Stucoid Pty Ltd v Stadiums Pty Ltd

High Court of Australia|1960-07-01|Before: Windeyer JJ, Philp J

High Court of Australia Dixon C.J. Menzies and Windeyer JJ. Stucoid Pty Ltd v Stadiums Pty Ltd [1960] HCA 41

These are appeals from two orders of Philp J. made on 18th December 1959. The orders were made under the provisions of The Contractors' and Workmen's Lien Acts, 1906 to 1921 Q.. One order dismissed an application by originating summons of a contractor for the enforcement of a lien and a charge claimed under the Act. The other order directed the cancellation of the lien which had been lodged at the office of the Registrar of Titles as an encumbrance on the title of the building owner. The order also cancelled this registration of the lien.

Section 4 of the Act provides that a contractor or sub-contractor or workman who does or procures to be done any work upon or in connexion with any land or any building or other structure or permanent improvement upon land is entitled to a lien upon the whole interest of the employer in that land or upon the moneys payable to the contractor or sub-contractor as the case may require for a contract price of or wages for his work, subject to certain conditions and limitations which are not material to our decision.

Section 6 provides that a workman is entitled to a charge for the moneys due to him for his work upon any money payable to the contractor or sub-contractor by whom he is employed, and the sub-contractor is entitled to a charge for the money due to him under his contract upon any money payable to the contractor or sub-contractor with or under whom he has contracted.

The lien mentioned in s. 4 is, in its relation to the moneys payable to the contractor or sub-contractor, apparently the same thing as the charge referred to in s. 6. The lien in respect of land is another thing.

It has been said that ss. 4 and 6 create the lien and the charge and that the machinery of the Act is to enforce them and otherwise deal with their operation and effect. But be that as it may their actual effectiveness depends on the steps taken to enforce them.

Under s. 9 a notice of claim to a lien must be given within a limited time, and under s. 10 a notice within the same limits of time must be given of a claim to a charge.

Under s. 19 proceedings must be commenced to enforce the lien or charge within a further limit of time; otherwise the lien and the charge respectively lapse.

So far as the facts of the case are relevant to ss. 9, 10 and 19, they are simple enough. The building owner is Stadiums Pty. Limited. On 5th December 1957 that company entered into a contract with a building contracting company named E. J. Taylor & Son Pty. Ltd. for the erection of a building upon a piece of land at the corner of Albert Street and Charlotte Street, Brisbane, owned by Stadiums Pty. Limited. The building has been erected and was formally declared open on 27th April 1959 under the name Festival Hall. The price named in the contract was £224,995 and with extras the total amount said to be payable under the contract was £232,930 18s. 7d. Of this amount £228,918 5s. 2d. has been paid, leaving in hand £4,012 13s. 5d. There are clauses in the contract which it is said warrant the withholding of this last amount but for our immediate purposes that need not be considered.

Stucoid Proprietary Limited are fibrous plaster manufacturers who entered into a sub-contract with E. J. Taylor & Son Pty. Ltd. for the supply, installing or fixing of fibrous plaster ceilings and other materials.

The work under the sub-contract was completed before the end of April 1959 but a further job was required of Stucoid Proprietary Limited and that was completed on 22nd July 1959. The amount of £3,085 5s. 9d. remains owing to Stucoid Proprietary Limited by E. J. Taylor & Son Pty. Ltd. in respect of the work done as sub-contractors and since E. J. Taylor & Son Pty. Ltd. have commenced a voluntary winding-up it has become important to Stucoid Proprietary Limited to establish a lien upon the land to the amount owing to them and to a charge upon the moneys remaining in the hands of Stadiums Pty. Limited which are, or may become, payable to the liquidators.

To that end Stucoid Proprietary Limited on 20th August 1959 gave a notice to Stadiums Pty. Limited in purported pursuance of s. 9 of the Act of their intention to claim a lien and a notice in purported pursuance of s. 10 of their intention to claim a charge.

On 14th September 1959 the company issued an originating summons in pursuance of s. 19 seeking declarations that the company were entitled to the lien and charge and consequential relief.

Stadiums Pty. Limited countered with a summons under s. 40 seeking an order for the cancellation of the claim for the lien and the charge and of the registration of the lien.

As already stated, Philp J. dismissed the first summons and made an order under the second for the cancellation of the lien and the registration. It is unnecessary to go into his Honour's reasons, for we propose to dismiss the appeal for a reason which his Honour was not at liberty to adopt, although it was clearly in accord with his own opinion. He was precluded because of the interpretation attached to ss. 9, 10 and 19 by certain decisions of the Supreme Court of Queensland.

We think that upon the proper construction of ss. 9 and 10 time for giving a notice of a claim to a charge and a lien runs from the completion of the work under the sub-contract and in the same way that sets time running for taking proceedings under s. 19.

In R. v. Police Magistrate at St. George and Barron; Ex parte Lawson and Waldron [1] Cooper C.J., in delivering a judgment of the Full Court, placed upon the provisions an interpretation which made time run from the completion of the work under the head contract.

The provisions of the Act were copied from the New Zealand statute of 1902 re-enacted in 1908 and in Taupo Totara Timber Co. Ltd. v. Smith and Egden [2] Edwards J. placed upon the section which corresponded with s. 9, that is s. 55 of the New Zealand Act of 1908, the interpretation which we think s. 9 bears, but unfortunately the decision of Edwards J. was not cited before the Full Court of Queensland over which Cooper C.J. presided.

What his Honour said was not necessary to the decision but in a series of cases, which will be found referred to by Macrossan C.J. in Sundell v. Queensland Housing Commission [No. 2] [3] the dictum has been followed but, as we think, seldom, if ever, with approval.

Section 9 reads: "A person who intends to claim a lien upon any land under this Act shall, before the completion of the work in respect of which it is claimed or within seven days after the completion, give notice to the owner, if liable, specifying the amount and particulars of his claim, and stating that he requires the owner to take the necessary steps to see that it is paid or secured to the claimant. He shall also give notice of having made such claim to the person who but for the claim would be entitled to receive from the person to whom the notice of claim is given the money in respect of which it is given. A notice of claim of lien may be given, although the work is not completed or the time for payment of the money in respect of which the lien is claimed has not arrived. If no such notice is given, the lien shall not attach."

Section 10 I shall not read because in the main it repeats the critical words in s. 9 which I have read.

Section 19 deals with the subsequent proceedings which must be taken to enforce the lien or charge and it provides: "Proceedings in respect of a lien or charge shall be commenced by summons, which may be in any form prescribed by rules of Court or other practice of the Court. Such proceedings must be commenced within thirty days after the completion of the work in respect of which the lien or charge is claimed. If proceedings are not taken within that time, the lien or charge shall be extinguished". The section then goes on to deal with the statement of claim which must be filed when the summons is issued.

We think that in these three sections the words "before the completion of the work in respect of which it is claimed" or "after the completion of the work in respect of which the lien or charge is claimed" must bear the same meaning and refer to the work done by the person claiming the lien or charge, the sub-contractor or the workman, whichever the case may be.

Prima facie it would be almost enough to read the words and to say that to do so is to conclude that that is the meaning they bear, but there are subsidiary matters and a good deal of context which supports that conclusion.

What is referred to, of course, begins with s. 4 and that section speaks of "a contractor or sub-contractor or workman who does or procures to be done any work upon or in connexion with any land, or any building or other structure" and says that he is entitled to a lien upon the whole interest of the employer in that land or upon the moneys payable to the contractor or sub-contractor, as the case may require, for the contract price or wages for his work.

It is almost obvious that ss. 9, 10 and 19 go back to that conception which is, of course, a conception repeated in s. 6 in relation to the charge upon the moneys. If the time limit is exceeded it is plain from s. 9 and s. 10 that neither the lien nor the charge attach and from s. 19 it is clear that the lien or charge must be extinguished.

I said that in s. 19 the provision went on to speak of a statement of claim which must be filed when the summons is obtained. Section 20 deals specifically with what that claim must state. Section 20 reads: "The claim must state - (a) The name and residence of the claimant and of the person for whom or upon whose credit the work was done, and the period within which it was done, and in the case of a claim of lien the name of the owner of the property to be charged; (b) The nature of the work done; (c) The sum claimed to be due; (d) The date of expiry of the period of credit, if any agreed to by the claimant for payment for his work where credit has been given".

Further confirmation of the meaning we attach to the provision is given by the schedule. Section 11 provides: "A notice of claim of lien or charge may be in one of the forms of the Schedule".

It is true that s. 11 goes on to provide that the authority of the claim is not to be affected if it is not in that form but the schedules are specifically provided as a guide and you find, to take form 1, which is the notice of intention to claim a lien, that the person giving the notice is to say that he claims a lien upon the land "in respect of the following work done upon or in connexion with the land, that is to say (and then the description of it is to be given) which work was done by me".

That is true also, in effect, of the notice of intention to claim a charge which is in form 3 and there is some similar support in the form given for the statement of claim.

We think that all these matters show that it is clear that the time limit runs from completion of the work under the sub-contract and that the decisions of the Supreme Court to the contrary are erroneous. They involve an interpretation of the provisions which ought not to stand and we think that they ought not to be followed.

It is true that much time has elapsed since the first of them was given but having regard to the subject matter and having regard to the doubts which seem clearly enough to emerge from the subsequent decisions we do not think that they should prevent us from giving an interpretation which sets the matter right as we see it.

As the work of Stucoid Proprietary Limited was completed at latest on 22nd July 1959 it was necessary, according to our interpretation of the sections, that notice under ss. 9 and 10 should be given not later than 29th July. Notice was in fact given on 20th August. It follows that the lien and charge did not "attach". Moreover under s. 19 it was necessary, had the lien and charge attached, that the proceedings of Stucoid Proprietary Limited should be taken on or before 21st August. They were not instituted until 14th September 1959. As I have already said, s. 19 provides that if the proceedings are not taken within the required time, the lien or charge should be extinguished. It follows that the appeals should be dismissed with costs. The order will be: appeals dismissed with costs.

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