This eBook is a reproduction produced by the National Library of New Zealand from source material that we believe has no known copyright. Additional physical and digital editions are available from the National Library of New Zealand.
EPUB ISBN: 978-0-908327-00-3
PDF ISBN: 978-0-908329-96-0
The original publication details are as follows:
Title: Contractors' and workmen's liens
Author: Weston, Claude H. (Claude Horace)
Published: Whitcombe and Tombs, Auckland, N.Z., 1924
CONTRACTORS' AND WORKMEN'S LIENS
BY CLAUDE H. WESTON
LL.B., N.Z
A Barrister and Solicitor of the Supreme Court
of New Zealand
Auckland, Cheibtchubch, Dunedin and Wellington, N.Z.; Melbourne and London.
WHITCOMBE AND TOMBS LIMITED
1924
Jfiiratinn
BY HIS HONOUR'S KIND PERMISSION THIS WORK I!
RESPECTFULLY DEDICATED TO
The Honourable Sir Frederick Chapman fit? Tirr ivvrn Tr-msiT.
OF THE INNER TEMPLE
lilt lilllEß ILMrLii A JUDGE OF THE SUPREME COURT OF NEW ZEALAN]
PREFACE
The lot of the Builder is a difficult one, and I make no apology for attempting to assist in solving the problems that arise in the cyclical building booms when contractors rise and fall.
The parent statute "The Contractors' and Workmen's Lien Act, 1892," apparently was based on the Workmen's Liens Bill introduced into the Queensland legislature by Sir Samuel Griffiths, which in its turn, seems to have been based on a Canadian Act passed in the Province of Ontario.
When in 1892 the Honourable Mr. W. Downie Stewart, in debating the Bill in the Legislative Council, chanced the remark ''What the precise effect of the Bill will be it is, of course, very difficult to forecast, but I am satisfied of one thing, and that is, the lawyers are likely to have a pretty lively time of it in connection with all contracts carried out after this Bill comes into operation; at all events until the principles of it are thoroughly understood and contractors, employers, and workmen become acquainted with its provisions,'' he could hardly foresee the extent to which its judicial interpretation would be carried. The utility of the Statute is dependent in very great measure upon the construction given to it by the Supreme Court of New Zealand, for it is interesting to observe that no decisions except those of New Zealand judges have been cited in judgments dealing strictly with the meaning of the Act.
The Act is somewhat peculiar in that it is difficult to ascertain the effect of any particular section without having a grasp of its provisions as a whole, and for that reason I have departed to some extent from the custom of printing the sections separately and noting the cases thereunder.
I only hope that my work may be of some slight assistance to the profession in New Zealand.
CLAUDE H. WESTON.
New Plymouth,
a2
CONTENTS
Page
Table of Cases vii
Chapter I. Liens and Charges Generally 1
„ II. Definition op Work 8
„ III. The Charge 11
„ IV. Priority of Liens and Charges 18
„ V. Liens 26
„ VI. Chattels (a) Non-Possessory Liens 37
(b) Possessory Liens 37
„ VII. Bankruptcy, Assignment, etc. 40
„ VIII. Procedure 45
The Wages Protection and Contractors’
Liens Act 1908. Part III. 68
Rules under the Judicature Act 1908. Dated 8th September, 1919 93
Index 96
TABLE OF CASES.
PAGE AICKEN &- SON v. Bradley, (1916) N.Z.L.E. 659 .. 27 Aitken v. McLean, (1923) N.Z.L.E. 382; (1923) G.L.E. 126 . . .. . . .. .. 27
Allomes and Tarrant Limited v. Goldsbury, 16 G.L.E. 607 . . .. .. . . 17
BAENETT, EEID v., 22 N.Z.L.R. 964; 6 G.L.E. 456 10, 48 Basket! and another v. The Gibbs Beach Gold Dredging Company Limited, 21 N.Z.L.E. 201; 4 G.L.E. 193 .. .. ., fi 4.9.
• • • • • • ■. .. 6, 42 Bassett v. Spurdle and McLeod, 26 N.Z.L.E, 84; 9 G.L.E. 115 .. .. .. .. 34, 51, 53, 56
Bellamy v. Davey, (1891) 3 Ch. 540 .. .. 1 Bishop v. Eowe, 23 N.Z.L.E. 66; 5 G.L.E. 504 .. 33
Black v. Shaw and Official Assignee in Bankruptcy of Walter Shaw, 33 N.Z.L.R. 194; 16 G.L.E. 303 8, 34
Bonthorne and another v. Maude and his wife, 26 N.Z.L.E. 317; 9 G.L.E. 185 . . . . .. 40
Bradley, Aicken and Son v., (1916) N.Z.L.E. 659 . . 27
Brail, In re, Ex parte Norton, (1893) 2 Q.B. 381 . . 33 Breen, Dutton v., 12 G.L.E, 388 .. . . 61 62
Breen and another, Dutton v., 28 N.Z.L.E. 717; 11 G.L.E. 659 . . . . . . . . . .6,16,63
Briscoe and Company Limited, Somerville v., 8 G.L.E. 137 • • ■ • ■ • 3, 26, 33, 34
Bull v. Faulkner, 2 De G. and Sm. 772; 64 E.E. 346 4.3
Burt, A. and T. Ltd., In re, also reported sub nom A. and T. Burt Ltd. v. Upper Magnetic Gold
Dredging Company Limited, 21 N.Z.L.E. 540;
5 G.L.E. 2 .. .. .. .. 10, 26, 30, 48
CABMICHAEL, Wilkins v., (1779) 1 Doug. K.B. 101; 99 E.E. 70 . . .. .. .. 43
Carpenter v. Public Trustee and others, (1918) G.L.E. 272 • • • • • • • • .. 12, 47
Carrara Ceiling Company Limited and others v.
Taranaki Amusements Limited and others, (1918)
G.L.E. 200 .. .. ..15,48,58,62,67
vii
TABLE OF CASES
viii
TAQE Collins v. Cooper and others, 31 N.Z.L.R. 277; 10 G.L.E. 295 .. .. .. .. 41, 47, 54
Commercial Property and Finance Company Limited
v. The Official Assignee of Waghorn and A. and
T. Burt Limited, 24 N.Z.L.R. 655; 7 G.L.R. 652.. 27
Cooper and others, Collins v., 31 N.Z.L.R. 277; 10 G.L.E. 295 .. .. . . .. 41, 47, 54
Craddoek, Manning v., 12 G.L.E. 394 . . 50, 51, 56, 62
DALLAS v. Smart, 18 N.Z.L.E. 479; 2 G.L.E. 206 50 Davey, Bellamy v., (1891) 3 Ch. 540 .. .. 1
Davies, In re, 26 N.Z.L.E. 254; 9 G.L.R. 289 . . 65
Davies, McCombie v., 7 East 5; 103 E.E. 3 .. 43 Donald v. Suckling, L.E. 1 Q.B. 585 .. .. 43
Duncan and Abbott, In re, (1919) N.Z.L.E. 97; (1918) G.L.E. 634 .. . . . . .. .. 44
Dutton v. Breen and another, 28 N.Z.L.E. 717; 11 G.L.E. 659 . . .. .. . . ..6,16,6
Dutton v. Breen, 12 G.L.E. 388 .. .. . . 61, 62
EASSON and another v. Knight, 13 G.L.E. 625 18, 35, 58, 60
Easson, J. \V., and Co. v. Murray, 23 N.Z.L.E. 802; 6 G.L.E. 447 .. .. . . .. 46, 47
Evans and Wheelton, Legg v., 6 M. and W. 36; 151 E.E. 311 .. .. .. .. 43
FAULKNER, Bull v., 2 De G. and Sm. 772; 64 E.B, 346 .. .. . . .. .. 43
GATHEECOLE v. Smith, (1881) 7 Q.B.D. 626 .. 7, 42
Gibbs Beach Gold Dredging Company Limited, Baskett v., 21 N.Z.L.E. 201; 4 G.L.E, 193 .. 6, 42
Gillanders Bros. v. Beeves, 23 N.Z.L.E. 417 53, 59, 67
Godber v. Manning and another and Chapman, 33 N.Z.L.E. 603; 16 G.L.E. 181 .. .. ..3,41
Goldsbury, Allomes and Tarrant Limited v., 16 G.L.R. 607 .. .. .. .. .. 17
Granger, Hudson v., 5 B. and Aid. 27; 106 E.B. 1103 43
Gunn, Waters v., 29 N.Z.L.E. 468; 12 G.L.E. 669 . . 16, 63
HADDOCK and another v. Pedersen, (1916) N.Z.L.E. 1181; (1916) G.L.E. 655 .. .. 25, 50, 62, 67
ix
TABLE OF CASES
Halley and Ewing v. Searle, 24 N.Z.L.E. 151; 6 G.L E ii 6 48
Haynes and others v. MeKillop, 24 N.Z.L E 8337 G - L - K - «« .' 8, 65
Hudson v. Granger, 58. and Aid. 27; 106 E.R. 1103 '4;
JOHNSON v. McLeod and others, 11 G.L.R. 235 . . 48
Jones, In re, Ex parti Official Assignee, 23 NZLE 213; 6 G.L.E. 103 54, „ 60
KNIGHT, Easson and another v., 13 G.L.R. 625 • ■ • • • • . . 18, 35, 58, 60
LEGG v. Evans and Wheelton, 6 M. and W. 36- 151 E.E. 311 . . . 4;
MACKENZIE v. Mackintosh, 64 L.T. 318 3
Mackintosh, Mackenzie v., 64 L.T. 318 . . 3
Manning and another and Chapman, Godbcr v., 33 N.Z.L.E. 603; 16 G.L.E. 181 .. .. ..3,41
Manning v. Craddock, 12 G.L.E. 394 .. 50, 31, 56, 62
Marton Club House Buildings Co. Ltd., Se, 10 G.L.E. 582 ■• •• ••10,18,24,45,46,48,49,58,60
Mather and another v. Newman and others, 27 N.Z.L.E. 1092; 10 G.L.E. 380 .. 5,18,21,22,24
Maude and his wife, Bonthorne and another v., 26 N.Z.L.R. 317; 9 G.L.R. 185 .. .. '.. 40
Midwood and another, Penketh and others v., 33 N.Z.L.R. 1399; 16 G.L.R. 584 . . '. . 41; 48
Miramar North Building Deposit and Mortgage Co. Ltd., Pollock v., 29 N.Z.L.E. 1014; 13 G.L.R
38 •• •• ■• •• 46, 52, 55, 56
Moss, Henry F. Ltd. v. Wilson and another, 34 N.Z.L.E. 311; 17 G.L.E. 317 .. .. .. 46
Murray, J. W. Easson and Co. v., 23 N.Z.L.R 8026 G.L.E. 447 .' 46 47
McAndrew and others v. Tudehope and Cate 24 N.Z.L.E. 831; 7 G.L.R. 556 ' .. 6,13,14,18,58
McCombie v. Davies, 7 East 5; 103 E.R. 3 .. 43
McConochie and others v. Webb and others, 24 N.Z.L.E. 229; 6 G.L.R. 272 .. .. '..27 29
McGregor and Co. v. The Quartz Eeef Point Sluicing Coy. Ltd., 28 N.Z.L.E. 758 .. . . 44 52 53
TABLE OF CASES
X
PAGE McKillop, Haynes and others v., 24 N.Z.L.E. 833; 7 G.L.E. 478 .. .. . . .. 8, 65
McLean, Aitken v., (1923) N.Z.L.E. 382; (1923) G.L.E. 126 .. .. .. .. . . 27
McLeod and others, Johnson v., 11 G.L.E. 235 .. 48
NEWMAN and others, Mather and another v., 27 N.Z.L.E. 1092; 10 G.L.E. 380 .. 5, 18, 21, 22, 24
OFFICIAL ASSIGNEE of Palmer v. Sharpe, (1921) N.Z.L.R. 460; (1921) G.L.R. 328 .. .. 16
Official Assignee of Waghorn and A. and T. Burt Ltd., The Commercial Property and Finance
Coy. Ltd., v., 24 N.Z.L.R. 655; 7 G.L.R. 652 .. 27
Official Assignee, Ex parte. In re Williams, 17 N.Z.L.R. 712; 1 G.L.R, 224 .. .. 2, 9, 18, 21, 40, 45, 54, 62
Official Assignee, Ex parte, In re Jones, 23 N.Z.L.R. 213; 6 G.L.R. 103 .. .. .. 54,58,60
PEDERSEN, Haddock and another v., (1916) N.Z.L.R. 1181; (1916) G.L.R. 655 .. ..25, 50, 62, 67
Penketh and others v. Midwood and another, 33 N.Z.L.R. 1399; 16 G.L.R. 584 .. .. 41, 48
Pollock v. lliramar North Building Deposit and Mortgage Coy. Ltd., 29 N.Z.L.R. 1014; 13 G.L.E.
38 . . . . .. .. .. 46, 52, 55, 56
Public Trustee and others, Carpenter v., 1918 G.L.R. 272 .. .. .. . . .. 12, 47
QUARTZ Reef Point Sluicing Coy. Ltd., The, McGregor and Coy. v., 28 N.Z.L.R. 75S 44, 52, 53
REEVES, Gillanders Bros, v., 23 N.Z.L.R. 417 53, 59, 67
Reid v. Barnett, 22 N.Z.L.R. 964; 6 G.L.R. 456 .. 10, 48 -r~. t . , _ i n ttt_ nt» „ in nTT>
Roberts and another, Walker Bros, v., 10 G.L.R. 629 . . . . . • • • . . 47, 55
Rowe, Bishop v., 23 N.Z.L.R. 66; 5 G.L.R. 504 .. 33
SEARLE, Halley and Ewing v., 2-4 N.Z.L.E, 151; 6 G.L.R. 446 .. . . . . . . .. 48
Sharpe, Official Assignee of Palmer v., (1921) N.Z.L.E. 460; (1921) G.L.E. 328 .. .. .. 16
TABLE OF CASES
xi
Shaw and Official Assignee in Bankruptcy of Walter Shaw, Black v., 33 X.Z.L.R. 194; 16 G.L.R. 303 8, 34
Smart. Dallas v.. 18 N.Z.L.R. 479; 2 G.L.R. 206
Smith. Gathercole. v., (ISSU 7 Q.B.D. 626 .. 1 42
Smith and Egden. Taupo Totara Timber Coy. Ltd., v. 3" X.Z.L.R. 77; 13 G.L.R. 204 6,10,13,14,15,46,47,48
Smith, In re, 12 X.Z.L.R. 543 .. .. .. 40
Somerville v. Briscoe and Coy. Ltd., 8 G.L.R. 1"7 ."., 26,33,34
Spurdle and McLeod, Bassett v.. 26 X.Z.L.R. 849 G.L.B. 115 34,51,53,56
Suckling, Donald v., L.R. 1 Q.B. 585 . . . . 43
TAEAXAKL Amusements Ltd. and others, Carrara Ceiling Coy. Ltd. and others v., (1918) G.L.R.
200 • ■ • • • ■ . . 15. 48, -IS. 62, 'l7
Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 X.Z.L.R. 77; 13 G.L.R. 204 6,10,13,14,15, 46, 47. 4S
Tudehope and Catc, McAndrew and others v., 24 X.Z.L.R. 851; 7 G.L.R. .15(5 .. 6, 13, 14, I
Tutira Waaka Hakaria, Waitere Marumaru v., (1917) G.L.R. 237 .. .. .. , . 23 36
UPPER Magnetic Gold Dredging Coy. Ltd., A. and T. Burt Ltd. v., also reported sub nom, In re
A. and T. Burt, Ltd. 21 X.Z.L.R. 540; 5 G.L.R. 2 • • • ■ • • .. 10, 26, 30, 48
VANSITTART, In re, Ex parte Brown, (1893) 2 Q.B. 377 •• •• •• .. .. 33
WAITEBE Marumaru v. Tutira Waaka Hakaria, (1917) G.L.R. 237 .. . . . . 23, 36
Walker Bros. v. Roberts and another, 10 G.L.R. 629 47, 55
Waters v. Gunn, 29 N.Z.L.E. 468; 12 G.L.R. 669 .. 16, 63
Webb and others, McConochie and others v.. 24 X.Z.L.R. 229; 6 G.L.R. 272 .. .. ..27,29
Wilkins v. Carmiehael, (1779) 1 Doug. K.B. 101; 99 E.R. 70 . . .. . . . . ~ (:;
Williams, In re, Ex parte Official Assignee, 17 X.Z.L.R. 712; 1 G.L.R. 224 .. .. 2,9,18,21,40,45,54,62
Williams, B. E., In re, (1916) N.Z.L.R. 650; (1916) G-L-R- 3r ' B 40, 64
Wilson and another, Henry F. Moss Ltd. v., 34 X.Z.L.R. 311: 17 G.L.B. 317 .. .. '.. 4 g
Contractors’ and Workmens’
Liens
Chapter I.
LIENS AND CHARGES GENERALLY.
At Common Law the builder has no lien on the work he has done for his employer, and can only obtain payment of his price by bringing an action. Thus, the rights of the parties are different from those in an ordinary contract for the manufacture of "future goods," where, for instance, a person is employed on his own premises to construct a chattel, e.g., a ship, from his own materials for another (a). When the property in the materials has passed to the employer by reason of their having been affixed to the freehold, the contractor has no lien on them, or on the works constructed with them, unless he has expressly contracted with the employer that he shall have such a lien. But when materials brought on the land of the employer have not been affixed to the freehold and the property in them has not passed to the employer by the terms of the contract, the contractor may have a right to hold them as an unpaid vendor until they are paid for (b).
"The Contractors' and Workmen's Lien Act, 1892" now Part 111. of "The Wages Protection and
(a) Halsbury, Vol. 111., p. 165, para. 323.
b) Ibid, p. 264, para. 552.
Bellamy v. Davey, 1891, 3 Ch. 540.
CONTRACTORS’ AND WORKMEN’S LIENS
•1
Contractors’ Liens Act 1908,” created in New Zealand certain Liens and Charges previously unknown to the Law. The effect of such Liens and Charges is to give security to contractors, subcontractors, and workmen in respect of the work and labour done and material supplied by them, over the “work” itself and the moneys payable by the employer in connection therewith.
"In my opinion the general policy of the statute is that those who supply labour, the benefit of which is necessarily incorporated, or material for the purpose of incorporation, and which has been incorporated in the land or chattels of another, shall, to the extent provided by the Statute, have a lien upon such land or chattels, and upon the moneys payable in respect of the labour or material so supplied."
"The purpose of the 1892 Act is shortly and correctly described in its title 'An Act to make Better Provision for securing the Payment of Money due to Contractors and Workmen and for other Purposes.' " (c).
The Act is careful to describe the security over the Land or Chattel as a "Lien" (d) and the security over the moneys as a "Charge" (e), although this nomenclature has not been strictly followed by the Judges in interpreting the Act. The Lien and Charge arc therefore statutory rights.
"Prior to the passing of the Act of 1892, a person who supplied material to be used in the erection of a building- had no lien upon the land upon which
(c) In re Williams ex parte Official Assignee 17 N.Z.L.R. 712
(C.A.), (Edwards J. at p. 719), overruling In re Smith 12
N.Z.L.B. 543 (Connolly, J.)—See Section 6 (e) of "The
Acts Interpretation Act, 1908."
(d) Sec. 49. (e) Sees. 51 and 52,
3
LIENS AND CHARGES GENERALLY
the building was erected. His claim was limited to a right of action against the person to whom he supplied the goods. The right of lien given by the Act of 1892 is purely the creature of the Statute and depends for its existence upon the terms of the Statute, and the enforcement of the lien depends upon a compliance with the terms of the Statute” (/).
Referring to Section 51, Chapman, J., said:— "This it is to be observed, is absolute in terms, and gives the sub-contractor an absolute statutory right" (g). The same Judge described it later in his judgment as "a statutory charge which is held by the highest title known to the Law" (hj). The Lien and Charge thus created may be classified as Xon-Possessory (i), Particular (k), and Statutory.
With regard to the first two characteristics they may be compared with the solicitor's lien of an equitable nature upon the fruits of judgments or orders obtained by him in favour of his clients in the suits in which he was employed, for his costs in those suits (I).
As to the third characteristic, the Charge was described by Edwards, .].. In re Williams ex parte Official Assignee (//) as a floating charge until notice required by section 56 is given and one liable to be defeated to tbe extent and in the manner provided by the Statute
f) Cooper, J., in Somerville v. Briscoe & Co. Ltd., 8 G.L.R. 137 at page 139.
'g) Godber v. Manning and another and Chapman, 33 N.Z.L.R. 603 at p. 604.
(hj, Ibid., p. 605.
(i) Halsbury, Vol. XIX., j>. 4, para. 4.
[lc) Halsbury, Vol. XIX., p. 10, para. 14.
(1) Mackenzie v. Mackintosh, 64 L.T. 318.
(II) 17 N.Z.L.E. 712 (C.A.
4
CONTRACTORS’ AND WORKMEN’S LIENS
(m). The Lien-holder and Charge-holder are limited by the Statute to a certain amount that they can claim in), to a certain time within which they can lodge their claim (o), and may be defeated to the extent of payments up to a certain amount that may be made by the employer and contractor in good faith before receipt of the notices under Sections 55 and 56 ( p).
The Lien of a contractor does not exceed the amount for the time being due to him under the contract between him and the employer (q) ; the lien of a sub-contractor does not exceed the amount for the time being due to him under the contract between him and the contractor or sub-contractor under whom he works (r) ■ and the lien as distinguished from the charge, of a worker, does not exceed the amount for the time being payable to him, and is limited to thirty days' earnings in respect of one contract (s). Naturally the employer's land or chattel is only made subject to a total lien for the amount of the contract price (t).
The sub-contractor and worker are also given the right to a charge upon the money payable by the employer; the sub-contractor for the money due to him under the sub-contract on any money payable to his contractor or to any superior contractor, by the employer, or by any superior contractor, in respect of the work done or to be done under the sub-contract (a) ; and the worker for the money due
(m) p. 723.
(n) Sees. 49, 51, and 52.
(o) Sees. 55 and 56.
(p) Sec. 59.
(g) Sec. 49 (a)
(r) Sec. 49 (6)
(s) Sec. 49 (c) and (e)
m Sec.' 49 (d).
owe. <*y (a) Sec. 51.
5
LIENS AND CHARGES GENERALLY
to him for his work on any money payable to the contractor or sub-contractor by whom he is employed or payable to any superior contractor in respect of the work done or to be done under the contract of the sub-contractor by whom he is employed (b). The worker's charge as distinguished from his lien, is not limited to thirty days' earnings (c).
The position of the employer so long as he obeys the dictates of the Act, cannot be prejudicially affected. It is denned only by his contract with the contractor and practitioners when asked to advise upon questions arising under the Act, should first of all ascertain the terms of the contract (d). The owner pays neither more nor less than what he is bound to pay by its provisions. The amount that for the time being is due to the contractor (e) the money payable to the contractor by the employer (/) and the money payable by the employer under his contract (g) depend upon the contract.
"Subject to the provisions of section 59, therefore, no moneys can be recovered under the Statute unless those moneys have become payable by the person against whom it is sought to enforce the lien. Section 59 does not, nor does any other provision of the Act, create a liability as between the Lienor and the person against whom it is sought to enforce a lien, unless a liability on the part of the person so sought to be charged, has already arisen as
(6) Sec. 52. N. 8., Sec. 52 was a paragraph of S. 5 of the 1892 Act (c) Mather and another v. Newman and others, 10 G.L.R. 380;
(Cooper, J., at p. 382).
(d) Haynes and others v. McKillop, 24 N.Z.L.R. 833
(e) Sec. 49 (a).
(/) Sec. 51
( g ) Sec. 58, s. 59 (2)
(i
CONTRACTORS' AND WORKMEN'S LIENS
between himself and the person with whom he has contracted." (hj) "Except in so far as the contract creates a liability on the part of the employer to the contractor, there is nothing upon which the lien asserted by a claimant under the Statute can operate as between that person and the employer." (i)
Usually building contracts provide for progress payments being made to the contractor upon the certificate of the architect or engineer (k), but the contract may be entire and indivisible, and in such case the contractor will not be entitled to recover anything in respect of it unless the whole work be done, or unless it can be shown that it was through the fault of the employer the work was not completed or that there is something to justify the conclusion that the parties had entered into a fresh contract for payment for the work actually done (I).
Where the contractor has become entitled to progress payments but eventually fails to complete the whole contract, the claimant under the Act is restricted to his remedies under sections 58 and 61, and cannot resort to the one-fourth of such progress payments retained by the employer under subsection 2 of section 59 (m).
( h j) Edwards, J., in Taupo Totara Timber Co. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77, p. 81.
(i) Ibid., p. 82. N.B. —As to employer’s right of set off see Infra p. 7.
(k) Baskett v. Gibb’s Beach Gold Dredging Coy. Ltd., 21 N.Z.L.R. 201; Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77.
(I) Dutton v. Breen and another, 28 N.Z.L.R. 717 (Sim, J
m ) Edwards, J., in McAndrew and others v. Tudehope and Cate, 24 N.Z.L.R. 851; and Taupo Totara Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77, Infra p. 15.
LIENS AND CHARGES GENERALLY
24
In Basket! v. Gibb’s Beach Gold Dredging Company, Ltd., where the employer claimed that there were penalties due under the contract which could be set off, Williams, J., decided that the amount for the time being due to the contractor under the contract, was what he would be entitled to recover if he brought an action in the ordinary form, and was subject to the same right of set off on the part of the employer ( n), but that a claim for unliquidated damages could not be set off until it had been prosecuted to judgment in a separate action (o).
(n) But see Halsbury, Vol. XXV., p. 487; Gathercole v. Smith,
1881, 7, Q.B.D. 626 (C.A.). (o) 21 N.Z.L.R. 201.
8
CONTRACTORS’ AND WORKMEN’S LIENS
Chapter 11.
DEFINITION OF WORK.
The class of contract which is affected by the Statute is denned by section 48 (definition of "work"). The work as so defined is to be done upon or in connection with any land, or any building or other structure or permanent improvement upon land or upon or in connection with any chattel (p). In the 1892 Act the definition of work commenced " 'Work' includes any work or labour, etc.," and in Haynes and others v. McKillop (q) Stout, C.J., and Edwards J., decided that the word "includes" was not to be read as "means" and that therefore the term "Work" should include "bush felling," holding that if the term were not to have a wider signification than that mentioned in the interpretation clause as being included in "work," then bushfelling was not "work" in the meaning of the Act (r). When the 1892 Act was merged in the consolidated Act of 1908, the Commissioners altered the word "includes" to "means" without, however, making any reference to this alteration in their Report. In deciding that the formation, metalling, and construction of a road is "work" and entitles the contractor or worker to a lien under section 49 of the Act upon the whole interest of the employer in the land over which the road is constructed, Denniston, J. (s) drew attention to the alteration,
(p) Sec. 49.
(q) 24 N.Z.L.E., 833.
(r) Ibid., p. 837.
(s) Black v. Shaw and Official Assignee in Bankruptcy of Walt Shaw, 33 N.Z.L.R. 194. 16 G.L.R. 303.
9
DEFINITION OF WORK
and by Section 2 (a) of "The Wages Protection and Contractors' Liens Amendment Act 1914" the word "includes" was substituted for the word "means" and the word "also" was inserted before the word "includes" in the last paragraph of the definition of "work."
As to whether a person who supplies materials is a sub-contractor, was also considered by Edwards, J., in the Court of Appeal, in In re Williams (t). '' The only doubt possible as to whether or not the claimant is a sub-contractor within the meaning of this definition depends upon whether or not it can be argued that the supply of material is not "work" within the meaning of the definition unless it is supplied in connection with labour skilled or unskilled, done by the person supplying the material. The grammatical construction of the last paragraph is, however, that it must be read as though the word "work" were repeated in it, so that grammatically the sentence must be read as though it ran, "and 'work' shall include the supply of material used or brought on the premises to be used, in connection with the work." This construction, moreover, is, in my opinion, that required by the general policy of the Statute, to which reference is made hereafter in dealing with the other questions raised. In my opinion, therefore, even if the articles supplied by the claimant had been taken out of his stock-in-trade, yet, if he had, as is the case, contracted with the bankrupt to supply such articles for the purpose of the building in the course of erection for Mr. OVonnor, he would still have been a sub-contractor for work in connection with that building within the meaning of the Statute. If the contract had been
(t) 17 N.Z.L.E. 712, p. 717
27
CONTRACTORS’ AND WORKMEN’S LIENS
for the supply of materials generally, without specifying their purpose, so that the bankrupt could have done what he pleased with the materials in question, the mere fact that they were used in a particular building would not have created a lien or charge in favour of the person supplying the same; but where a contract is entered into for the supply of materials for the purpose of work in connection with a particular building, it has, in my opinion, since the passing of the Statute under consideration, become an essential term of such contract that such materials should be used only for the purpose for which they are supplied ,(°0- It is immaterial whether the supplier is a manufacturer or a mere merchant selling articles partly manufactured (b).
» See also In re A. & T. Burt Ltd., 21 N.Z.L.R. 540, reported sub. nom. A. & T. Burt Ltd. v. Upper Magnetic Gold Dredging Coy. Ltd., 5 G.L.R. 2 (Williams. J.) ; re Marton Club House Buildings Co. Ltd., 10 G.L.R. 582 (Cooper, J.); Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77 (Edwards, J.) ; see Infra p. 48.
(ft) Reid v. Barnett, 22 N.Z.L.R. 964 (Stout, C. J.)
THE CHARGE
28
Chapter 111.
THE CHARGE.
A sub-contractor is entitled to a charge for the money due to him under the sub-contract on any money payable to his contractor or to any superior contractor by the employer or by any superior contractor, in respect of the work done or to be done under the sub-contract (c). A worker is entitled to a charge for the money due to him for his work on any money payable to the contractor or subcontractor by whom he is employed or payable to any superior contractor in respect of the work done or to be done under the contract of the subcontractor by whom he is employed (d).
On receipt of notice of a claim of Hen or charge (e) it shall be the duty of the person by whom it is lect-ived to retain in his hands until the time prescribed by Part 111. of the Act for taking proceedings for enforcing the lien or charge has expired, a sufficient part of the money payable by him under his contract to satisfy the claim of the claimant (/). In default of such retention he shall, subject to the provisions contained in the Act, be personally liable to pay to the claimant the amount of his claim, not exceeding the amount he should have retained, in the same manner and to the same extent as if the claimant had been employed by him personally (g).
[c) Sec. 51
(d) Sec. 52. This section was the second paragraph of Sec. 5 of the 1892 Act.
(e) Sees. 55, 56 and 57.
(f) Sec. 58, Subsec. (1).
(g) Sec. 58, Subsec. (2)
29
CONTRACTORS’ AND WORKMEN’S LIENS
Where notice has been given of an intention to claim a lien or charge and the person to whom it is given does not pay, or make satisfactory arrangements for paying, to the claimant the amount claimed, the claimant may recover the amount of the lien or charge from the owner, if liable, of the land or chattel, or the person by whom the money subject to the charge is payable ( hj).
All payments up to three-fourths of the contract price to be paid for the work, made in good faith by the employer or owner to the contractor or by the contractor to the sub-contractor, or by one subcontractor to another sub-contractor before notice in writing by the person claiming the lien or charge has been given to such employer or owner, contractor or sub-contractor, as the case may be, of the claim of such person, shall operate as a discharge pro tanto of the lien or charge; but this section shall not apply to any payment made for the purpose of defeating or impairing a claim to a lien or charge existing or arising under Part 111. of the Act ( i ).
An employer or contractor shall retain in his hands one-fourth part of the money payable under the contract to the contractor or sub-contractor until the expiration of thirty-one days after the completion of the work ( k ).
The combined effect of these sections is to make a clear distinction between the one-fourth part of the money payable under the contract to be retained under section 59 sub-section 2 and the remainder of such money payable under the contract.
(ft) Sec. 61
(i) Sec. 59, Subsec. (1)
(ft) Sec. 59, Subsec. (2). As to the meaning of “completion of the work” in this Subsec. (2), see Subsee. (3) added by Sec. 4 of the Amending Act of i 914 and Carpenter v. Public Trustee and others, 1918 6.L.R. 272 (Herdman, J.).
THE CHAEGE
13
The one-fourth part must be retained by the employer or contractor under the provisions of section 59 sub-section 2 irrespectively of any notice of lien or charge and whether any such notice is ever given or not. The money which he is required by section 59 to retain upon receipt of a notice of a lien or charge is in addition to, and not in substitution for, the money which by virtue of the Statute alone he must retain in hand under section 59 sub-section 2 (I). The latter money, it will be noted, must be retained until thirty-one days after the completion of the work (m). The meaning of "completion of the work" for the purposes of this section is defined by sub-section (3) added to the section by section 4 (b) of the Amending Act of 1914. The one-fourth is, therefore, to be retained intact by the employer or contractor as a reserve for the workers and subcontractors in the event of and until thirty-one days after the completion of the work.
The position of the remainder of the money payable under the contract, is different. Upon receipt of a notice by the employer under section 58, it is his duty to retain in his hands, until the time prescribed by the Act for enforcing the charge has expired, a sufficient part of the money payable by him under his contract to satisfy the claim of the lien or charge-holder. The lien or charge-holder in such case, acquires an absolute charge, if there is money payable by the employer under the contract beyond the sum required under section 59 subsection (2) to be retained in hand by him ( n).
(!) McAndrew and others v. Tudehop^animate, 24 SJ.Z.L.U. Be] (Edwards, J.), at p. 855. j ly {*+ /S
(m) Sec. 59, Subsee. (2)
(n) McAndrew and others v. Tudehope and Cate, 24 N.Z.L.B. 851 (Edwards, J.), at p. 855; Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77 (Edwards, J.), at p. 79.
31
CONTRACTORS’ AND WORKMEN’S LIENS
“Money payable under the contract” is money which the contractor has the right to demand and payment of which he can enforce, from the employer, either at the time when notice of lien is given by the lienor or at any subsequent time, provided the effect of section 59 subsection 2 is not thereby interfered with (o). To the vigilant worker or sub-contractor, sections 58 and 61 afford a method of obtaining payment of his claim in priority to other workers or sub-contractors. “Qui prior est tempore, potior est jure." His charge under these sections is absolute and he is not bound to share its proceeds with other members of his class under section 54, in the way that he must share the proceeds of any charge over the one-fourth part of the money payable under the contract and to be retained by the employer under section 59 subsection (2) (p). Moreover it would almost appear as if the lien-holder or chargeholder in a case where there is money payable under the contract beyond that to be retained under section 59 subsection (2) would be restricted to his remedy under section 61, and would not be entitled to participate in the reserve fund created by section 59 subsection 2.
The floating nature of the charge is characterized by section 59 sub-section (1): —“All payments up to three-fourths of the contract price to be paid for the work made in good faith by the employer or owner to the contractor or by the contractor to the sub-contractor, or by one sub-contractor to another sub-contractor, before notice in writing by the person claiming the lien or charge has been given to
(o) Tanjio Totara Timber Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77 (Edwards. J.), at p. 80.
(p) McAndrew and others v. Tudehope and Cate, 24 N.Z.L.R. 851 (Edwards, J.), at p. 856.
THE CHARGE
32
such employer or owner, contractor, or sub-con-tractor, as the case may he, of the claim of such person, shall operate as a discharge pro tanto of the lien or charge; but this section shall not apply to any payment made for the purpose of defeating or impairing a claim to a lien or charge existing or arising under this part of this Act.”
It is clear from sub-section 2 of section 59 that the one-fourth part of the money payable under the contract must be retained until the expiration of thirty-one days after the completion of the work, and it has been held that in the event of the work not being completed, the lien and charge-holders have no claim upon such one-fourth part, although if the employer had not observed the provisions of sub-section 2 section 59, it has been suggested that he would be liable to the lien and charge-holders to the extent that he had failed to do so ( q ).
In the case where an employer has observed the statutory duty cast upon him by sub-section 2 of section 59 but the contract has been abandoned a curious position arises with regard to the money retained by the employer. Under the wording of some building contracts, the money is no longer the property of the employer, for at the time of retention it was due although not payable to the contractor: It has simply been retained under statutory provision, as a reserve fund to protect workers and subcontractors. It is money earned by the contractor and subject to the provisions of the Act is capable of a valid assignment that will be good in the event
(q) Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 X.Z.L.R. 77 (Edwards, J.). The Carrara Ceiling Coy. Ltd. and others v. Taranaki Amusements Ltd. and others, 1918, G.L.R. 200 (Edwards, J.), was a case in which the employer finished the building through the contractor but failed to retain the one-fourth part.
CONTRACTORS' AND WORKMEN’S LIENS
33
of the subsequent bankruptcy ( r ). Should it not be required for that purpose, what is to be done with it? Can the employer set it off against any claim he may have against the contractor for non-fulfilment of his contract, or if he has no such claim against the contractor after a reasonable interval from the abandonment of the contract, must he pay it to the contractor or his Official Assignee in Bankruptcy if the contractor has been adjudicated a bankrupt? As in all cases arising under the statute it is all-im-portant to carefully consider the terms of the contract between employer and contractor.
Of course if the contract is an entire and indivisible one and is not completed no difficulty arises because there is in such case no money payable under the contract (s).
The provision of section 59 sub-section 2 as to the retention of the one-fourth part is “directory” and not “mandatory” ( t) and an employer is in consequence legally entitled, if he so desire, to agree by his contract to pay the contractor in full without retaining the one-fourth part of the money payable under the contract until thirty-one days after the expiration of the work. If the employer choose to take the risk to which he exposes himself by disregarding this statutory provision he can lawfully do so. The only effect of sub-section 2 of section 59 is that should the employer pay his debt to the contractor in full, he cannot set that up as an answer to a claim that comes within the Statute (a).
(r) Official Assignee of Palmer v. Sharpe. 1921, N.Z.L.R. 46C (Salmond, J.).
(s) Supra p. 6, Dutton v. Breen and another, 28 N.Z.L.R. 717 (Sim, J.).
( t ) Waters v. Gunn, 29 N.Z.L.R. 468 (Edwards, J
(a) Ibid., p. 471
THE CHARGE
34
Allomes and Tarrant, Ltd., v. Goldsbury (b) was a curious case in which the employer gave the contractor a blank promissory note with authority to fill it in for £4O. The contractor filled in the amount as £lOO and discounted it for value. This, with other subsequent payments, exceeded three-fourths of the contract price. It was held that as between the sub-contractors and the employer the employer was bound to meet claims to the extent of one-fourth of the contract price.
(6) 16 G.L.B. 607 (Edwards, J.)
35
CONTRACTORS’ AND WORKMEN’S LIENS
Chapter IV.
PRIORITY OF LIENS AND CHARGES.
The reserve fund created by sub-section 2 of section 59 is, in case of a deficiency existing, divided amongst the claimants in the priorities set out in section 54. By virtue of that section, the several liens and charges as between themselves have priority in the following order:—
(a) The liens and charges of workers for wages.
( b ) The liens and charges of sub-contractors.
(c) The liens of contractors.
so that the lien or charge of a sub-contractor shall have priority over the lien or charge of the contractor with whom his contract is made.
The claimants in each class participate in the money available, proportionately to the amounts of their respective claims (c). Moreover priority of registration of liens does not affect this principle of equality (d).
A difficult question as to the effect of the Act under certain circumstances was asked by Edwards, J., In re Williams ex parte Official Assignee {e) and answered by Cooper, J., in Mather and another v. Newman and others (f). Eeferring to section 49 Edwards, J., said: "Under it a sub-contractor or a workman employed by a sub-contractor, may, to the
(c) McAndrew and others v. Tudehope and Gate, 24 N.Z.L.R. 851 (Edwards, J.) ; Be Marton Club House Buildings Coy. Ltd., 10 G.L.R. 582 (Cooper, J.); Easson and another v. Knight, 13 G.L.R. 625 (Williams, J.).
(d) Easson and another v. Knight, 13 G.L.R. 625 (Williams, J.).
(e) 17 N.Z.L.R. 712, at p. 720 (C.A.).
(/) 10 G.L.R. 380.
PRIORITY OF LIENS AND CHARGES
36
extent of the moneys owing by the employer to the contractor, assert a lien upon the land or chattel of the employer, though the effect of such a claim may be to defeat the rights of the contractor or of intermediate sub-contractors. The results at first sight may appear to be of a startling character. For example, a workman employed by a sub-contractor may assert a lien upon the land or chattel of the employer to the extent of thirty days’ earnings, to the prejudice of the original contractor, though nothing whatever is owing by such original contractor to the sub-contractor who employs the workman. To obviate or lessen this apparent injustice, section 12 provides that all payments up to threefourths of the contract price to he paid for the work, made in good faith by the employer or owner to a contractor, or by the contractor to a sub-con-tractor, or by one sub-contractor to another, before notice in writing of a lien or charge has been given, shall operate pro tanto as a discharge of the lien or charge created by the Act. ’ ’
"If, however, a contractor should pay his subcontractor in full, which in many cases he may be compelled to do in order to get the work done, he must bear the loss. The only principle upon which such results can depend, must be that the workman who does the work is intended, to the extent provide 1 by the Statute, to have a charge upon the land or chattel upon which the work is done, and that the contractor and all those who contract under him are charged with the duty of seeing that such workman is paid; and. if they fail so to do, to the extent provided by the Statute, they must bear the loss "
"I have stated fully the principle which, as it appears to me, must be deduced from section 3 (g),
( g ) Sec. 49, 1908 Act.
37
CONTRACTORS ’ AND WORKMEN’S LIENS
because, although that section is not the section immediately under consideration in the present case, I think that it is the key to the meaning of the Legislature. ’ ’
The section immediately under consideration is the fifth (hj) which provides that a sub-contractor is entitled to a charge for the money due to him under the sub-contract upon any money payable to his contractor, or to any superior contractor by the employer or by any superior contractor in respect of the work done or to be done under the sub-contract. Here, again, the same principle is apparent, that the man who actually does the work is entitled to be paid, though the result may be to injure the employer, or the intervening contractors who do not actually perform the work. I take, for example, a case in which A the employer, contracts with B, the contractor, for the performance by B of certain work to the value of £lOO. B, the contractor, contracts with C for the performance of part of the work for £75. C contracts with D for the performance of part of C’s work for £5O. Here, as regards D, A is the employer within the meaning of section 5 (i), B is the superior contractor, Cis D’s contractor. A pays to B all the money due to him, and B in turn pays C. C fails to pay D. D is by virtue of section 5 (k) entitled to a charge to the extent mentioned in section 12 (I) (1) against the land of A, (2) against onefourth of the contract price payable by A to B, (3) against one-fourth of the contract price payable by Bto C. These charges prevail against A and his land and against B, notwithstanding that A may
[h) Sections 51 and 52, 1908 Act.
(i) Sections 51 and 52, 1908 Act,
(k) Sections 51 and 52, 1908 Act.
(!) Section 59, 1908 Act.
PRIORITY OP LIENS AND CHARGES
38
have paid to B all that has become or ever will become payable to him, and that B in the like manner has paid C; and it is plain that such charges could not in any way be affected by the bankruptcy of C, since C's estate could not be in any way affected. Can it. then, have been the intention of the Legislature that D should suffer because there is still money owing in respect of the work done to C, his debtor!"
The main point for decision by the Court of Appeal in In re Williams ex parte Official Assignee (to) was whether a charge, to which a sub-contractor is entitled under the Act, upon moneys due to the contractor, is defeated by the bankruptcy of the contractor before a notice claiming the charge has been given by the sub-contractor, or where the bankruptcy relates back to an act of bankruptcy committed before the giving of the notice and the above observations of Edwards, J., were made in the course of a survey of the general policy of the Act.
— o i Cooper, J., however, in Mather and another v. Newman and others ( n) was actually faced with this problem. A employed Bto build a house. B sublet part of the work to C, who employed D as a workman on his sub-contract but failed to pay his wages. B paid to C the full amount due to him under the sub-contract. A had in hand one-fourth of the original contract price, which was more than sufficient to pay the wages owing by Cto D. The learned Judge, reversing the decision of the District Court, held that D was entitled to a charge for his wages upon the money retained by A and hut for the charge, payable to B. The question is difficult and important, but the suggestion may be ventured that the injustice would have been avoided if the Act had
m) 17 N.Z.L.R, 712.
n) 10 G.L.R. 380.
22
CONTRACTORS’ AND WORKMEN’S LIENS
made it clear that more consequence should be given to the last phrase of section 52 “in respect of the work done or to be done under the contract of the sub-contractor by whom he is employed.” Standing by itself this phrase limits the worker’s charge to a charge upon moneys, no matter by whom or to whom payable, payable in respect of the sub-contract upon which he is working, and that in the case under consideration D’s charge could only affect such of the money payable by A to B as was payable to B in respect of B’s sub-contract with C, upon which D was working. The criticism at once suggests itself that it is not always possible to allocate portions of moneys payable to a superior contractor, to his various sub-contracts, but section 60 (1) of the Act is of some assistance in lessening that difficulty. That sub-section reads as follows:
“Every contractor who sublets any part of the work to be done by him under any contract shall immediately upon entering into any sub-contract give written notice to the employer stating the name of the sub-contractor, the work to be done by him, the amount of the sub-contract, and the mode of payment. ’ ’
Probably, too, in practice the architect would be able to help by giving due consideration to the subcontracts when deciding upon progress payments and allocating the amount of such progress payments accordingly.
However, the decision in Mather and another v. Newman and others (o) stands in the Books, and contractors must protect themselves as best they can by framing their general conditions of contract very carefully with regard to protection against nonpayment of sub-contractors and workmen and bv
(o) 10 G.L.R. 380 (Cooper, J.).
PRIORITY OF LIENS AND CHARGES
40
dealing only with snb-contractors in as strong financial position as possible.
In sonic cases the further question may have to be answered whether a lien upon land and chattels under section 49 and a charge upon moneys under sections 51 and 52 are simply alternative methods of securing the payment of the same amounts (excepting, of course, that the lien of a worker is limited to thirty days' earnings whereas his charge is unlimited) or whether it is possible for a claimant under certain circumstances to recover more by claiming a lien than by claiming a charge. A claim for a lien can only be made against the employer; a claim for a charge can be made against the employer, a contractor, or sub-contractor.
In any event the employer may always discharge the Hen by paying into Court whatever money he is liable to pay tinder his contract (p). The lien is in consequence merely a security for the payment of such money just as a mortgage under New Zealand law is a security for the repayment of the money intended to be thereby secured, and is regarded as personal property. A lien upon land, created by the Act of 1908 No. 204 takes its origin only in that Statute and is merely the basis for a proceeding in a Court of competent jurisdiction for the enforcement of payment of a debt (q).
The distribution amongst the claimants of the moneys payable by the employer discharges the liens
(p) Sees. 69, 70, 86. N.B.—ln Sec. 69 the words "of the amount claimed" were substituted for the words "such amount" by the Commissioners for consolidating the Statutes. No mention was made of this in their Report.
(q) Waitere Marumaru v. Tutira Waaka Hakaria, 1917 G.L.R. 237 (Edwards, J.), at p. 238. N.B.—Under Sec. 77 the right of lien passes to the personal representatives of the Lien-holder upon his death. See Infra, p. 42. See also the wording of Sec. 55, Subsec. 3, "the time for payment of the money in respect whereof the lien is given."
41
CONTRACTORS’ AND WORKMEN’S LIENS
on the land as well as the charges on such moneys (r). Payment of the contract price by the employer is the only end that can be gained. Both the lien and charge are, therefore, strictly speaking charges upon money payable. Now the original contractor is restricted to a claim against the employer for a lien upon the employer’s property, but it may be that the Act gives a sub-contractor the opportunity under certain circumstances of obtaining payment of his claim by pursuing one remedy rather than another, and gives a worker a like opportunity within the compass of thirty days’ earnings. Obviously a worker, if he claims more than thirty days’ wages will proceed against the contractor or superior contractor rather than against the employer, provided he can foresee success to his efforts in both directions.
The practice generally followed is to give notices of intention to claim both a lien and a charge, where that is practicable. In the case of a claim for wages attention should be paid to Part I. of the Act, although a consideration of its provisions is beyond the scope of this work. Part 1., it may be noted, is made subject to the succeeding Parts of the Act (s). Once the fact is grasped that the only thing to be divided amongst all claimants is the money representing the contract price for the work, there should be no insuperable difficulty in apportioning such money equitably and according to some single general principle. Such general principle might be found by making, as was suggested in discussing the case of Mather and another v. Newman and others (t) each sub-contract responsible for its derivative
'a) 1916 N.Z.L.R. 1181
{a) i;mo i\.z,.i_i.rt. 1101. at p. 585 (Cooper, J.l.
(*) Sec. 2 (2).
(t) Supra p. 21, 10 G.L.K, 380 (Cooper. J.l.
PRIORITY OF LIENS AND CHARGES
42
sub-contracts (that is, only the money payable in respect of such sub-contract, should be available to meet the obligations incurred by such sub-con-tractor) and by allowing one amount only to be recovered by either a lien or charge.
In Haddock and another v. Pedersen (a) the employer and contractors agreed that the latter should have a lien upon the land for all moneys payable to them for all work done and materials supplied, including all materials wrought up and all materials purchased for and delivered on the works. Edwards, J., in an unconsidered judgment held that the operation of the clause in question was limited to work done and to materials which had been supplied and which passed to the employer under the conditions of the contract, and also that if the clause in question gave to the contractors any lien beyond the lien given by the Act, that lien could not be enforced as part of the lien given by the Act.
Assuming that no agreement could be enforced that prejudiced the rights of third parties such as sub-contractors or workmen under the Act, it is difficult to see why parties to a contract should not agree to allow each other to employ the machinery of the Act to matters outside its scope. General or particular liens can arise through agreement (b), and persons entitled to such liens may expressly stipulate for a power of sale, and prescribe the terms of sale in the event of the lien remaining unsatisfied after a certain date; there is nothing to prevent parties from attaching such conditions at the time the lien arises (c).
o) 1916, N.Z.L.R. 1181
(6) Halsbury, Vol. XIX., pp. 7, 9 and 11
c) Halsbury, Vol. XIX., p. 27
43
CONTRACTORS’ AND WORKMEN’S LIENS
Chapter V
LIENS.
By section 49 of the Act, a contractor who does any work in connection with any land or chattel “is entitled to a lien upon the whole interest of the employer in that land or chattel for the contract price of the work.” The lien, therefore, is given not upon the whole land or chattel, but upon the whole interest of the employer in it. Unless, therefore, “the Mortgagee” is an employer within the meaning of the Act, the lien does not affect the interest of the Mortgagee. The word “employer” is defined by section 48. “Employer” “means ( d ) any person by whom a contract is made with another person for the performance of work, or at whose request or upon whose credit or on whose behalf with his privity and consent the work is done.” So far, therefore, the definition does not include a mortgagee. The definition, however, goes on to say that the word “employer” “includes also all persons claiming, under him (that is, the employer as above defined) whose rights are acquired after the work in question is commenced.” If, therefore, work has been commenced in connection with a chattel, and subsequently the employer mortgages the chattel, the contractor’s lien in respect of the work so commenced appears to extend to the interest of the mortgagee ( e).
(d) In the 1892 Act the definition of i ‘ Employer ’ ’ reads “employer means and includes.’’ No mention of the
alteration was made by the Commissioners in their Report, (e) In re A, & T. Burt Ltd., 21 N.Z.L.E. 540 (Williams. J.), approved in Somerville v. Briscoe and Coy. Ltd., 8 G.L.R, 137 (Cooper, J.).
LIENS
•21
In a subsequent case (/) Williams, J., had to consider what is the meaning of "the whole interest of the employer in the land." At the time the work was begun and the time the lien attached, there was an equitable mortgage of the land to the plaintiff company. The question was did the lien take precedence of that equitable mortgage? The plaintiff's rights were acquired before the work in question had commenced, and it, therefore, did not come within the definition of "employer." The lien is given only upon the whole interest of the employer in the land and not upon the interest of anyone who does not come within the definition of "employer." The lien was held not to extend to the equitable interest of the plaintiff company. Difficulty may arise regarding loan moneys retained by a mortgagee pending completion of a building to be erected on the mortgaged premises. Are such moneys a part of the interest of the mortgagee in the land? Iff).
McConochie and others v. Webb and others ( g) decided that under the circumstances of the case, although the contract was made by the husband, the work was done on behalf of the wife, who owned the land, with her privity or consent, and she was therefore the “employer.”
As to what circumstances constitute a person owner or employer was considered by Chapman, J., in Aitken v. McLean ( h j). M. sold a farming property to W under an agreement for sale and purchase whereby a small deposit was paid and it was
f) The Commercial Property and Finance Company Ltd. v. the Official Assignee of Waghorn and A, & T. Burt Ltd., 24 N.Z.L.B. 655.
[ff) Aicken and Son v. Bradley, 1916 N.Z.L.B. 659 (Cooper, J ( g ) 24 N.Z.L.B. 229 (Edwards, J.).
(hj) 1923 G.L.R. 126,
28
CONTRACTORS’ AND WORKMEN’S LIENS
provided that should the purchaser erect on the land permanent buildings of a value of not less than £250 to the satisfaction of the vendor certain other payments would be postponed. W made a contract with A for the erection of a house at a cost of £1,155 12s. Before the house was finished W got into difficulties, and M rescinded the agreement for sale and purchase, M having never expressed his approval of the house in terms of the agreement. A claimed a lien on the land in respect of the balance due to him by W for the cost of the house, but it was held that the proviso in the agreement was not a "consent in writing" within section 50, and therefore M. was not an owner within that section nor was he an employer under the definition in section 48.
The provisions of the Act as to registration of liens over lands are included in the following sections:—
74. Where a person entitled to a lien on land intends to have recourse to the land, he must register his lien against the land in the following manner:—
(a) (i) Where the land is subject to “The Land Transfer Act, 1908” a copy of the statement of claim of lien and affidavit, certified by the proper officer of the Court in which the original has been filed, shall be lodged in the office of the District Land Registrar of the district in which the land is situated, who shall thereupon register the claim of lien on the title to the land in question in the manner in which caveats are required to be registered.
(ii) Notice of the claim of lien shall he given by the Registrar, by letter through the
29
LIENS
post office, to the registered proprietor, and to every mortgagee or incumbrancee of the land.
(iii) The registration shall be deemed to have been made at the time of the day on which the claim of lien is lodged in the office.
(b) Where the title to the land is not subject to "The Land Transfer Act, 1908," a claim of lien may be registered in the same manner as any deed or instrument affecting such land may by law be registered.
75. A claim of lien on land shall not be liable to any stamp duty. A fee of one shilling and no more shall be payable on the registration of a claim of lien.
76. (1) A claim of lien on land must be registered not later than thirty days after the completion of the work.
(2) If the claim of lien is not registered within that time the lien shall be extinguished.
(3) Until registration the land shall not be affected by lien or claim of lien.
McConochie and others v. Webb and others (i) is also important owing to the interpretation given by it to the relation of the Act with the Acts dealing with Registration of Titles to land, for in that case, after the contractors had become entitled to a lien but before the time within which they could register such a lien had lapsed, the wife sold the land to a bond fide purchaser for value without notice of the
(t) 24 N.Z.L.R. 229 (Edwards, J.).
CONTRACTORS’ AND WORKMEN’S LIENS
47
lien. Portion of the judgment may well be quoted in full:—
"The lien given by section 3 (k) of the Statute is a lien only upon the whole interest of the employer, and does not affect the interest of any other person, unless that person has consented in writing, under section 4 (I). The interpretation clause, section 2 (to), however, provides that the word 'employer,' unless inconsistent with the context, includes all persons whose rights are acquired after the work in question is commenced. The effect, as was held by Mr. Justice Williams in A. & T. Burt Ltd. v. Upper Magnetic Gold Dredging Co., Ltd. (n), is that the mortgagee of a chattel, who claims under a mortgage executed after the work in respect of which a lien is claimed, has been commenced, takes subject to that lien. The case is different, however, with respect to land, whether subject to the provisions of the Land Transfer Act or not, for by section 6 of the Act it is provided that 'When land upon which a lien attaches is mortgaged under a mortgage duly registered before the registration of a lien against such land under the contract in respect of which the lieu arises, the mortgage shall, unless the mortgagee is a parly to the contract, have priority over the lien; but if the mortgagee is a party to the contract the lien shall have priority.' Here the principle is recognised that those dealing with the owners of land are entitled to rely upon the Register. Accordingly, the interest of a mortgagee who takes prior to the registration of a lien is protected, although, apart from this provision, and from section 29 of
(A) Sec. 40 of 1908 Act.
(0 Sec. 50 of 1908 Act.
(m) Sec. 48 of 1908 Act
(n) 21 N.Z.L.R. 540.
31
LIENS
the Art, to which I shall presently refer, he would, by virtue of the interpretation clause and of section 3 of the Act, take subject to the liability of the employer.
"Section 27 of the Act, under the general head, 'Remedies against Land,' provides that 'When a person entitled to a lien upon land intends to have recourse to the land, he must register his lien against the land.' Registration is to be effected by registering a copy of the statement of claim of lien and affidavit, certified by the proper officer of the Court in which the original has been filed. The statement of claim and affidavit referred to are the statement of claim and affidavit required by sections 19 and 20 of the Act to be filed in proceedings to enforce a lien. Section 29 of the Act provides that 'A claim of lien upon land must be registered not later than thirty days after completion of the work. Tf the claim of lien is not registered within that time the lien shall be extinguished. Until registration the land shall not be affected by lien, or claim of lien.'
"The effect of these provisions is that a person entitled to a lien upon land cannot enforce that lien unless (a) he has, hefore the completion of the work, or within thirty days after completion, given notice to the owner, under section 8 of the Act, 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; (b) he has commenced proceedings under sections 14 to 26 of the Act to enforce his lien against the land; (c) he has, not later than thirty days after the completion of the work, registered a copy of his statement of claim and affidavit in such proceedings against the land, ff he fails to comply with any one
49
CONTRACTORS’ AND WORKMEN’S LIENS
of these requirements his lien upon the land is extinguished not merely against persons claiming under the owner of the land, but also against the land in the hands of the owner himself, although the debt may be due by the owner himself, and he must proceed for the recovery of the debt due to him in the ordinary way.
"Lastly, it is provided that, until registration, the land shall not be affected by lien, or claim of lien. "These provisions appear to me to show that it was the intention of the Legislature that those dealing with owners of land, holding under duly registered titles whether under the Land Transfer Act or not, may in this case, as in other cases, safely rely upon the Eegister. It is, in my opinion, impossible to give any other meaning to the last paragraph of section 29 than its words unequivocally import. To hold that a bond fide purchaser for land, against which no lien has been registered, is affected by an unregistered lien woud be to deny all meaning to the words of that paragraph.
"Counsel for the respondents urges that, if this construction is put upon section 29, then section 6 is redundant and useless. This is not quite the case, for section 6 provides that 'if the mortgagee is a party to the contract the lien shall have priority over the mortgage, and, further, that 'all moneys which a mortgagee may pay in respect of a lien shall he added to and form part of the principal moneys and shall hear interest accordingly.' These provisions have an independent effect, and section 6, so far from easting a doubt upon the meaning of section 29, shows the same intention on the part of the Legislature. There certainly could be no reason for preserving the rights of a mortgagee, while at the same time exposing an innocent purchaser for
33
LIENS
value, without notice of a lien, to the loss of au estate honestly purchased and paid for by him.
“Upon the true construction of the Act, therefore the purchaser of land against which no lien has been registered is, in my opinion, not affected by the existence of an unregistered lien, whether the title to such land is or is not under the provisions of the Land Transfer Act. Further, as it is admitted that the appellant Hall is a bond fide purchaser for value, without notice, from a duly registered proprietor, under the provisions of ‘The Land Transfer Act, 1885,’ and that the transfer under which he claims has been duly registered, it appears to me to be clear that he comes within the protection of section 55 of that Act. For this the case of Bishop v. Rowe (o), which, although upon the construction of a different Statute, is indistinguishable in principle from the present case, is sufficient authority.”
The decision has been followed in several cases amongst which is Somerville v. Briscoe & Co., Ltd. (p), an oral judgment of Cooper, J. The learned Judge there expressed the opinion that a purchaser of land, especially when the title is under the Land Transfer Act, cannot be said to be “ claiming under ’ ’ the previous proprietor, as no interest of any kind remains in the former registered proprietor and the purchaser claims under and by virtue of the Certificate of Title issued to him.
In re Vansittart Ex parte Brown 1893 2 Q.B. 377, and In re Brail, Ex parte Norton 1893 2 Q.B. 381, were cited in support of the proposition that a purchaser for value in good faith from the donee under a voluntary settlement was not a person claiming under the donee or under the settlement within the
(o) 23 N.Z.L.R. 66, 5 G.L.B. 504 (C.A.).
(p) 8 G.L.E. 137.
D
51
CONTRACTORS’ AND WORKMEN’S LIENS
meaning of section 47 of “The Bankruptcy Act, 1883,” and that his purchase could not be attacked. These cases, however, hardly bear out such contention.
Cooper, J., in the same case ( q ) held that weight must be given to the words “is to be done” in the definition of “owner,” and that, therefore, a person who had purchased the land after certain material had been supplied could not in respect of such material, be said to be the “owner” of the land within the meaning of the Statute.
The learned Judge also considered that before registration of their claim of lien the claimants had no species of equitable interest in the land (r).
The lien on land attaches to the land on which the house is built: not the exact piece of land which the house covers, hut the parcel of land upon which the building is an improvement, and which is included in the instrument of title thereto. It may in the case of a farm, be a large area of land (s). In the case of the construction of a road, the lien attaches to all the land included in any instrument of title over any part of which the road is constructed (t). There should be separate liens over the part included in each separate parcel owned by the employer in respect of the part of the road included in such parcel (a).
Registration does not affect the priority of liens laid down in section 54. The power to register liens
(q) 8 G.L.K., p. 140.
(r) Ibid., p. 142.
(*) Bassett v. Spurdle and McLeod, 26 N.Z.L.R. 84 (Stout, C. J.), and Black v. Shaw and Official Assignee of Shaw :;." N.Z.L.R. 194 (Denniston, J.).
(*) Black v. Shaw and Official Assignee of Shaw, Übi supra p. 197.
(a) Ibid., p. 197.
35
LIENS
against the land given by section 74 is for the purpose of protecting lienors against dealings with the land which would destroy their liens, and not for the purpose of giving one lien of the same class a priority over another or of affecting the priority which the Act gives to one class of liens over another (b).
In a case where a lien was registered before a second mortgage and subsequent liens, and there was insufficient money available from the land to pay even the first registered lien, the second mortgagee was excluded and the available money divided amongst all the registered lien holders in payment first of the wages liens, and secondly ratably of other liens in their respective classes (c).
If judgment is recovered against an employer or owner on a claim of lien, the Court (d) may direct a sale of the land or chattel to take place at any time after one month from the recovery of the judgment, and may direct such public notice, not being less than fourteen days of such intended sale as the Court deems necessary (e).
It may be advisable in tbe summons to include a prayer for an order directing a sale of the land (/). The Act does not create or give to any person, any right or remedy against any land vested in the Crown or in any body corporate, Board or local authority procuring or undertaking the performance of any work for any public purpose (g).
(6) Easson and another v. Knight, 13 G.L.R. 625 (Williams. J.). (c) Ibid.
( d ) The word “Court” has been substituted for the words” Judge or R.M., ” in the 1892 Act.
(e) Sec. 83.
(/) Infra p. 52.
(g) Sec. 94.
53
CONTRACTORS’ AND WORKMEN’S LIENS
Native freehold land within the meaning of the Native Land Act, 1909, cannot be the subject of a lien (hj).
There is nothing in the Act expressly stating that the Crown shall be bound thereby (i).
(hj) Waitere Marumaru v. Tutira Waaka Hakaria, 1917 G.L.R 237 (Edwards, J.).
(i) See Sec. 6 (j) of "The Acts Interpretation Act, 1908."
CHATTELS
54
Chapter VI.
CHATTELS.
(a) Nok-Possessoey Liens
While it has made registration of liens over land necessary, the Act does not insist upon registration of liens over chattels. The assistance of the Chattels Transfer Act in this respect has not been invited.
If judgment is recovered against an employer or owner on a claim of lien, the Court (k) may direct a sale of the land or chattel to take place at any time after one month from the recovery of the judgment, and may direct such public notice, not being less than fourteen days of such intended sale as the Court deems necessary (I). This provision, applying, as it does, to non-possessory liens, is quite different from the provision contained in section 91, which applies to possessory liens (m).
It may be advisable, in the summons, to include a prayer for an order directing a sale of the chattel ( n ).
Where the lien is on a chattel which is affixed to land, the Court may direct the sale of the chattel, and may authorize its removal from the land to which it is affixed ( o ).
( b ) Possessory Liens.
At common law possessory liens merely confer on the holder of the goods or chattels in respect of
(k) The word “Court” has been substituted for the words “Judge or E.M. ’ ’ in the 1892 Act.
(I) Sec. 83.
(m) Infra p. 38.
(n) Infra p. 52
L
(o) Sec. 84
55
CONTRACTORS’ AND WORKMEN’S LIENS
which they are claimed, a passive right to detain such goods or chattels until the debt is paid, and cannot be enforced by sale of the property held, although there may be expense incurred in its detention ( p).
Although the liens created by the Act are nonpossessory, and it is such liens that are mainly dealt with, the Act has made possessory liens more effective by adding a power of sale to the rights of the lien-holder at Common Law (q).
The right given to owners of threshing machines to have the amount of the reasonable cost of the threshing of a crop made a charge on the proceeds of the realization of the crop under any security under “The Chattels Transfer Act, 1908,” that may be subsisting thereover, may be noted here (r).
If the amount to which the Possessory Lienholder is entitled remains unpaid for two months after it ought to have been paid, he may cause the chattel to be sold by auction.
One week’s notice of the sale shall be given by advertisement in a newspaper published in the locality in which the work was done, or, if there is no newspaper published in such locality, then in a newspaper circulating in the neighbourhood, stating the name of the person indebted, the amount of the debt, a description of the chattel to be sold, the time and place of sale, and the name of the auctioneer, and leaving a like notice in writing at the last known place of residence (if any) of the owner, if he is a resident of the locality ( s ).
(p) Halsbury, Vol. XIX., page 3 ( q ) Sec. 91.
(r) Sec. 95.
(a) Subsec. 2 of 91.
CHATTELS
39
The proceeds of the sale shall be applied in payment of the amount due under the lien, and the costs of advertising and sale, and any surplus shall be paid over to the Clerk of the Magistrate's Court at or nearest to the place of sale, to be held by him for the benefit of the person entitled to it (t).
It will be noticed that the Statute gives no express right to deduct the expenses incurred in its detention, from the proceeds of the sale of the chattel.
( t ) Subsec. 3of 91
CONTRACTORS’ AND WORKMEN’S LIENS
57
Chapter VII
BANKRUPTCY, ASSIGNMENT, ETC.
The right of a sub-contractor to a charge upon the money payable by the employer to the contractor is not defeated by the bankruptcy of the contractor even where the act of Bankruptcy occurred prior to the giving of the notice of claim (a). A lien on land is a security within the meaning of "The Bankruptcy Act, 1908" (6).
Moneys received by the contractor from the employer under or in respect of the contract work or undertaking shall not be liable to be attached or charged except by the workers as hereinafter mentioned, until all wages due or to accrue due to the workers have been fully paid and satisfied; and the contractor shall apply all such moneys in payment of the wages due and to accrue due to the workers (c).
A sub-contractor's charge upon the money payable by an employer to the contractor is good as against an attachment order made upon the employer under a judgment against the contractor in the Magistrate's Court, even though such attachment order was served upon the employer before the
(a) In re Williams ex parte the Official Assignee, 17 N.Z.L.K. 712 (C.A.), overruling In re Smith, 12 N.Z.L.T?. 543 (Connolly, J.).
(b) In re Williams ex parte the Official Assignee. 17 N.Z.L.K. 712 (C.A.); In re B. E. Williams, 1016 X.Z.L.R. 650 (Chapman, J.)- Quaere, Bonthorne and another v. Maude and hia wife, 26 N.Z.L.R. 317 (Stout. C. J.).
(c) Sec. C
BANKRUPTCY, ASSIGNMENT, ETC.
58
sub-contractor served the employer with notice of his intention to claim a charge under the Act ( d).
Every assignment, disposition, or charge (legal or equitable) made or given by the contractor to any person whomsoever, other than his workers for wages due to them, of or upon the moneys due or to become due to him under or in respect of the contract, work, or undertaking, shall have no force or effect in law or in equity as against all wages due and to accrue due to the workers (e).
In Collins v. Cooper and others (/) Denniston, J., held that an assignment by the contractor of the contract-price made prior to the commencement of work by sub-contractors who subsequently served the employer with notice of a claim of charge, defeated such charge. This decision was held to its strict limits by Chapman, J., in Godber v. Manning and another, and Chapman (sub-debtor) ( g) was criticized by Stout, C. J., in Penketh and others v. Midwood and another ( h j) and was finally set aside by section 3 of “The Wages Protection and Contractors’ Liens Amendment Act, 1914,” which reads as follows:
“Section 51 of the principal Act is hereby amended by adding the following as sub-section 2 thereof:—
(2) Every assignment, disposition, or charge (legal or equitable) made or given by the contractor who contracted with the sub-contractor, or by any superior contractor, to any person whomsoever (other than his workers for wages due to them) of
(d) Godber v. Manning and another and Chapman (sub-debtor), 33 N.Z.L.R. 603 (Chapman, J.).
If) Sec. 5.
(f) 31 N.Z.L.R. 277, 14 G.L.R. 295.
(g) 33 N.Z.L.R. 603.
(hj) 33 N.Z.L.B. 1399, 16 G.L.R. 584.
59
CONTRACTORS’ AND WORKMEN’S LIENS
or upon the moneys due or to become due to such contractor or superior contractor under or in respect of the contract, work, or undertaking shall have no force or effect at law or in equity as against the lien and charge of a sub-contractor under the Act.”
In Baskett v. Gibb's Beach Gold Dredging Company, Ltd. (i) Williams, J., held that the amount for the time being due to the contractor under the contract, referred to in section 49 sub-section (a) is the amount that the contractor would be entitled to recover if he brought an action in the ordinary form, and is subject to the same right of set off on the part of the employer (k). A claim for unliquidated damages could not, however, be set off. Before that could be done such a claim would have to be prosecuted to judgment by the employer in a separate action (I).
In the event of the death of a person entitled to a lien, his right of lien shall pass to his personal representatives (m). The marginal note to the corresponding section in the 1892 Act reads "Death of lien-holder or assignment of lien." Under section 6 (f) of "The Acts Interpretation Act, 1908," marginal notes to an Act shall not be deemed to be part of such Act (n).
Probably section 82 was inserted in the Act to prevent delay, for the convenience of other claimants
(t) 21 N.Z.L.R. 201. See Supra p. 7.
(k) But see Halsbury, Vol. XXV., p. 487, Gathercole v. Smith, 1881, 7 Q.B.D. 626 C.A.
(I) 21 N.Z.L.R., p. 202.
m) Sec. 77.
(n) The original Bill included in this section the words '' and the right of a person entitled to a lien may be assigned by an instrument in writing." but while they were struck out by the Labour Bills Committee of the House of Representatives in 1891, the corresponding marginal note survived.
BANKRUPTCY, ASSIGNMENT, ETC.
60
who might be awaiting the result of the deceased claimant’s action.
It is assumed that on the death of a person entitled to a charge, his right of charge also passes to his personal representatives, and in the event of his bankruptcy a right of lien or charge passes to his Assignee (o).
Halsbury's Laws of England (p) lay it down that a Possessory Lien cannot be assigned, citing Wilkins v. Carmichael (q) as the authority for such proposition. Legg v. Evans and Wheelton (r) was perhaps a stronger case in its favour, but support of the principle seems to have weakened in McCombie v. Davies (s) and Donald v. Suckling (t). However, the learned authors of the chapter on Liens under the heading "Transfer of Vendor's and Purchaser's Liens" (a) concede that the benefit of a lien may be assigned with the debt in respect of which it arises, citing Bull v. Faulkner (b), which really was a case of a Solicitor's Possessory Lien. The headnote of the case is:—
“A solicitor’s lien is a dormant security in which it differs from a mortgage; but a solicitor may assign a debt due to him for costs, with the benefit of any lien he may have upon any documents for such costs. The claim is equally valid, whether the deeds are in the actual possession of the solicitor or of his assignee; and such lien may pass to the solicitor’s assignee, if the deeds were handed over
\o) Hudson v. Granger, 5 B. and Aid. 27, 106 E.R. 1103
(p) Vol. XIX., p. 3.
(g) 1779, 1 Doug. K.B. 101; 99 E.R. 70.
(r) 6 M. and W. 36; 151 E.R. 811. k
(*) 7 East 5; 103 E.R. 3.
(*) L.E. 1 Q.B. 585. See judgment of Mellor, J
(a) Halsbury, Vol. XIX., p. 18,
(6) 2 De G. and Sm. 772; 64 E.R. 346.
61
CONTRACTORS’ AND WORKMEN’S LIENS
in the solicitor's presence and at his request to his assignee, without his actually touching them."
The liens and charges created by the Statute are non-possessory (c), and the better opinion seems to be that lien and charge holders can assign their debts with the benefit of the accompanying liens and charges (d).
As a worker's or contractor's lien is a security of a higher nature than an ordinary debt or bill of exchange, an agreement that the acceptance of a bill from the contractor is to destroy the lien of the worker or sub-contractor over the employer's land, must be proved before such acceptance can be held to have that effect (e). If the acceptance of the bill of exchange constitutes a giving of credit within the meaning of section 67 (d), the position mav be different (/).
(c) Supra p. 3.
(d) As to transfer of the equitable lien of vendor or purchaser See Halsbury, Vol. XIX., p. 18.
(e) In re Duncan and Abbott, 1919 N.Z.L.R. 97 (Stout, G. J
(/) °°- V ' The Quartz Reef Point Sluicing Coy. Ltd 28 N.Z.L.R. 758 (Williams, J.). Infra p. 52.
45
PROCEDURE
Chapter VIII.
PROCEDURE.
The dominant idea in approaching consideration of the Procedure under the Statute should be that the proceedings in most cases (g) are taken not against the claimant's debtor but against a third party. The proceeding under the Act is not a proceeding against the debtor to recover the debt, but a proceeding against the person whose lands are sought to be charged, or in whose hands are the moneys sought to be charged, for the purpose of enforcing the charge (hj). Eemedies against the debtor must be pursued in a separate action in the ordinary form (i) and are preserved by the Statute J».
The giving of the notice of the intention to claim a lien or charge is the foundation of the proceedings and unless it is given, the lien or charge does not attach (I).
The notices to claim a lien and a charge are quite distinct and independent, but where the subcontractor had only given notice of intention to claim a lien which had lapsed for failure to register, the Court made an order protecting him, seeing that as a matter of fact the sub-contract was uncompleted, and that he was still entitled to give a notice claiming a charge (m).
(g) A claim of lien by the contractor against the land of his employer is an exception.
( h j) In re Williams ex parte Official Assignee, 17 N.Z.L.R. 712 (C.A.) (Edwards, J.), at p. 724.
(i) See Rules under statute N.Z. Gaz., 11th Sept. 1919. ( k ) Sec. 93. (0 Sec. 55 (4), Sec. 56 (4).
(m) Be Marton Club House Buildings Coy. Ltd., 10 G.L.R. 582 (Cooper, J.).
63
CONTRACTORS’ AND WORKMEN’S LIENS
The notice may be in one of the Forms in the Third Schedule to the Act, or to the like effect; hut its validity shall.not he affected by any inaccuracy or want of form, if the property or money sought to be charged, and the amount of the claim, can be ascertained with reasonable certainty from the notice ( n ). The notice must be in writing (o). It must also be signed, but it need not be signed by the claimant personally, or where the claimant is an incorporated company, sealed with its common seal. An agent may sign on behalf of a claimant, and in the case of a company, the appointment of the agent need not be made under its corporate seal (p).
The notice may be given although the work is not completed or the time for payment of the money in respect whereof the lien or charge is claimed, has not arrived ( q ) but it must be given within thirty days after the completion of the work in respect of which it is claimed ( r ). Thus the ascertainment of the precise moment of completion in many cases becomes of great importance. The words “completion of the work” in section 55 refer to the completion of the work which the sub-contractor contracts with the contractor to perform (s), while the same words in section 59 sub-section 2 may refer to
(?i) Sees. 55, 56 and 57. For a case where the land was not sufficiently described see Pollock v. Miramar North Building Deposit and Mortgage Coy. Ltd., 29 N.Z.L.R. 1014 (Stout. C. J.).
(o) Be Marton Club House Buildings Coy. Ltd., 10 G.L.R. 582 (Cooper, J.).
(p) Henry F. Moss Ltd. v. "Wilson and another, 34 N.Z.L.R. 31] (Sim, J.).
(q) Sec. 55, Subsec. 3; Sec. 56, Subsec. 3.
(r) Sec. 55, Subsec. 1; Sec. 56, Subsec. 1
(») J. W. Easson & Co. v. Murray. 23 N.Z.L.R. 802 (Denniston, J.). Taupo Totara Timber Cov. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77 (Edwards, J.).
PROCEDURE
64
the whole work which the contractor contracts with the employer to perform (f).
As far as sections 55 and 56 are concerned everything the contractor bargained to do must he done before the contract is completed. Practically completed does not mean actually completed (a).
‘ ‘ There was a dispute as to the time at which the work on the sub-contract was completed. I found that the architect had given, on the 11th of May, a certificate of completion, subject to the completion of a small detail in the work, and that this was not done until the 12th of July—which I held to he the date of the completion of the sub-contract.” ( b)
A stipulation was contained in a sub-contract that the work done thereunder must he in accordance with the specifications and general conditions of the original contract, which empowered the architect to require the contractor to remove defective work and to replace the same, and the original contract provided that the works should not he deemed completed until the architect had given his final certificate. It was held that this did not postpone the date of the completion of the work done under the sub-contract until the original contract had been passed by the architect (c).
The desire on the part of claimants who have supplied material to contractors, to include as much as possible of their claims, in their liens or charges
(t) Taupo Totara Timber Co. Ltd. v. Smith and Egden, 30 X.Z.L.R. 77 (Edwards, J.). And see now Sec. 4 "The Wages Protection and Contractors' Liens Amendment Act, 1914."
(a) Walker Bros. v. Roberts and another, 10 G.L.R. 629 (Williams, J.); Carpenter v. Public Trustee and others, 1918 G.L.R. 272 (Herdman, J.).
(b) Denniston, J., in Collins v. Cooper and others, 31 N.Z.L R 277 at p. 279.
(e) J. W. Easson and Co. v. Murray, 23 N.Z.L.R. 802 (Denniston, .i).
65
CONTRACTORS’ AND WORKMEN’S LIENS
has brought into prominence in a number of cases (d) the question whether such materials have been supplied in pursuance of a single continuing contract, to use the phrase in Phillips on Mechanics' Liens (e), cited in several instances by Stout, C. J., or in pursuance of separate contracts. "If materials are furnished in pursuance of a single continuing contract such as to furnish materials for a building about to be erected or in progress of construction the period within which the statement or suit must be filed commences to run from the delivery of the last item. But if the materials are furnished under separate orders, in pursuance of a general agreement to furnish such materials, as may be needed from time to time, and as ordered, then each order or request is a separate contract and the statement or suit must be filed within the time limited after delivery upon each order." (/) The rule was succinctly stated by Edwards, J., in Taupo Totara Timber Company, Ltd., v. Smith and Egden (g): — "These cases {h) show that it is incumbent upon the plaintiff to show that its notice of lien under
(<J) A. and T. Burt Ltd. v. Upper Magnetic Gold Dredging Coy. Ltd., 21 N.Z.L.R. 540, 5 G.L.E. 2 (Williams. J.); Said v. Barnett, 22 N.Z.L.R. 964, 6 G.L.R. 456 (Stout, C. J.); Halley and Ewing v. Searle, 24 N.Z.L.R. 151 (Stout, C. J.) ; In re Marton Club House Buildings Coy. Ltd.. 10 G.L.R. 582 (Cooper, J.) ; Johnson v. McLeod and others. 11 G.L.R. 235 (Cooper, J.); Taupo Totara Timber Coy. Ltd. v. Smith and Egden, 30 N.Z.L.R. 77 (Edwards. J.) ; Penketh and others v. Millwood and another, 33 N.Z.L.R. 1399 (Stout, C. J.) ; Carrara Ceiling Co. Ltd. and others v. Taranaki Amusements Ltd. and others, 1918 G.L.R. 200 (Edwards, J.).
(«) 3rd ed.
(/) Ibid., p. 564.
30 N.Z.L.TC. 77, at p. 83. See Supra p. 9.
•> / ” w mu Kjwpiy* y. *7. [h) A. & T. Burt Ltd. v. Upper Magnetic Gold Dredging Cot. Ltd., 21 N.Z.L.E. 540, 5 G.L.R* 2 (Williams, J.); Reid v Barnett, 22 N.Z.L.R. 964. 6 G.L.R. 456 (Stout, C. J.); re Marton Club House Buildings Coy. Ltd., 10 G.L.R. 582 (Cooper, J.).
PROCEDURE
66
section 55 was given within thirty days after its claim arose. They also show that, unless there was a binding contract between the defendant Egden and the plaintiff for the supply of all the material actually supplied by the plaintiff to the defendant Egden, the supply of each item of material gave rise to a separate claim under the Statute, and that each such claim comes within the limitation of time prescribed by section 55.”
The notice must he given to the owner, contractor, or superior contractor as the case may be ( i ). As to what was sufficient service upon a Company under the circumstances of the case under consideration, see Re Marton Club House Buildings Co., Ltd. (k).
Notice of having made such claim must also be given 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 (I).
Where notice has been given of an intention to claim a lien or charge, and the person to whom it is given does not pay or make satisfactory arrangements for paying to the claimant the amount claimed, the claimant may recover the amount of the lien or charge from the owner, if liable, of the land or chattel, or the person by whom the money subject to the charge is payable (m).
Claims may he enforced and questions and disputes between persons claiming a lien or charge and any other person liable or alleged to be liable, to
i) Sec. 55 (1) and 56 (1).
(fc) 10 G.L.E. 582 (Cooper, J.).
(I) Sec. 55 (2) and 56 (2).
N.B. —See Sec. 66 (3) "the summons which shall be directed . . . and also to rvery person who ..." Infra p. 54.
m) See. 61
E
67
CONTRACTORS’ AND WORKMEN’S LIENS
pay any amount claimed, or otherwise interested in any property or money which may be affected by a lien or charge or claim of lien or charge and also between persons or classes of persons claiming a lien or charge, may be settled on application in a summary manner to any Court having jurisdiction (w).
The Supreme Court has jurisdiction in all matters, and the Magistrate's Court in all cases in which the amount in question does not exceed its jurisdiction (o).
The Statute contemplates and authorizes only one Proceeding in one Court (p). The method of procedure under Part 111 of "The Wages Protection and Contractors' Liens Act, 1908," is distinct from that under Part I. of the same Act (q).
Proceedings are commenced by summons which may be in any form prescribed by rales of Court or other practice of the Court (/").
Where a claimant issued a writ of summons instead of a summons under the Act, Edwards, J., on a summons in chambers, set the writ aside (s).
A statement of the claim shall be filed by the plaintiff with the proper officer of the Court, who shall thereupon issue the summons, which shall be directed to the person from whom payment is claimed, and also to every person who, if the claim
(71) Sec. 62.
(o) Sec. 63.
(p) Manning v. Craddock. 12 G.L.R. 394 (Edwards, J.).
(q) Dallas v. Smart, 18 N.Z.L.R. 479 (Williams, J.).
(r) Sec. 66 (1) and 68 (2). See N.Z. Gazette, 11th Sept., 1919. N.B.—No rules of procedure appeal to have been made under "The Magistrate's Court Act. 1908."
(s) Sec. 88. Haddock and another v. Pedersen, 1916 N.Z.L.R. 1181 ; but see Manning v. Craddock, 12 G.L.R, 394 (Edwards, J.) at p. 396 and infra p. 61.
PROCEDURE
68
were not made, would be entitled to receive the money claimed by the plaintiff (t).
The statement of claim is the basis of the summons by which the proceedings to enforce the lien must be commenced (a).
If the statement of claim is lodged in a Court having jurisdiction and registered in the Land Transfer Office or Deeds Registration Office as the case may require, within thirty days after the completion of the work, the protection of the Statute is obtained by issuing the summons at any time within 60 days after completion of the work (b).
If a summons is not issued upon it within the statutory period, then it fails utterly because in itself it has no virtue beyond that given to it by section 74 (c).
If the relief sought is the enforcement of a lien or charge against land or chattels, or includes such relief, the claim must be verified by affidavit, filed with it {d). The affidavit must be made by the claimant or some other person having full knowledge of the matters required to be verified, and the affidavit of an agent shall state that he has such knowledge (e).
The claim must state: —
(a) The name and residence of the claimant and of the person for whom or on 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 he charged:
'<) Sec. 66 (3).
'a) Manning v. Craddock, 12 G.L.R. 394 (Edwards, J.).
(6) Manning v. Craddock, 12 G.L.R. 394 (Edwards, J.). See also Bassett v. Spurdle and McLeod, 26 N.Z.L.R. 84 (Stout, C. J.), infra p. 56.
(c) Manning v. Craddock. 12 G.L.R. 394 (Edwards, J.).
(d) Sec. 66 (4),
(e) Sec. 67 (2),
CONTRACTORS’ AND WORKMEN’S LIENS
69
{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: And, in the case of a claim of lien, must describe the property sought to be charged (/). The claim may be in one of the forms given in the Third Schedule to the Act (g). In the Supreme Court, in addition to the particulars set forth in such Forms, it shall contain a statement as to the date on which the notice of intention to claim the lien or charge was given (hj).
If the claimant for a lien has given credit for more than sixty days after the contract was completed, he has rendered the enforcement of the lien by action impossible. Section 66 of the Act makes it clear that proceedings must be taken within sixty days from the time the work was completed; but proceedings cannot be commenced if it has been agreed that credit shall be given (t). This Rule has its analogy in the Common Law Eule that a debt in respect of which a lien is claimed must be due, not accruing (k).
The summons in the Supreme Court shall be in the form prescribed by the Rules of the Bth September, 1919 (I), with such variations as the circumstances of each particular case may require. Where a lien is claimed it is suggested that a prayer
/) Compare Sec. 57, Pollock v. Miramar North Building Deposit and Mortgage Coy. Ltd., 29 N.Z.L.R. 1014 (Stout, C. J.).
[g) Sec. 67.
(hj) Rule 4 of Rules, see N.Z. Gazette 11/9/19.
(t) McGregor and Co. v. The Quartz Reef Point Sluicing Coy Ltd., 28 N.Z.L.R. 758 (Williams, J.).
(fc) Halsbury, Vol. XIX., p. 3.
I) Sec. 66 (1), N.Z. Gazette 11/9/19. See infra p. 93.
PROCEDURE
70
for an order enforcing the lien (m) and giving the claimant the costs of and incidental to registering and discharging the lien ( n ) should be included.
In the absence of and until the making of rules on the subject by any Court (o), the practice of the Court in matters relating to summary applications to the Court shall, as nearly as possible, he followed (p)-
The provisions of Rules 583 and 584 of the Code of Civil Procedure shall apply to the proceedings commenced in the Supreme Court by the summons (5).
In the Supreme Court the summons shall be served not less than seven clear days before the date appointed thereon for the hearing thereof (r). In the Magistrate’s Court the period is three clear days ( s).
The summons may be served by delivering a copy of it, together with a copy of the claim and affidavit of verification (if any) to a defendant personally or to his authorized agent (t).
The Court may proceed to hear and decide the claim or dispute in the absence of a defendant on proof of personal service on the defendant or his agent, or on proof that all reasonable efforts have been made to effect personal service on the defendant or his agent, and that copies of the summons,
(m) Sees. 83 and 84, Bassett v. Spurdle and McLeod. 26 N.Z.L.R. 84 (Stout, C. J.). McGregor and Co. v. The Quartz Reef Point Sluicing Coy. Ltd., 28 N.Z.L.R. 758 (Williams, J.).
(n) Infra p. 67. Sees. 75, 78, 79, and 85.
(o) No rules appear to have been made under "The Magistrate's Court Act, 1908."
p) Sec. 68 (2). Apparently in Gillanders Bros. v. Reeves, 23 N.Z.L.R. 417 (Stout, C. J.), particulars were ordered.
[q) Sec. 68 (2). Rule 3 of Rules, N.Z. Gazette 11/9/19.
(r) Rule 2 of Rules, N.Z. Gazette 11/9/19.
(s) Sec. 68 (3) (a).
(«) Sec. 68 (3) (6)
71
CONTRACTORS - AND WORKMEN’S LIENS
claim, and affidavit (if any) have been affixed in some conspicuous place upon the work in respect of which the claim or dispute arises (a).
The summons shall be directed to the person from whom payment is claimed, and also to every person who, if the claim were not made, would be entitled to receive the money claimed by the plaintiff (b). "It is true that the summons which is to issue upon the filing of the statement of claim is to be addressed not only to the person from whom payment is claimed, but also to every person who if the claim were not made, would be entitled to receive the money claimed by the plaintiff (section 66): but the object of addressing the summons to such persons plainly is to bind them by the proceedings, but not to recover judgment against them (see sections 69 and 70); and it is to be observed that the persons upon whom the summons is to be served are the persons who, if the claim were not made, would be entitled to receive the money claimed by the plaintiff, and the debtor would not necessarily be included among such persons. If, for example, the moneys payable to the debtor had been assigned by him, the person to be served would be the assignee, against whom judgment for the recovery of the money due could not be entered. In such a case as the present, if it were necessary to enforce the claim after the bankruptcy, the person to be served would be the Official Assignee " (<■).
In this passage when using the word "debtor" Edwards, J., referred to the original debtor. Any
(a) Sec. 68 (3) (c).
(6) Sec. 66 (3).
(c) Edwards, J., in In re Williams ex parte Official Assignee (C.A.). 1" N.Z.L.R, 712. at p. 721: 1 G.L.B. 224. at p. 229. See also In re Jones i x parte Official Assignee. 2.3 N.Z.L.R. 213, 6 G.L.R. 103 (Stout, C. J.), and Collins v. Cooper and others, 31 N.Z.L.R. 277 (Denniston, J.).
PROCEDURE
72
action against him must be taken by writ of summons in the Supreme Court or summons in the Magistrate’s Court in the ordinary way ( d).
In Walker Bros. v. Roberts and another ( e) the contractor assigned his estate for the benefit of his creditors after service of the claim of lien upon the employer and himself, but before the issue of the summons. Verbal notice of the assignment was immediately after its execution given by the trustees to the employer. Counsel for the employer raised the preliminary objection that the summons had not been directed to or served upon them and that as the rights conferred by the Statute depend upon its provisions being strictly complied with, until that was done the Court had no jurisdiction. If there were no jurisdiction, there was no power to amend. Williams, J., in an oral judgment, said he was not satisfied about the question of the service of the summons. That might be fatal to the plaintiff’s case, and he was afraid he would have to consider it further. However, the case was afterwards settled between the various parties concerned, and judgment on the point reserved was not required.
Where a person entitled to a lien on land intends to have recourse to the land, he must register his lien against the land in accordance with the provisions of section 74 (f).
"Where land is subject to "The Land Transfer Act, 1908," all that has to be done is to leave the notice in the Land Transfer Office, and as it is a notice, a caveat will not prevent the notice being notified (g).
(d) Eule 5 of Boles, N.Z. Gazette 11/9/19, Supra p. 45.
(e) 10 G.L.R. 629 (Williams, J.).
(/) See Supra p. 28.
( g) Pollock v. Miramar North Building Deposit and Mortgage Company Ltd., 29 N.Z.L.R. 1014 (Stout, C. J.).
CONTRACTORS’ AND WORKMEN’S LIENS
73
Where an employer has the right to call for a title his interest in the land can be charged although he has no registered title under the Land Transfer Act (hj).
A claim of lien shall not be liable to any stamp duty. A fee of one shilling and no more shall be payable on the registration of a claim of lien (i). A claim of lien on land must be registered not later than thirty days after the completion of the work (k).
If the claim of lien is not registered within that time the lien shall be extinguished (I).
If the statement of claim asks for any other relief save a lien against the land, the Court cannot rightly dismiss the action (m).
If the statement of claim is lodged in a Court having jurisdiction and registered in the Land Transfer Office or Deeds Eegistration Office, as the case may require, within thirty days after the completion of the work, the protection of the Statute is obtained by issuing the summons at any time within sixty days after the completion of the work (n).
Until registration the land shall not be affected by lien or claim of lien (o).
The Court may direct the vacation of the registration of a lien, on payment into Court of the amounts claimed in or under any proceedings insti-
(hj) Bollock v. Miramar North Building Deposit and Mortgage Company Ltd., 29 N.Z.L.R. 1014 (Stout, C. J.).
(t) Sec. 75.
(k) Sec. 76 (1)
(1) Sec. 76 (2). Bassett v. Spurdle and McLeod, 26 N.Z.L.R. 84
Stout, C. J.), Supra p. 29.
(m) Bassett v. Spurdle and McLeod, 26 N.Z.L.R. 84 (Stout, C. J.i.
(») Manning v. Craddock, 12 G.L.B. 394, Supra p. 51
(o) Sec. 76 (3)
PROCEDURE
74
tuted upon the lien or on such other terms as the Court deems just (p).
Where judgment is given for enforcing a lien, the Court may add to the judgment the costs of and incidental to registering the lien, as well as the costs of the proceedings {q).
Any number of persons each of whom is entitled to a lien of the same order of priority may join in one proceeding to enforce their liens ( r ).
Any action brought by any person to enforce a lien shall be taken to be brought on behalf also of every person entitled to a lien of the same order of priority who, before the date appointed for hearing the claim or any adjournment of the hearing, files in the proper office of the Court from which the summons issued a duly verified statement of his claim of lien, indorsed with a request that he be added as a party to the action (s).
Where proceedings have been commenced in more than one Court, and are still pending in respect of separate claims of lien against the same person for work done under the same contract made by him as employer, such proceedings may be remitted to the Court in which proceedings were first instituted, if the amounts claimed in such remitted proceedings are within the limits prescribed by Part 111. of the Act or otherwise within the jurisdiction of such last mentioned Court, and in any other case may be remitted to some Court having jurisdiction to deal with the whole matter in question in such proceedings ( t).
(p) Sec. 86. As to how land or chattel may be relieved of lien pending result of action, see Sec. 70 Infra p. 60.
;g) Sec. 85.
(r) See. 80 (1)
;«) Sec. 80 (2).
(t) Sec. 81 (2]
58
CONTRACTORS’ AND WORKMEN’S LIENS
In the event of the death of the plaintiff, or his refusal or neglect to proceed, any other claimant of a lien of the same order of priority who has filed his claim in the manner and within the time prescribed by Part 111. of the Act, may be allowed by the Court to prosecute the action on such terms as it deems just and reasonable (a).
It will be noticed that sections 80, 81 (2), and 82 are apparently limited in their operation to proceedings to enforce claims of liens, although in McAndrew and others v. Tudehope and Cate (b) Edwards, J., referred to charges on moneys as liens on moneys, and treated these sections as dealing with charges as well as liens. In Easson and another v. Knight (c) a claim of lien was actually involved.
Where separate actions are brought against the same person or against several persons in respect of work done under the same contract between the employer and the principal contractor, the Court may order them to be consolidated on such terms as it deems just (d).
If there are several claimants, each one has a status to appear in the proceedings for the purpose of testing in each case the validity of the charge claimed (e).
A claim for wages may include the claims of any number of workers whose primary claim is against the same person and who mav choose to join in it (/).
a) Sec. 82.
hi 24 N.Z.L.R. 851,
[0)13 G.L.R. 625 (Williams, J.).
d) Sec. 81 (1) In re Jones ex pnrtr Official Assignee. 2.1 X.Z.L.R. 213, 6 G.L.R. 103 (Stout, C. J.) ; Carrara Oiling Coy. Ltd. and others v. Taranaki Amusements Ltd. and others, 1918 G.L.R. 200 (Edwards, J.).
(e) Se Marton Club House Buildings Coy. Ltd., 10 G.L.R. 582 (Cooper, J.).
(/) Sec. 72 (1)
PROCEDURE
76
In any such case, if a lien is claimed, each claimant must verify his claim by affidavit, substantially in accordance with the form numbered (5) in the Third Schedule to the Act (g).
If there is no dispute as to the amount which an owner, employer, contractor, or sub-contractor is liable to pay, but the question or dispute is limited to determining who are the persons entitled to receive payment of it, such owner, employer, contractor, or sub-contractor may, by payment into Court of the amount claimed, relieve himself and his property of all further liability in respect of such amount, and of any costs of the proceedings (hj).
"It was contended that, having received notices of lien, the employer could have adopted the procedure provided in this section and have paid the money into Court and thus relieved himself of costs. In reply to this contention it was said that that could not have been done, as only one proceeding was taken at the time.
"I am not convinced that he could not have done so. In my opinion this provision has been inserted in the Statute to give an owner, employer, contractor, or sub-contractor the same remedy as is obtained under Eule 482 of our code of Civil Procedure —the right to interplead. The section is not confined to a case where all the claimants have issued summonses. If the work was done and the moneys were in hand, and more than one person claimed a lien, then, if a legal proceeding was taken, the owner, etc., could have paid the moneys into Court under this section, giving notice to all claimants that he had done so, and the Court would
g) Sec. 72 (2
(hj) Sec. 69. See note (p) Supra p. 23. For a case where part of claim was paid into Court see Gillanders Bros. v. Reeves, 23 N.Z.L.R. 417 (Stout, C. J.).
77
CONTRACTORS’ AND WORKMEN’S LIENS
then have had to determine who was entitled to receive it, and the owner would have been relieved of costs." (i).
"I know of no power that this Court has under the circumstances to grant solicitor-and-client costs to the owner. This case does not, in my opinion, come within the class of cases in which a person who defends an action is entitled to seek an indemnity for costs from his contractee or cestui que trust. The statute referred to gives as against the owner, etc., to sub-contractors, etc., certain rights, and it provides a mode in which the owner can get rid of costs and of defending actions. If the owner does not choose to avail himself of the provisions of the Act, he must, in my opinion, put up with any loss he sustains: the Court cannot assist him." (k)
For a case where the employer did not pay money into Court and was allowed costs see Re Marton Club House Buildings Co., Ltd. (I). In Easson and another v. Knight (m) the first mortgagee of the laud that was subject to the lien realized his security and paid the balance of the proceeds, after paying the amount owing under his mortgage, into Court, thus allowing the lien-holders and the second mortgagee to contest the matter themselves.
If the fact or extent of the liability of an owner or employer is in dispute, he may, try payment into Court of the amount claimed, or on giving security to the satisfaction of the Court, relieve the land or property on which a lien is claimed from liability to the lien (n).
(i) Stout, C. J., in In re Jones ex parte Official Assignee, 88 N.Z.L.R. 213.
(fc) Stout, C. J., in In re Jones rx parte Official Assignee, 23 N.Z.L.R. 213.
(I) 10 G.L.R. 582 (Cooper, J
(m) 13 G.L.R. 625 (Williams, J
(nj Sec. 70. See also Sec. 86, Supra p. 57.
PROCEDURE
78
A Court or a Magistrate in the case of proceedings taken in a Magistrate’s Court, may, on the application of a plaintiff ex parte, make such interim orders for the custody or preservation of any property concerned as may be necessary for the protection of the interests of any party or parties interested, pending the decision of the .Court on the claim or dispute (o).
Any person alleging that he is prejudicially affected by a claim of lien or charge, or by registration under Part 111. of the Act, may at any time apply to the Court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be just (p).
In the sections 41 and 42 of the 1892 Act corresponding to sections 88 and 89 the words “Judge or Resident Magistrate” followed the word “Court.” No mention of their omission in the present Act was made in the Commissioner’s Report. There is no alteration in the definition of “Court” except that the word “such” has been substituted for the word “a” before the word “Magistrate” in the last line of the definition.
Where the defendant took out a summons calling upon the plaintiff to show cause before a Judge in Chambers why an order should not be made under the section, cancelling a lien, Edwards, J., in the course of an oral judgment, said: —
“The defendant has instituted these proceedings by a summons in Chambers. In my opinion this is irregular. Jurisdiction is given by section 88 not to the Judge in Chambers but to the Court. The plaintiff should have been summoned to appear before the Court as in the case of an originating
o) Sec. 71 (1).
p) Sec. 88. Dutton v. Breen. 12 G.L.R. 388 (Edwards, J.).
79
CONTRACTORS’ AND WORKMEN’S LIENS
summons. It is to be regretted that this is not made more clear by the Statute. Section 68 is confusing, but it contains nothing to the contrary of this. No objection has been made on this ground, however, and I can order the summons to be amended or treated as amended. There must he an order of the Court cancelling the registration of the lien, but limited to this only. I refuse the defendant his costs. He does not even pretend to have any merits, and his application is irregular.” ( q )
In a later case where the plaintiffs having filed a statement of claim of lien under the Act in the Supreme Court and registered it in the Deeds Registry Office began an action by Writ of Summons in the ordinary jurisdiction of the Court, annexing to the Writ as their statement of claim in the action a duplicate of the claim of lien the defendant took out a summons in Chambers to set aside the Writ and the statement of claim. The Court set both Writ and Claim aside without making any comment upon the procedure adopted by the defendant (r).
If any person vexatiously or without any reasonable grounds gives notice of claim of lien or charge, or registers any lien, such person shall be liable to pay to any person prejudicially affected thereby such compensation as the Court, on a summary application, fixes and determines (s).
The proper form of judgment appears to be an order to the defendants to pay to the several plaintiffs the amounts due to them respectively ( t ).
a) Mannine v. Craddoek, 12 G.L.R. 394. at p. 396.
I</ i .wanning \. \jiiiiiuuin, i- u.ij.n, .>.'-t, ;i i |i. .)?w. (r) Haddock and another v. Pederaen, ioifi N.Z.L.R. 1181 (Edwards, J.).
(*) Dutton v. Bream, 12 G.L.R. 388 (Edwards. J.). Supra p. 61
t) I,i re Williams, 17 N.Z.L.R. 712 (C.A.) at p. 724; Carrara Ceiling Cov. Ltd. and others v. Taranaki Amusements Ltd. and others, 1918 G.L.R. 200 (Edwards, J.).
PROCEDURE
80
All payments made by an employer, contractor, or sub-contractor to any person under and in compliance with an order of a Court having jurisdiction under Part 111. of the Act shall be a sufficient discharge to the person making the payment of his liability to pay the money to the person who, but for the order, would have been entitled to receive the money from him (a).
Where A, the contractor, issued a summons against B, the employer, for the cost of building to date and to enforce a lien, C, a workman, having already obtained judgment against A and registered a lien against B’s land, B contended that the amount of C’s claim should be deducted from the amount of A’s judgment against B. It was held not so, because C could still resort to his judgment against A, and under the circumstances of the case might probably do so. A could not compel C to enforce his lien against B’s land, nor could A claim the benefit of C’s lien. If A were compelled to pay C’s debt, he would lose the benefit of the Statute as far as that amount were concerned. On the other hand B would be under no difficulty. He could pay the amount of C’s lien, giving notice to A and to the Sheriff, and any sum so paid would necessarily 1 ipso facto reduce by its amount the sum for which A would be entitled to enforce his lien (b).
Tn Button v. Breen and another (c) it was held that certain orders made by the Magistrate's Court under the Act were not judgments in rem.
Tf judgment is recovered against an employer or owner on a claim of lien, the Court may direct a sale of the land or chattel to take place at any time
a) Sec. 73.
(6) Waters v. Gunn, 29 N.Z.L.E. 468 (Edwards, J.).
(c) 28 N.Z.L.K. 717 (Sim, J.).
81
CONTRACTORS’ AND WORKMEN’S LIENS
after one month from the recovery of the judgment, and may direct such public notice not being less than fourteen days, of such intended sale as the Court deems necessary ( d ).
It would almost appear that in In re B. E. Williams (e) a direction for the sale of land under this section was assumed to be a "writ of sale" within the meaning of sub-section (k) of section 26 of "The Bankruptcy Act, 1908."
Where the lien is on a chattel which is affixed to land, the Court may direct the sale of the chattel, and may authorize its removal from the land to which it is affixed (/).
Where a sale of any estate or interest in land is directed under Part 111. of the Act under a decision of a District Court or Magistrate's Court, the sale shall be made by the Sheriff in the Supreme Court district where the land is situated on delivery to him of a copy of such decision, duly certified by the Clerk of the District Court or the Magistrate's Court, as the case may be, which shall be a sufficient warrant and authority to such Sheriff to effect and complete the sale in the same manner and with the same powers and authorities as he is required or authorized to effect a sale of land under a writ of sale pursuant to a judgment of the Supreme Court, including the execution of any instrument necessary to convey or transfer to a purchaser the estate or interest sold (g).
(d) Sec. 83. In the corresponding section (36) of the 1892 Act the words "Judge or Resident Magistrate" followed the word "Court" where it first appears in the section. No mention of their omission is made in the Commissioners' Report.
(e) 1916 N.Z.L.R. 650 (Chapman, J.)
(/) Sec. 84.
(g) Sec. 87.
PROCEDURE
82
A copy of the decision of the Magistrate’s Court directing a sale of land, delivered to the Sheriff of the Supreme Court under section 87 is not a “writ of sale” within the meaning of sub-section (k) of section 26 of “The Bankruptcy Act, 1908.” ( h j).
In addition to any punishment or penalty which a Court may be authorized to impose for the breach or contempt of its decrees or orders, any person, who after notice of any such order, disobeys it or acts contrary to it, is liable, in the discretion of the Court, to a fine not exceeding fifty pounds; and such fine may be enforced by the Court, on application by the plaintiff or any other person interested in or affected by the claim in dispute, in the like manner and by the like process as a judgment of such Court could be enforced under the ordinary procedure applicable (i).
An appeal may be made from the decision of a Magistrate's Court to a District Court or the Supreme Court, and from a District Court to the Supreme Court in the same manner and subject to the same conditions and restrictions respectively as in the case of other appeals in civil proceedings from a Magistrate's Court and from a District Court respectively (fc).
A nonsuit in the Magistrate's Court is a "decision." (I).
A special case may be stated by a Magistrate or Justice of tbe Peace when sitting as a Magistrate's Court, for the opinion of the Supreme Court on a question of law, in the same manner as a special
(hj) In re Davies, 26 N.Z.L.B. 254, 9 G.L.B. 289 (Stout, C. J.).
(t) Sec. 71. The alterations made by the Commissioners in the wording of this section, without mention in the Beport, will be noted.
(fc) Sec. 64 (1).
(1) Haynes and others v. McKillop, 24 N.Z.L.B. 833, 7 G.L.R. 478 (Stout, C. J., and Edwards, J.); but see Mansfield v. Mayor, etc., of Blenheim, 1923 G.L.B. 193 (C.A.).
F
83
CONTRACTORS’ AND WORKMEN’S LIENS
case may be stated by Justices under “The Justices of the Peace Act, 1908.” (m)
A lien may be discharged by a receipt signed by the claimant, or his agent duly authorized in writing, acknowledging payment of the amount claimed, and verified by affidavit and filed ( n ).
The receipt shall be numbered and entered or recorded by the District Land Registrar or Registrar of Deeds in the same manner as other instruments. The fee shall be the same as for registering a claim of lien (o).
The registration of discharges of liens shall be at the cost of the person making the claim of lien, unless the Court otherwise orders ( p).
Subject to the provisions of Part 111. of the Act, costs of any party or parties in any proceedings may be allowed in the discretion of the Court, and may be ordered to be paid by any other party or parties, or out of any fund or property under the control of the Court (q).
In all proceedings under Part 111. of the Act the Court shall have power to award costs to any of the parties to such proceedings (r). A claim of lien under the Act followed the form given in the schedule, which makes no mention of costs, nor were costs asked for in the summons thereon. On the plaintiff’s applying for costs, Stout, C. J., held that proceedings to establish the lien were in reality the beginning of an action; that the procedure being
(m) Sec. 64 (2).
(n) Sec. 78 (1)
(o) Sec. 78 (2). See Sec. 75.
(p) Sec. 79. See Sec. 85.
(g) Sec. 65.
(r) Sec. 90. The words “Judge or Resident Magistrate” following the word “Court” in the corresponding Section 43 of the 1892 Act, were omitted by the Commissioners without mentioning the fact in their Report.
PROCEDURE
84
under a special Statute which gave the Court power to award costs, the Court could do so without costs being claimed in the claim or in the summons; and that the rule that in interlocutory proceedings by summons in an action, no costs would be granted unless asked for did not apply (s). The form of summons in the Supreme Court provided by the Eules of September, 1919, now includes a prayer for costs. In cases where a lien on land is claimed, it will be as well to also include in the prayer, the costs of and incidental to registering and discharging the lien (t).
"Section 90 of the Act gives power to the Court to award costs without the smallest indication of any principle upon which that power is to be exercised.
"I can discern no other principle than to treat the proceedings as though they were actions in the ordinary form" (a).
The affidavits required to be made under Part 111. of the Act are added to the eleemosynary list (b).
(*) Haddock and another v. Pedersen, 1916 N.Z.L.B. 1181.
(*) Supra pp. 52, 57, and 66. Sees. 75, 78, 7 and 85.
(a) Edwards, J., in Carrara Ceiling Coy. Ltd. and others v. Taranaki Amusements Ltd. and others, 1918 G.L.E. 200. See also Gillanders Bros. v. Reeves, 23 N.Z.L.E. 417 (Stout, C. J.).
(b) Sec. 92.
98
Wages Protection and Contractors’ Liens.
1908, No. 204
An Act to consolidate certain Enactments of the General Assembly relating to Payment of Wages due to Workers and Money due to Workers and Contractors.
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows: —
short Title.
1. (1.) The Short Title of this Act is "The Wages Protection and Contractors' Liens Act, 1908."
Enactments
(2.) This Act is a consolidation of the enactments mentioned in the First Schedule hereto, and with respect to those enactments the following provisions shall apply:—
Saving*.
(<*) All liens, charges, notices, claims, Orders in Council, rules, orders, registers, registrations, records, instruments, and generally all acts of authority which originated under any of the said enactments, and are subsisting or in force on the coming into operation of this Act, shall enure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act, and accordingly shall, where necessary, be deemed to have so originated.
Interpretation 1892, No. 25, sec. 2 1895. No. 15, sec. 2
CONTRACTORS' LIENS
86
(b) All matters and proceedings commenced under any such enactment, and pending or in progress on the coming into operation of this Act, may be continued, completed, and enforced under this Act.
(3) This Act is divided into Parts, as follows: —
Part I.—Protection of Wages. (Sections 2to 27).
Part ll.—Truck. (Sections 28 to 47)
Part lll.—Contractors' and Workers' Liens. (Sections 48 to 95).
PART 111
Contractors' and Workers' Liens.
48. In this Part of this Act, if not inconsistent with the context, —
"Contract price" includes the money payable for the performance of any work under any contract, express or implied, and whether the price was fixed by express agreement or not:
" Contractor," as regards an employer, means a person who contracts directly with the employer for the performance of work for him; as regards a subcontractor, it means a person with whom the subcontractor contracts to perform work; and "subcontractor" means a person who contracts with a contractor, or with another subcontractor, for the performance of work for such contractor or subcontractor:
"Contractor" also includes any person, being the owner or lessee of any threshing-
87
WAGES PROTECTION AND
machine, who contracts with any other person to thresh any grain:
"Court" means the Court in which any proceeding may be taken under this Part of this Act; and includes the Judge of any such Court, and a Magistrate in any matter in which a Magistrate has jurisdiction under this Part of this Act:
“Employer” means any person by whom a contract is made with another person for the performance of work, or at whose request, or on whose credit, or on whose behalf, with his privity or consent, work is done; and includes also all persons claiming under him whose rights are acquired after the work in question is commenced:
Lien” or “charge” means a lien or charge under this Part of this Act:
“Owner” means the person to whom the land or chattel upon or in respect of which the work is to be done belongs, and, in the case of land, includes a person having a limited estate or interest in the land:
“Work” means any work or labour, whether skilled or unskilled, executed or done, or commenced to be executed or done, by any person of any occupation upon or in connection with
(a) The construction, decoration, alteration, or repair of any building or other structure upon land; or
(6) The development or working of any mine, quarry, sandpit, drain, embankment, or other excavation in or upon any land;
or
Lten upon land and chattels for labour. 1892, No. 25, Bee. 3
CONTRACTORS’ LIENS
88
(c) The placing, fixing, or erection of any materials, or of any plant or machinery, used or intended to be used for any of the purposes aforesaid; or
( d ) The alteration or improvement of any chattel: or
(e) The threshing of grain (including in the term “grain” all cereals, pulse, and seeds of every kind):
and includes the supply of material used or brought on the premises to be used in connection with the work:
“Worker” means a person employed in doing work, whether he is employed by the owner of the property upon which the work is to be done, or by a contractor or subcontractor, and whether his remuneration is to be according to time or by piecework, or at a fixed price or otherwise.
Declaration of Bights of Lien and Charge.
49. A contractor, subcontractor, or worker who does or procures to be done any work upon or in connection with any land, or any building or other structure or permanent improvement upon land, or does or procures to be done any work upon or in connection with any chattel, is entitled to a lien upon the whole interest of the employer in that land or chattel for the contract price of the work, but subject to the conditions and limitations following, that is to say:—
(a) The lien of a contractor does not exceed the amount for the time being due to him under the contract between him and the employer.
89
WAGES PROTECTION AND
(6) The lien of a subcontractor does not exceed the amount for the time being due to him under the contract between him and the contractor or subcontractor under whom he works.
(e) The lien of a worker other than a contractor or subcontractor, does not exceed the amount for the time being payable to him for his work, whether he was employed by the employer or by a contractor or subcontractor.
(d) The total liability of the employer in respect of all such liens together does not, except in the case of fraud, exceed the contract price payable under the contract or contracts between him and the contractor or workers with whom he directly contracts.
(e) The lien of a worker in respect of one contract does not exceed thirty days’ earnings.
Owner standing by Ibid, sec. 4
50. The estate or interest of the owner who is not himself the employer in the land or chattel on or in respect of which the work is to be done shall be subject to lien or liability as if he were himself the employer, to the extent to which such owner has consented in writing.
Charge in favour of Bubcontractors. Ibid, sec. 5
51. A subcontractor is entitled to a charge for the money due to him under the subcontract on any money payable to his contractor, or to any superior contractor, by the employer or by any superior contractor, in respect of the work done or to be done under the subcontract.
Charge in favour of workers. Ibid, sec. 5
52. A worker is entitled to a charge for the money due to him for his work on any money payable to the contractor or subcontractor by whom he
CONTRACTORS ’ LIENS
90
is employed, or payable to any superior contractor in respect of the work done or to be done under the contract of the subcontractor by whom he is employed.
Provision in case of mortgaged land. 1892, No. 28, sec. 6
53. (1.) Where land on which a lien attaches is mortgaged under a mortgage duly registered before the registration of the lien against such land under the contract in respect of which the lien arises, the mortgage shall, unless the mortgagee is a party to the contract, have priority over the lien; but if the mortgagee is a party to the contract, the lien shall have priority.
(2.) All moneys which a mortgagee pays in respect of a lien shall be added to and form part of the principal money mentioned in his mortgage, and shall bear interest accordingly.
54. The several liens and charges created by this Part of this Act shall as between themselves have priority in the order following, that is to say:—
Priority of liens. Ibid, see. 7
(a) The liens and charges of workers for wages:
(6) The liens and charges of subcontractors
(c) The liens of contractors: so that the lien or charge of a subcontractor shall have priority over the lien or charge of the contractor with whom his contract is made.
Lien or Charge, how established.
55. (1.) A person who intends to claim a lien_ on any land or chattel shall, before the completion of the work in respect of which it is claimed, or within thirty days after the completion, give notice to the owner, if liable, specifying the amount and
Notice of ~claim of lien. . Ibid, sec. 8
Noti« I claim i>i rhai - Ibid. sec. 9 I
74
WAGES PROTECTION 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.
(2.) He shall also give notice of having made such claim to the person who, hut 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.
(3.) 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 whereof the lien is claimed has not arrived.
(4.) If no such notice is given, the lien shall not attach.
56. (1.) A subcontractor or worker who intends to claim a charge on money payable by the employer or by a superior contractor to his contractor or to a superior contractor shall, before the completion of the work in respect of which it is claimed, or within thirty days after the completion, give notice to the employer or superior contractor as the case may be, specifying the amount and particulars of his claim, and stating that he requires the employer or superior contractor to take the necessary steps to see that it is paid or secured to the claimant.
(2.) 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.
(3.) A notice of claim of charge may be given although the work is not’ completed, or the time for payment of the money in respect whereof the charge is claimed has not arrived.
75
CONTRACTORS’ LIENS
(4.) If no such notice is given, the charge shall not attach.
57. A notice of claim of lien or charge may be in one of the forms in the Third Schedule hereto or to the like effect; but its validity shall not be affected by any inaccuracy or want of form, if the property or money sought to be charged, and the amount of the claim can be ascertained with reasonable certainty from the notice.
Form of notice of lit':i or charge. Ibid. sec. 10
Duty and Obligations of Employer or Superior Contractor.
58. (1.) On receipt of notice of a claim of lien or charge it shall be the duty of the person by whom it is received to retain in bis hands until the time prescribed by this Part of this Act for taking proceedings for enforcing the lien or charge has expired, a sufficient part of the money payable by him under his contract to satisfy the claim of the claimant.
Consequences of claim of lien or charge 1892. No. L's. sec. 11
(2.) In default of such retention he shall, subject to the provisions herein contained, be personally liable to pay to the claimant the amount of his claim, not exceeding the amount he should have retained, in the same maimer and to the same extent as if the claimant had been employed by him personally.
59. (1.) All payments up to three-fourths of the contract price to be paid for the work, as defined by section forty-eight hereof, made in good faith by the employer or owner to the contractor, or by the contractor to the subcontractor, or by one subcontractor to another subcontractor, before notice in writing by the person claiming the lien or charge has been given to such employer or owner, contractor, or subcontractor, as the case may be, of the claim of such person, shall operate as a dis-
Payments up to threefourths before? notice given to operate as discharge. Ibid. sec. 12
WAGES PROTECTION AND
93
charge pro tanto of the lien or charge; but this section shall not apply to any payment made for the purpose of defeating or impairing a claim to a lien or charge existing or arising under this Part of this Act.
One-fourth to be retained for thirty-one days.
(2.) An employer or contractor shall retain in his hands one-fourth part of the money payable under the contract to the contractor or subcontractor until the expiration of thirty-one days after the completion of the work.
Contractor to give notice to employer of ( all subcontracts, g Ibid, sec. 13 (
60. (1.) Every contractor who sublets any part of the work to be done by him under any contract shall immediately upon entering into any subcontract give written notice to the employer, stating the name of the subcontractor, the work to be done by him, the amount of the subcontract, and the mode of payment.
Fine for noncompliance. ]
(2.) Every contractor who fails to comply with this provision is liable to a fine not exceeding fifty pounds, to be recovered in a summary way under "The Justices of the Peace Act, 1908."
(3.) Nothing herein shall be deemed to restrict any power or privilege conferred by this Part of this Act on a subcontractor.
Enforcement of Lien or Charge.
If notice not followed by payment, proceedings may be taken to enforce lien. Ibid, sec. 14
61. "Where notice has been given of an intention to claim a lien or charge, and the person to whom it is given does not pay, or make satisfactory arrangements for paying, to the claimant the amount claimed, the claimant may recover the amount of the lien or charge from the owner, if liable, of the land or chattel, or the person by whom the money subject to the charge is payable.
Summary procedure. Ibid, sec. 15
62. Claims under this Part of this Act may be enforced, and questions and disputes between
CONTRACTORS’ LIENS
94
persons claiming a lien or charge and any other person liable, or alleged to be liable, to pay any amount claimed, or otherwise interested in any property or money which may be effected by a lien or charge, or claim of lien or charge, and also between persons or classes of persons claiming a lien or charge, may be settled on application in a summary manner to any Court having jurisdiction in the matter as declared by this Part of this Act.
63. (1.) Claims of lien or charge by workers for wages, and all other claims of lien or charge, and all other matters arising under this Part of this Act, if the amount in question does not exceed the jurisdiction of the Magistrate’s Court in which the claim is brought, may be heard and determined and enforced in such Court.
Jurisdiction of Magistrate's Court. 1892, No. 25, sec. 16
(2.) All such claims of lien or charge or other matters, if the amount or value in question does not exceed the sum of two hundred pounds, may be heard and determined and enforced by a District Court.
District Court
(3.) The Supreme Court shall have jurisdiction in all matters arising under this Part of this Act.
Supreme Court.
64. (1.) An appeal may be made from the decision of a Magistrate’s Court to a District Court or the Supreme Court, and from a District Court to the Supreme Court, in the same manner and subject to the same conditions and restrictions respectively as in the ease of other appeals in civil proceedings from a Magistrate’s Court and from a District Court respectively.
Appeal. Ibid, sec. 17
(2.) A special case may be stated by a Magistrate or Justices of the Peace when sitting as a Magistrate’s Court, for the opinion of the Supreme Court on a question of law, in the same manner as a special case may be stated by Justices under “The Justices of the Peace Act, 1908.’’
: Ibid, tec. 13
Form of procedun*. Ibid, so?. 1^
Form of claim. Ibui. SRC. 20
78
WAGES PROTECTION AND
65. Subject to the provisions of this Part of this Act, costs of any party or parties in any proceeding may be allowed in the discretion of the Court, and may be ordered to be paid by any other party or parties, or out of any fund or property under the control of the Court.
66. (1.) 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.
(2.) Such proceedings must be commenced within sixty 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 he extinguished.
(3.) A statement of the claim shall be filed by the plaintiff with the proper officer of the Court, who shall thereupon issue the summons, which shall be directed to the person from whom payment is claimed, and also to every person who, if the claim were not made, would be entitled to receive the money claimed by the plaintiff.
(4.) If the relief sought is the enforcement of a lien or charge against land or chattels, or includes such relief, the claim must be verified by affidavit, filed with it.
(5.) A copy of the claim, and of the affidavit verifying it (if any), shall be served with the summons.
67. (1.) The claim must state
[a) The name and residence of the claimant, and of the person for whom or on 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;
Service of summons. 1892, No. 25, Bee. 21
79
CONTRACTORS’ LIENS
(6) 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:
and, in the case of a claim of lien, must describe the property sought to be charged.
(2.) The claim may be in one of the forms given in the Third Schedule hereto, and when it is required to be verified shall be verified by the affidavit of the claimant, or some other person having full knowledge of the matters required to be verified, and the affidavit of an agent shall state that he has such knowledge.
68. (1.) The summons shall be served in such manner and be returnable on such date as the rules or practice of the Court prescribes.
(2.) In the absence of and until the making of rules on the subject by any Court, the practice of the Court in matters relating to summary applications to the Court shall, as nearly as possible, be followed.
(3.) Unless and until otherwise provided by the rules of Court, —
(a) Service of a summons shall be sufficient if it is duly made three clear days before the date appointed for the hearing of the summons:
(6) Service of a summons may be made by delivering a copy of it, together with a copy of the claim and affidavit of verification (if any), to a defendant personally or to his authorised agent:
WAGES PROTECTION AND
97
(c) The Court may proceed to hear and decide the claim or dispute in the absence of a defendant, on proof of personal service on the defendant or his agent, or on proof that all reasonable efforts have been made to effect personal service on the defendant or his agent, and that copies of the summons, claim, and affidavit (if any) have been affixed in some conspicuous place upon the work in respect of which claim or dispute arises.
Payment into Court by person liable. Ibid, Bee 22
69. If there is no dispute as to the amount which an owner, employer, contractor, or subcontractor is liable to pay, but the question or dispute is limited to determining who are the persons entitled to receive payment of it, such owner, employer, contractor, or subcontractor may, by payment into Court of the amount claimed, relieve himself and his property of all further liability in respect of such amount, and of any costs of the proceedings.
70. If the fact or extent of the liability of an owner or employer is in dispute, he may, by payment into Court of the amount claimed, or on giving security to the satisfaction of the Court, relieve the land or property on which a lien is claimed from liability to the lien.
In disputed cases owner may by payment into Court release property from lien. Ibid, sec. 23
Protection •f property. IbicC sec. 24
71. (1.) A Court, or a Magistrate in the ease of proceedings taken in a Magistrate's Court, may, on the application of a plaintiff ex parte, make such interim orders for the custody or preservation of any property concerned as may be necessary for the protection of the interests of any party or parties interested, pending the decision of the Court on the claim or dispute.
(2.) In addition to any punishment or penalty which a Court may be authorised to impose for the
CONTRACTORS’ LIENS
98
breach or contempt of its decrees or orders, any person who, after notice of any such order, disobeys it or acts contrary to it, is liable, in the discretion of the Court, to a fine not exceeding fifty pounds; and such fine may be enforced by the Court, on application by the plaintiff or any other person interested in or affected by the claim in dispute, in the like manner and by the like process as a judgment of such Court could be enforced under the ordinary procedure applicable.
72. (1.) A claim for wages may include the claims of any number of workers whose primary claim is against the same person, and who may choose to join in it.
Several claims for wages may be joined. 1892, No. 25* Bee. 26
(2.) In any such case, if a lien is claimed, each claimant must verify his claim by affidavit, substantially in accordance with the form numbered (5) in the Third Schedule hereto.
73. All payments made by an employer, contractor, or subcontractor to any person under and in compliance with an order of a Court having jurisdiction under this Part of this Act shall be a sufficient discharge to the person making the payment of his liability to pay the money to the person who, but for the order, would have been entitled to receive the money from him.
Effect of pay ment under order of Court. Ibid, sec. 26
Remedies against Land.
74. Where a person entitled to a lien on land intends to have recourse to the land, he must register his lien against the land in the following manner:
Registration of lien. Ibid, sec. 27
(a) (i) Where the land is subject to "The Land Transfer Act, 1908," a copy of the statement of claim of lien and affidavit, certified by the proper officer of the Court in which the original has
Land under Land Transfer Act.
a
Notice.
Land not under Land Transfer Act.
Registration fee. Ibid, sec. 28
When claim to be registered. Ibid, sec. 29
Denth of lien holder. 1892. No. 25, see. 30
82
WAGES PROTECTION AND
been filed, shall be lodged in the office of the District Land Registrar of the district in which the land is situated, who shall thereupon register the claim of lien on the title to the land in question in the manner in which caveats are required to be registered.
(ii) Notice of the claim of lien shall be given by the Registrar, by letter through the post-office, to the registered proprietor, and to every mortgagee or incumbrance of the land.
(iii) The registration shall be deemed to have been made at the time of the day on which the claim of lien is lodged in the office.
(b) Where the title to the land is not subject to "The Land Transfer Act, 1908," a claim of lien may be registered in the same manner as any deed or instrument affecting such land may by law be registered.
75. A claim of lien on land shall not be liable to any stamp duty. A fee of one shilling and no more shall be payable on the registration of a claim of lien.
76. (1.) A claim of lien on land must be registered not later than thirty days after the completion of the work.
(2.) If the claim of lien is not registered within that time the lien shall be extinguished.
(3.) Until registration the land shall not be affected by lien or claim of lien.
77. In the event of the death of a person entitled to a lien, his right of lien shall pass to his personal representatives.
CONTRACTORS’ LIENS
100
78. (1.) A lien may be discharged by a receipt signed by the claimant, or his agent duly authorised in writing, acknowledging payment of the amount claimed, and verified by affidavit and filed.
Dischnrge of Hers. Ibid. sec. 31
(2.) The receipt shall be numbered and entered or recorded by the District Land Registrar or Registrar of Deeds in the same manner as other instruments. The fee shall be the same as for registering a claim of lien.
79. The registration of discharges of liens shall be at the cost of the person making the claim of lien, unless the Court otherwise orders.
Cost of registering discharge. Ibid, sec.
80. (1.) Any number of persons each of whom is entitled to a lien of the same order of priority may join in one proceeding to enforce their liens.
Action by lien-holders for joint benefit. Tbid, sec. 33
(2.) Any action brought by any person to enforce a lien shall be taken to be brought on behalf also of every person entitled to a lien of the same order of priority who, before the date appointed for hearing the claim or any adjournment of the hearing, files in the proper office of the Court from which the summons issued a duly verified statement of his claim of lien, indorsed with a request that he be added as a party to the action.
81. (1.) “Where separate actions are brought against the same person or against several persons in respect of work done under the same contract between the employer and the principal contractor, the Court may order them to be consolidated, on such terms as it deems just.
Consolidation of proceedings. Ibid, sec. 3 4
(2.) Where proceedings have been commenced in more than one Court, and are still pending in respect of separate claims of lien against the same person for work done under the same contract made by him as employer, such proceedings may be remitted to the Court in which proceedings were first instituted,
WAGES PROTECTION AND
101
if the amounts claimed in such remitted proceedings are within the limits prescribed by this Part of this Act, or otherwise within the jurisdiction of such lastmentioned Court, and in any other case may be remitted to some Court having jurisdiction to deal with the whole matter in question in such proceedings.
82. In the event of the death of the plaintiff, or his refusal or neglect to proceed, any other claimant of a lien of the same order of priority, who has filed his claim in the manner and within the time prescribed by this Part of this Act, may be allowed by the Court to prosecute the action on such terms as it deems just and reasonable.
Prosecution of claim when plaintiff dies. Ibid, sec. 35
83. If judgment is recovered against an employer or owner on a claim of lien, the Court may direct a sale of the land or chattel to take place at any time after one month from the recovery of the judgment, and may direct such public notice, not being less than fourteen days, of such intended sale as the Court deems necessary.
Time when sale may be made. Ibid, sec. 36
84. Where the lien is on a chattel which is affixed to land, the Court may direct the sale of the chattel, and may authorise its removal from the land to which it is affixed.
Court may direct sale and removal of chattel. Ibid, sec. 37
85. Where judgment is given for enforcing a lien, the Court may add to the judgment the costs of and incidental to registering the lien, as well as the costs of the proceedings.
CoBtS. Ibid, sec. 38
86. The Court may direct the vacation of the registration of a lien, on payment into Court of the amounts claimed in or under any proceedings instituted upon the lien, or on such other terms as the Court deems just.
Registry may be annulled. 1892, No. 25, aec. 39
Execution upon a Bale ordered by District Court or Magistrate's Court. Ibid. sec. 40
87. Where a sale of any estate or interest in land is directed under this Part of this Act under a decision of a District Court or Magistrate's Court,
CONTRACTORS’ LIENS
102
the sale shall be made by the Sheriff in the Supreme Court district where the land is situated on delivery to him of a copy of such decision, duly certified by the Clerk of the District Court or the Magistrate’s Court, as the case may be, which shall be a sufficient warrant and authority to such Sheriff to effect and complete the sale in the same manner and with the same powers and authorities as he is required or authorised to effect a sale of land under a writ of sale pursuant to a judgment of the Supreme Court, including the execution of any instrument necessary to convey or transfer to a purchaser the estate or interest sold.
88. Any person alleging that he is prejudicially affected by a claim of lien or charge, or by registration under this Part of this Act, may at any time apply to the Court to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be just.
Person prejudicially affected may apply to Court. 'lbid, sec. 41
89. If any person vexatiously or without any reasonable grounds gives notice of claim of lien or charge, or registers any lien, such person shall be liable to pay to any person prejudicially affected thereby such compensation as the Court, on a summary application, fixes and determines.
Vexations notice of claim. Ibid, sec. 42
90. In all proceedings under this Part of this Act the Court shall have power to award costs to any of the parties to such proceedings.
Costs. Ibid, sec. 43
General Provisions.
91. (1.) Where a worker has done work upon a chattel in his possession by way of alteration or improvement, or for the purpose of imparting an additional value to it, so as thereby to be entitled to a lien on such chattel for the amount or value of the work done, then, in case the amount to which he is entitled remains unpaid for two months after
Special provision for enforcing lien on perßonal rhattels. Ibid, sec. 44
Affidavits to be sworn without fee. 1892, No. 25. see. 45
Saving of other ' remedies. Tbitl. B6C. 40
103
WAGES PROTECTION AND
it ought to have been paid, he may, in addition to all other remedies provided by law, cause the chattel in respect of which the lien exists to be sold by auction.
(2.) One week’s notice of the sale shall be given by advertisement in a newspaper published in the locality in which the work was done, or, if there is no newspaper published in such locality, then in a newspaper circulating in the neighbourhood, stating the name of the person indebted, the amount of the debt, a description of the chattel to be sold, the time and place of sale, and the name of the auctioneer, and leaving a like notice in writing at the last known place of residence (if any) of the owner, if he is a resident of the locality.
(3.) The proceeds of the sale shall be applied in payment of the amount due under the lien and the costs of advertising and sale, and any surplus shall be paid over to the Clerk of the Magistrate’s Court at or nearest to the place of sale, to be held by him for the benefit of the person entitled to it.
92. Any Affidavit required to be made under the provisions of this Part of this Act may be sworn before a Justice, or before any other person authorised to take affidavits in the Supreme Court, and no fee shall be payable or taken for administering the oath.
93. Except to the extent otherwise mentioned in this Part of this Act, nothing in this Part shall be construed to impair or affect any right or liability accruing or accrued under the provisions of Part I of this Act, or the right of any person to whom a debt is due for work done or materials furnished, to maintain a personal action to recover the debt against any person liable for it; and the judgment (if any) obtained by the plaintiff in any such action shall not impair or otherwise affect any lien or other right to which he is entitled under this Part of this Act.
Certain la:ioU not affected. Ibid, sec. 47
Lienee responsible to contractor for cost of threshing grain, if lien enforced. 1895, No. 15, sec. 3
CONTRACTORS’ LIENS
104
94. ' Nothing in this Part of this Act shall be •deemed to create or give to any person any right or remedy against any land vested in the Crown, or in any body corporate, Board, or local authority procuring or undertaking the performance of any work for any public purpose.
Special Provision relating to Owners of Threshingmachines.
95. Where any crop which is subject to a valid security, duly registered under “The Chattels Transfer Act, 1908,” has been threshed by a contractor, and the amount of the cost of the work of threshing, or any part thereof, remains unpaid at the time of the realisation of such security by the grantee, then, if the contractor gives notice in writing to the grantee of his claim within seven days after such realisation, the amount of the reasonable cost of the threshing of the crop so realised by the grantee shall be a charge on the proceeds of the realisation of such crop.
Section 57. 1892 No. J Schedule.
WAGES PROTECTION AND
105
SCHEDULES.
FIRST SCHEDULE.
Enactments Consolidated.
1891, No. 11.—" The Truck Act, 1891."
1892, No. 25.—" The Contractors' and Workmen's Lien Act, 1892."
1893, No. 52.—" The Workmen's Wages Act, 1893."
1895, No. 15.—" The Threshing-machine Owners' Lien Act, 1895."
1895, No. 22.^'' The Wages Attachment Act, 1895.''
1899, No. 12.—" The Wages Protection Act, 1899.'
THIRD SCHEDULE
(1.) Notice op Intention to Claim Lien. To Mr. CD., of
'• m I, A.B. [Name of claimant], of [Here state residence ' and occupation of claimant], hereby give you notice that I claim under Part 111 of " The Wages Protection and Contractors' Liens Act, 1908," a lien on your land [or steam-engine, or as the case may he] at [Here describe the land or chattel in such a manner that it can be identified], in respect of the following work done upon or in connection with the land [or as the case may be], that is to say: [Here give a short description of the nature of (he work
CONTRACTORS’ LIENS
106
done, and for which the lien is claimed], which work was [or is to be] done by me while in the employment of [or under a subcontract with] [Here state the name and residence and occupation of the person for whotn or on whose credit the work is done], on or before the day of ,19 .
The amount which I claim as due [or to become due] is £ , and I require you to take the necessary steps to see that this amount is paid or secured to me.
Dated at , this day of , 19 [Signature of Claimant.]
(2.) Notice op Intention to Claim Charge.
To Mr. C.D. I, A.B. [Nam# of Claimant], of [Here state residence and occupation of claimant], hereby give you notice that I claim under Part III of “ The Wages Protection and Contractors’ Liens Act, 1908,” a charge on the money which is now or will he payable by you to [Here state the name and residence of the contractor or subcontractor to whom the money sought to be charged is payable] in respect of the following work done by me in respect of your contract with the said E.P., that is to say: [Here give a short description of the nature of the work done and for which the charge is claimed], which work was [or is to be] done by me while in the employment of the said E.F. [or of G.H., a subcontractor under the said E.P], on or before the day of , 19 .
The amount which I claim as due [or to become due] is £ , and I require you to take the necessary steps to see that this amount is paid or secured to me.
Dated at , this day of , 19
[Signature of Claimant.]
Section 67.
107
WAGES PROTECTION AND
(3.) Statement of Claim to be Filed on Commencing Proceedings.
A.B. of [State residence and occupation of claimant], claims under Part 111 of “ The Wages Protection and Contractors’ Liens Act, 1908,” to recover from [Here state the name, residence, and occupation of the persons against whom the claim is made], the sum of £ , for days’ wages as a bricklayer [or as the case may he (State concisely the nature of the work or service in respect of which the claim is made)].
The work was done for [State the name, residence, and occupation of the person for whom or on whose credit the work was done], between the day of and the day of last.
The credit agreed to by the claimant expired on If a lien is claimed, add —
The claimant claims a lien for the above sum on the land of the said CD. at [Here give a description of the property to be charged sufficient for the purpose of registration] [or on the steam-engine of the said CD. now at (Here give such a description of the chattel to be charged as will identify it)]. Dated at , this day of , 19 . [Signature of Claimant.]
(4.) Statement op Claim for "Wages by Several Claimants.
The following persons claim under Part 111 of " The "Wages Protection and Contractors' Liens Act, 1908," to recover from [Here state the name, residence, and occupation of the person against whom the claims are made] the following sums for wages [Here state the names, residences, and occupations of the several
CONTKACTORS' LIENS
91
persons claiming the lien, and particulars of their claims] :
A.8., of [Residence and occupation], £ , for days' wages, as, etc.
CD., of [Residence and occupation], £ , for days' wages, as, etc.
E.F., of [Residence and occupation], £ , for days' wages, as, etc.
The work was done for [State the name, residence, and occupation of the person for whom or on whose credit the work was done] between the day of and the day of last.
The credit agreed to by the claimants expired on .
// a lien is claimed, add —
The claimants claim a lien for the above sums on the land of the said G.H. at [Mere give a description of the property to he charged sufficient for the) purpose of registration] [or on the steam-engine of the said G.H. now at (Here give such a description of the chattel to be charged as will identify it)].
Dated at , this day of , 19 [Signatures of Claimants.]
(5.) Affidavit Verifying Claim.
I, A.B. [or C.D.], make oath that the above [or section 72. annexed] claim is true [or that the said claim, so far as relates to me (or to A.B.) is true].
Or We, A.B. and CD., named in the above [or annexed] claim, make oath, and each for himself says, that the said claim, so far as relates to him, is true.
109
WAGES PROTECTION AND
[Where the affidavit is not made by the claimant himself a clause must be added to the following effect: I, CD., have full knowledge of the facts set forth in the above {or annexed) claim.]
Sworn before me at , in ] New Zealand, this day of \ , 19 .
[Or The said A.B. and CD. were , severally sworn before me at , | in New Zealand, this day of f , 19 . J
Or The said E.F. was sworn before j me at ,in New Zealand, [ this day of ,19 .] )
Wages Protection and Contractors' Liens
Extract from N.Z. Gazette No. 112, 11th Sept., 1919.
Rules under the Judicature Act, 1908
LIVERPOOL, Governor-General
ORDER IN COUNCIL
At the Government House at Wellington, this eighth
day of September, 1919.
Present:
His Excellency the Governor-General in Council. IN pursuance and exercise of the powers and authorities conferred by the fifty-first section of the Judicature Act, 1908, His Excellency the Governor-General of the Dominion of New Zealand, acting by and with the advice and consent of the Executive Council thereof, and with the concurrence of the Honourable the Chief Justice of the Supreme Court of New Zealand and the Honourable Sir Worley Bassett Edwards, a Judge of the said Court, doth hereby make the rules'set out in the Schedule hereto for regulating the procedure in the said Supreme Court in connection with enforcing claims under Part 111 of the Wages Protection and Contractors' Liens Act, 1908; and doth declare that the said rules shall come into force and take effect on the eleventh day of October, one thousand nine hundred and nineteen.
110
111
WAGES PROTECTION AND
SCHEDULE
1. The summons under section 66 of the Wages Protection and Contractors’ Liens Act, 1908, shall be in the form set forth hereunder, with such variations as the circumstances of each particular case may require.
2. The said summons shall be served not less than seven clear days before the date appointed therein for the hearing thereof.
3. The provisions of rules 583 and 584 of the Code of Civil Procedure shall apply to the proceedings commenced by the said summons.
4. The statement of claim to be filed under section 66 of the said Act, in addition to the particulars set forth in the forms given in the Third Schedule to the said Act, shall contain a statement as to the date on which the notice of intention to claim the lien or charge was given.
5. Where a claimant desires, in addition to relief under the said Act, to obtain a judgment against his debtor for the amount of his debt, he must proceed to obtain such judgment in a separate action commenced in the ordinary way.
Form of Summons.
In the Supreme Court of New Zealand, District.
Under the Wages Protection and Contractors' Liens Act, 1908.
Between A.8., of plaintiff, and CD.,
of , and E.F., of , defendants.
Let the above-named defendants appear before the
Supreme Court at on , the
day of ,19 ,at 11 o'clock
CONTRACTORS’ LIENS
112
in the forenoon, or so soon thereafter as the parties can be heard, on an application by the above-named plaintiff for—
1. An order declaring that in respect of the work specified in the statement of claim filed by the plaintiff herein the plaintiff is entitled to a charge for the sum of £ upon the moneys payable to the defendant E.F. by the defendant CD. under and in respect of the contract for the erection by the defendant E.F. of a house for the defendant CD. at
2. An order declaring that the plaintiff is entitled to a lien on the land owned by the defendant CD. on which the said house was agreed to be erected, and which said land is described in the said statement of claim filed herein.
3. An order directing the defendant CD. to pay the said sum of £ to the plaintiff.
4. An order for the payment to the plaintiff of the costs of and incidental to this summons and the said statement of claim.
5. Such further or other order in the premises as may be just.
Dated at the day of ,19 .
This summons was taken out by , of
Street, solicitor for the plaintiff, whose address for service is at the office of the said
F. D. THOMSON,
Acting Clerk of the Executive Council.
INDEX.
ABANDONMENT OF CONTRACT—
consequences of, 15
ABSOLUTE CHARGE—
acquired by lien or charge holder, 13
ACCEPTANCE OF BILL OF EXCHANGE—
effect of, upon lien, 44
AFFIDAVIT—
no fee for swearing, 67
AGREEMENT—
by employer to give lien, 1, 25
APPEAL—
from decision of Court, 65
nonsuit is a decision, 65
ASSIGNEE—
on bankruptcy, right of lien or charge passes to, 43
ASSIGNMENT—
of lien and charge, 44
ATTACHMENT—
of monies not allowed before workers and sub-contractors paid, 40
BANKRUPTCY—
Iien on land is security within meaning of "The Bank ruptcy Act, 1908," 40
of contractor does not defeat charge, 40
right of lien or charge passes to assignee on, 43
BILL OF EXCHANGE—
acceptance of, effect upon lien, 44
96
INDEX
114
BONA FIDE PURCHASER—
of land without notice of lien, 29
BREACH OF-
or contempt of order of Court, 65
BUILDER-
has no lien at Common Law, 1
may contract for lien, 1
right to hold materials, as an unpaid vendor, I
BUSH FELLING—
included in “work,” 8
CANCEL CLAIM—
application may be made to, 61
CASE—
may be stated by Court, 65
CHARGE—
absolute, acquired by lien or charge holder, 13
acceptance of bill of exchange, effect of npon, 44
bankruptcy of contractor, not defeated by, 40
can be assigned, 44
priority of, 18
statutory limitations of, 4
sub-contractor entitled to, 11
worker entitled to, 11
CHATTEL-
Court may authorize removal of fixture, 37, 64
expenses of detention of, no express right to deduct, 39
lien over, need not be registered, 37
or land affected by lien, sale of may be directed by Court, 35, 37, 63
sale of, held under possessory lien, 38
CLAIM—
may be cancelled by Court, 61
priority of, may be obtained under Sections 58 and 61, 14
CLAIMANT—
contract not completed, progress payments, remedies of, 6
H
98
INDEX
CLAIMING UNDER—
meaning of, 33
COMMON LAW—
builder has no lien at, 1
COMPANY—
service of notice upon, 49
COMPLETION OF WOEK
ascertainment of date of, 46
meaning of, 13
supply of materials, 47
CONSOLIDATION-
of actions, 58
CONTEMPT—
or breach of order of Court, 65
CONTRACT—
abandonment of, consequences of, 15
entire and indivisible, 6, 16
not completed, progress payments, 6
with contractor defines position of employer, 5
CONTRACT MONIES—
cannot be attached before workers and sub-contractors paid, 40
retention of, effect of notice of claim, 11
retention of one fourth after completion, 12
CONTRACTOR—
priority of lien and charge of, 18
rights of, may be defeated in certain circumstances, 19
COSTS—
as between solicitor and client, no power to grant 60
v*»v MK> uu JJUHCl IU g 1 ixii I by whom payable, 66
of registration of lien may be added to judgment by Court, 57
summons should include prayer for, 52
INDEX
116
COURT
appeal from decision of, 65
contempt or breach of order of, 65
jurisdiction of Supreme and Magistrate's, 50
may authorize removal of fixture, 37, 64
may cancel claim, 61
may direct sale of land or chattel affected by lien, 35, 37, 63
may state special case, 65
payment into, by first mortgagee, 60
payment into, by person liable, 59, 60
payments made under order of, sufficient discharge, 63
proceedings may be remitted to another, 57
CREDIT—
where acceptance of bill of exchange constitutes giving
of, 44
when given, proceedings impossible, 52
CEOWN-
land vested in, protected, 35
not stated to be bound by Act, 36
DEATH—
of lien or charge holder, right passes to personal representatives, 42, 43
DEATH—
of plaintiff, other claimants may proceed, 42
DECISION—
of Court, nonsuit is, 65
DETENTION—
of chattel, no express right to deduct expenses of, 39
DIEEGTOEY
provision of section 59 sub-section 2 is, 16
DISCHARGE
of lien, 66
DISEEGAED-
of provisions of section 59, sub-section 2, effect of, 16
H 2
INDEX
117
EMPLOYEE—a./? o a o-r
definition of, 26, 27, 28
position of, defined by contract with contractor, 5 whole interest of, 27
ENTIRE—
and indivisible contract, 6, 16
EQUITABLE INTEREST—
in land before registration of lien, claimants have no, 34
EXPENSES—
of detention of chattel, no express right to deduct, 39
FAILTJEE —
to observe provisions of Act, 15
FIXTURE—
Court may authorize removal of, 37, 64
FLOATING CHARGE—
characteristics of, 3, 14
GOOD FAITH—
payments made in, before receipt of notice, 12
HUSBAND—
contract made by, on behalf of wife, 27
JOINDEB-
of claims for wages, 58
of parties in one proceeding, 57
JUDGMENT—
Court may add costs of registering lien to, 57
in rem, certain order not, 63
proper form of, 62
JUKISDICTION—
of Supreme and Magistrate’s Courts, 50
INDEX
118
LAND-
affected by lien, sale of may be directed by Court, 35, 63
direction for sale of, regarded as writ of sale, 64
how lien registered against, 55
lien against, must be registered, 55
not affected until lien registered, 29, 56
on which house or road is constructed, affected by lien, 34
LIEN—
acceptance of bill of exchange, effect upon, 44
against land must be registered, 55
attaches to land on which land or house is constructed, 34
can be assigned, 44
claim of, not liable to stamp duty, 29, 56
contractor may contract with employer for, 1, 25
costs of registration, Court may add to judgment, 57 discharge of, 66
enforcement of, summons should include prayer for, 52
is security for payment of monies payable under contract, 23
joinder of parties in proceeding to enforce, 57
may be discharged by employer by payment into Court, 23
may be discharged by payment into Court or giving security, 60
non-possessory, 37
of worker limited to thirty days' earnings, 4
over chattels need not be registered, 37
possessory, 37
priority of, 18
registration of, 28, 55
does not affect priority, 18, 34
fee payable upon, 56
may be vacated by payment into Court, 56
statutory limitations of, 4
time for registration of, 29, 56
MAGISTRATE'S COURT—
jurisdiction of, 50
MANDATORY—
provision of section 59, sub-section 2 is not, 16
119
INDEX
MAN UFACTURER—
supplying materials, 10
MATERIALS—
supply of, 9
MERCHANT—
supplying materials, 10
MONEY PAYABLE UNDER THE CONTRACT—meaning of, 14
meaning of, 14
MONIES—
under contract cannot be attached before workers and sub-contractors paid, 40
MORTGAGE MONIES—
retained by Mortgagee pending completion of contract, 27
MORTGAGEE—
may be included in term “employer,” 26
second, excluded from proceeds of realization, 35
NATIVE FREEHOLD LAND—not subject to lien, 36
not subject to lien, 36
NON-POSSESSORY—
liens and charges under Act classified as, 3, 44
liens, 37
NONSUIT—
is decision of Court, 65
NOTICE OP CLAIM OF LIEN OB CHAEGE—
completion of work, 46
effect of, 11, 12
form of, 46
foundation of proceedings, 45
lapse of, through failure to register, time to claim charge, 45
must be' in writing, 46
must be signed, 46
service of upon a company, 49
supply of materials, 47
to whom given, 49
when may be given, completion of work, 46
INDEX
120
OEDER OE COURT—
contempt or breach of, 6a
OWNER—
definition of, 27, 34
PARTICULAR—
liens and charges under Act classified as, 3
PARTIES—
joinder of claims for wages, 58
joinder of, in one proceeding, 57
status of, to appear in each proceeding, 58
PAYMENT INTO COURT—by first mortgagee, 60
by first mortgagee, 60
by person liable, 59, 60
of part of claim, 59
under order of Court, sufficient discharge, 63
PAYMENT—
made in good faith before receipt of notice, 12
PERSONAL REPRESENTATIVES—
right of lien or charge passes to, on death, 42, 43
PLAINTIFF—
death of or failure by, to proceed, 58
POSSESSORY LIENS—
power of sale given to holders of, 38
what are, 37
POWER OF SALE—
given to holders of possessory liens, 38
PRAYER FOE ORDER—
for sale of land should be included in summons, 35
PRIORITY—
of claim may be obtained under sections 58 and 61, 14
of liens and charges, 18
not affected by registration of lien, 18
121
INDEX
PROCEDURE —
appeal, from decision of Court, 65
nonsuit is a decision, 65
special case may be stated, 65
application to have claim cancelled, 61
certain order not judgment in rem, 63
consolidation of actions, 58
costs by whom payable, 66
death of or failure by plaintiff to proceed, 58
form of notice, 46
interim orders for protection of property, 61
joinder of claims for wages, 58
jurisdiction of Supreme and Magistrate’s Courts, 50
lapse of notice through failure to register, time to claim charge, 45
lien against land must be registered, 55
notice, of intention to claim lien or charge is foundation of proceedings, 45
must be in writing, 46
must be signed, 46
service of upon a company, 49
to whom given, 49
when may be given, completion of work, 46
payment into Court, by first Mortgagee, 60
by person liable, 59, 60
proceedings, impossible when credit given, 52
may be remitted to another Court, 57
to enforce lien, who may join in, 57
proper form of judgment, 62
statement of claim, form of, 52
must be filed, 50
what it must state, 51
when must be verified by affidavit, 51
status of parties to appear in each proceeding, 58
statute contemplates only one proceeding in one Court, 50
summons, before Judge instead of Court, 61
form of, 52
how served, 53
proceedings commenced by, 50
rules 583 and 584 of Code apply in Supreme Court proceedings, 53
should include prayer for enforcement and certain costs, 52
122
INDEX
PKOCEDURE ( continued )
summons
to whom directed, 54
upon assignees necessary, 55
when personal service dispensed with, 53
when to be issued, 51
under Part I. distinct from that under Part 111., 50
vexatious claim of lien, 62
writ of summons set aside as irregular, 62
PROGRESS PAYMENTS—
contract not completed, 6
PROPORTIONATE PARTICIPATION—
by claimants in money available, 18
PUBLIC BODY—
land vested in, protected, 35
PURCHASER, BONA FIDE—
of land without notice of lien, 29
REGISTRATION OP LIEN—
Court may add costs of, to judgment, 57
does not affect priority, 18, 34
of discharge of lien, 66
over chattels not necessary, 37
procedure, 28
REMITTED—
proceedings may be, to another Court, 57
REMOVAL OF FIXTURE—
Court may authorize removal, 37, 64
RETENTION—
of contract monies, effect of notice of claim, 11
of one fourth of contract monies after completion, 12
ROAD—
constructed, to what land does lien attach, 34
formation, metalling and construction of, included in definition of work, 8
123
INDEX
SALE OF
land or chattel affected by lien may be directed by Court, 35, 37, 63
land or chattel, prayer for should be included in summons, 35
chattel held under possessory lien, 38
land, direction for sale of, regarded as writ of sale, 64
SECURITY—
lien may be discharged by giving, 60
within meaning of Bankruptcy Act, lien on land is, 40
SERVICE—
of notice upon a Company, 49
SET OFF—
by employer against contractor, 7, 42
SOLICITOR AND CLIENT—
costs, no power to grant, 60
SOLICITOR’S LIEN—
liens and charges compared with, 3
SPECIAL CASE—
may be stated, 65
STATEMENT OP CLAIM—form of, 52
form of, 5;
must be filed, 50
what it must state, 51
when must be verified by affidavit, 51
STAMP DUTY—
claim of lien, not liable to, 56
STATUTORY RIGHTS—
liens and charges under Act classified as, 3
liens and charges under Act are, 2
SUBCONTRACTOR—
entitled to charge, 11
includes person who supplies materials, 9
priority of liens and charges of, 18
rights of, may be defeated under certain circumstances, 19
to be paid before contract monies attached, 40
INDEX
124
SUMMONS—
before Judge instead of Court, 61
form of, 32
bow served, 53
may be issued after statement of claim lodged, 56
proceedings commenced by, 50
rules 583 and 584 of Code apply in Supreme Court, 53
should include prayer for enforcement of lien and certain costs, 52
should include prayer for order for sale of land, 35
to whom directed, 54
upon assignees necessary, 55
when personal service of dispensed with, 53
when to be issued, 51
SUPREME COURT—
jurisdiction of, 50
SUPPLY OF MATERIALS-
completion of work, 47
is work, 9
VEXATIOUS—
claim of lien, 62
WAGES—
joinder of claims for, 58
to be paid before contract monies can be attached, 40
WIFE—
contract made by husband on behalf of, 27
WORK—
definition of, 8
includes “bush felling,” 8
includes formation, metalling and construction of road, 8
meaning of “completion of,” 13
WORKER—
entitled to charge, 11
priority of liens and charges of, 18
WRIT OF SALE—
direction of sale of land regarded as, 64
WRIT OF SUMMONS—
set aside as irregular, 62
Printed by Whitcombe & Tombs Limited, Christchurcb. a«553
New Zealand Legal Works.
The Divorce and Matrimonial Causes Act, 1908, and the Rules Thereunder, edited by W. A. Sim, a Judge of the Supreme Court of New Zealand. Third edition (1921) bringing the work right up to present date. Priee, cloth 21/-, half-calf 25/-.
The Chattels Transfer Act, 1908, by G. O. K. Sainsbury. barrister of the Supreme Court of New Zealand. Price, cloth 15/-, half-calf 21/-.
Solicitors' Audits, by Archibald Ernest Currie, M.A., LL.B., barrister-at-law, and a solicitor of the Supreme Court of New Zealand. Price, cloth 10/6.
The Practice of the Supreme Court and Court of Appeal of New Zealand, by Sir Robert Stout, K.C.M.G., Chief Justice of the Supreme Court of New Zealand, and W. A. Sim, Judge of the Supreme Court. Sixth edition, revised by Judge Sim. Cloth 45/-, half-calf 50/-.
The Land Transfer Act, 1908, with introduction, notes and forms, by David Hutchen, a barrister of the Supreme Court of New Zealand. Priee, cloth 17/6.
Commercial Law in New Zealand, by T. G. Russell. 532 pages. Price, cloth 25/-. half-calf 30/-. For the use of the legal profession, law and commercial students, and business men generally.
The Land Laws of New Zealand, by T. F. Martin, barrister of the Supreme Court. Price, cloth 7/6.
Police Court Practice and Procedure, by F. W. Shortland. barrister and solicitor. Third edition, revised and enlarged. A guide for Justices and police officers, as well as for legal practitioners and law students. Price, cloth 30/-, half-calf 40/-.
Scale of Conveyancing Charges. Compiled by David Ferguson, a solicitor of the Supreme Court of New Zealand. The volume contains the scale of conveyancing charges within the Dominion of New Zealand, with the rulings thereon of the Council of the New Zealand Law Society. Price 15/-.
Contractors' and Workmen's Liens, by Claude H. Weston, LL.B., N.Z. Priee 10/-.
WHITCOMBE ® TOMBS LIMITED, Auckland, Chrlstchurch. Dunedin and Wellington, N.Z.; Melbourne and London.
Permanent link to this item
https://paperspast.natlib.govt.nz/books/ALMA1924-9917501963502836-Contractors--and-workmen-s-liens
Bibliographic details
APA: Weston, Claude H. (Claude Horace). (1924). Contractors' and workmen's liens. Whitcombe and Tombs.
Chicago: Weston, Claude H. (Claude Horace). Contractors' and workmen's liens. Auckland, N.Z.: Whitcombe and Tombs, 1924.
MLA: Weston, Claude H. (Claude Horace). Contractors' and workmen's liens. Whitcombe and Tombs, 1924.
Word Count
31,432
Contractors' and workmen's liens Weston, Claude H. (Claude Horace), Whitcombe and Tombs, Auckland, N.Z., 1924
Using This Item
Out of copyright (New Zealand)
To the best of the National Library of New Zealand’s knowledge, under New Zealand law, copyright in this book has expired.
You can copy this item, share it, and post it on a blog or website. It can be modified, remixed and built upon. It can be used commercially. If reproducing this item, it is helpful to include the source.
For further information please refer to the Copyright guide.