 days which s 10(2)(a)

required then to elapse would mean that he could not take enforcement

action within 14 days of the registration, as required by s 15, and his lien

would then cease. It will be noted that this construction of s 10(4) differs

markedly from that of Mr Maurice in par[46]. Mr Collins submitted that the

concluding words in s 10(4) � "although the 7 days mentioned in subsection

(2) shall not have commenced to have run" � expressly recognised the

central importance of the notice under s 10(2)(a) for the purpose of fixing

the commencement of the 28-day time limit in s 10(1), and hence (on his

approach) for determining the availability and enforceability of the lien.

Against the background of these submissions, Mr Collins submitted that the

concept of "become due" was the mainspring of s 10(1), including the

availability of the lien provided for therein. It can be seen that the

construction of s 10 advanced by Mr Collins accords generally with that of

Mr Collins submitted that even if the Court did not favour this construction,

in the interests of comity it should now adopt it, to maintain uniformity with

the construction of the Act in South Australia in Marriott Industries Pty Ltd

He submitted that the defendants construction meant that many words in

s 10 could not be assigned a meaning. Further, in effect, that construction

not only equated "become due" in s 10(1) with "accrued due" in s 5, but also

He submitted that this plaintiffs liens were validly registered and available,

because the 28-day period in s 10(1) begins to run only after the contract

price has "become due" under s 10(1), via s 10(2). On the assumed facts in

par[5] the price had "accrued due" and become payable on 9 June; a

s 10(2)(a) demand was then made on 9 June; the "accrued due" price had

accordingly "become due" 7 days later on 16 June, for the purposes of

s 10(1); and on 11 June registration of the lien had been effected under

s 10(4), before the 28 days time limit commencing 16 June expired on

14 July. The fact that under the contractual arrangements, the price was due

and payable by the contractors more than 28 days before the registration on

11 June, was simply irrelevant. Accordingly, he submitted that Questions (1)

� (2) in par [6] should be answered: (1) ,,No; and (2) ,,Provided notice was

given in accordance with s 10(2) of the Act, yes. Mr Collins did not

The various submissions show that what is in issue is the construction of

provisions in the Act which are susceptible of more than one meaning. No

construction of s 10 is wholly satisfactory. It will always be possible to say:

"If construction X is adopted, section Y has no work to do". So it is for

example, with s10(2)(a), if the construction of s 10(4) in par [46] is adopted;

cf. pars [28] and [29]. In general, a statute s hould be so interpreted as to

give all its provisions some meaning and effect. Nevertheless, this may on

occasion be impossible; this is one of those occasions. The duty of the

Court in such circumstances is to give the Act the construction, fairly open,

which produces the more reasonable result; that is, the construction which

"produces the greatest harmony and the least inconsistency" as Cooper CJ

put it in Australian Alliance Assurance Co Ltd v Attorney-General (Qld)

[1916] St R Qd 135 at 161.

I adopt that approach. I have already sufficiently indicated when going

through the submissions, the general view I take. I consider that the better

construction of s10 is that favoured by King CJ in Longreef Pty Ltd (supra),

set out in par[32]. I think that this construction best expounds the Act

according to the intent of the legislature, best promotes the underlying

purpose of s 10, and results in a fairer and more convenient operation of the

Act as a whole, bearing in mind its general object and purpose. There is

nothing novel about this construction; it was tersely and accurately stated by

Way CJ 90 years ago in Giles v Jacob; see par [27].

As to Mr Collins point on comity, in par[52], I consider that it is generally

desirable that there be conformity in the construction of an Act which is in

identical terms in both the Territory and South Australia; see Camden Park

Estate Pty Ltd v OToole (1969) 72 SR (NSW) 188 at 190. However, on the

approach I take, that aspect does not arise. I consider, with respect, that the

construction of ss 10(1) and (2) favoured in Wyara Pty Ltd (supra), by the

majority in Leichhardt Development Co Ltd (supra), and in Malady

Enterprises Pty Ltd (supra), is erroneous; so is the limited construction of

s 10(1) in Parob Pty Ltd (supra); and so also is the construction of s 10(4) in

Parob Pty Ltd (supra), in Pipelines Pty Ltd (supra) and, on appeal, by the

majority in Leichhardt Development Co Ltd (supra). I would answer

Questions (1) � (3) in par[6]: (1) ,,No; (2) ,,Not applicable, but clearly the

answer to the substantive question is ,,Yes; (3) ,,This question does not

require answer. I deal next with Question (4), in pars [58] to [66].

Mr Gee submitted that neither the Mining Act nor the Mt Todd Project

Agreement Ratification Act 1993 (herein "the Ratification Act") expressly

provided that a Mineral Lease involved the grant of an ,,estate or interest in

land. I accept that. I note that the Ratification Act was a special Act which

ratified an Agreement between the Territory and a company for the

He submitted that exclusive possession of the land was a characteristic of a

proprietary right, citing R v Toohey; Ex parte Meneling Station Pty Ltd

[1982] HCA 69; (1982) 158 CLR 327 at 344, per Mason J. I note that his Honour said that

the issue did not take "the applicants very far, even if it be the case that

exclusive possession is very often a characteristic of a proprietary right."

Mr Gee submitted that neither ML1070, nor the Mining Act, nor the

Ratification Act gave the defendant exclusive possession of the land the

subject of ML1070. He submitted that the decision in Thiess Contractors

Pty Ltd v White Range Gold NL (1991) NTJ 1013 was distinguishable, on

this point. I note that that case involved applications to enforce liens over

two Mineral Leases. Martin CJ held that no monies had "accrued due"