CLAIM FOR WAGES

Southland Times, Issue 25361, 13 August 1935, Page 4

CLAIM FOR WAGES

ROAD CONTRACT CASE FURTHER EVIDENCE

Further argument was heard in the Gore Magistrate’s Court before Mr W. H. Freeman, S.M., yesterday m the case in which a number of labourers are proceeding against C. D. McConnell, the Neuchatel Asphalte Company, the Southland County Council and two others to recover wages due by McConnell as sub-contractor on road construction work on the main highway. At the previous hearing the Magistrate reserved his decision, but subsequently the Neuchatel Company asked leave to be heard. Mr Macalister submitted that the money payable by the Southland County Council to the Neuchatel Company was not properly attachable. He said there was authority under the Act that when there was no dispute between a sub-contractor and the contractor the payment into Court of the amount due to the sub-contractor relieved the contractor of all liability and ‘expense in connection with the disposal of the money. Counsel then dealt in detail with the individual claims of workers and sub-contractors, a number of which he stated were not in order. He wished to call the evidence of the manager of the company, Frank Chapman, of Auckland, manager for the Neuchatel Asphalte Company, Limited, said that on November 22, 1934, his company’s tenders for the Southland County Council for construction and sealing of two sections of the main highway in the Southland County, Brydone-Mataura and Gore-McNab, were accepted. These were two separate contracts, the price for the BrydoneMataura section being £6331 11/9 and for the Gore-McNab section £5409 4/11. The contracts were let to McConnell to supply the materials. The subcontract applied to both separate contracts with the county and constituted one job. .McConnell did the work in both sections. In February, 1935, it was apparent that he was not carrying out his work and his company was very dissatisfied. He was not doing • the work with sufficient despatch, and under pressure he .gave up the GoreMcNab section of the contract. He was paid on the estimate of the completed work as certified by the engineer for the Southland County. McConnell then continued with the Brydone-Mataura section, but again fell down on his job, and the company was in danger of not being able to complete its contract with the county within the specified time. Witness accordingly interviewed McConnell and secured an agreement dated May 13, 1935, to vacate the work the next day. On May 15 an estimate of the work done by him was completed and it was signed by .him and dated June 15, 1935. This showed that the total work done on the Gore section was £460 17/8 and on the Mataura section £1370 19/7, a total of £lB3l 17/3. He had received £1374 7/11 in weekly payments, leaving a balance of £457 9/4 in the company’s hands, being the amount of retention moneys in accordance with what the company understood to be the provisions of the Wages Protection Act. The last payment made to McConnell was on May 25, bringing the total payments up to the 75 per cent, it was understood that the company was permitted to pay. At this stage witness was not aware of any charge due to his being in Christchurch and not having been informed by his Auckland office that any charges had been received. The list of charges, however, did show that a few charges had been received subsequent to May 18, so to this extent the £22 3/4 represented an over-payment. So far as this arrangement with McConnell was concerned, the company recognized that it might not have been liable to pay him anything over and above the amount he received and, indeed, the company was so delayed in the work that it probably had a heavy counter-claim against him for breach of agreement. However, the arrangement had been accepted whereby the company paid for the work done as certified by the engineer and it had honoured that agreement and that was the reason why the company had paid the balance of the money, less solicitor’s costs, into Court. Had McConnell carried out his contract it would have been possible to put the first seal on the road before the winter, but owing to his delay this had not been possible and in result the company would have to maintain the road until the spring, which would be the earliest time when the seal could be put on. This, of course, would involve heavy maintenance charges. There ■ were no moneys due to McConnell under the contract. What the company paid him was a sum of money to vacate the contract. It was recognized that if he carried on, the company’s losses would be considerably heavier, and the company considered it best to pay him a sum of money in order to be finished with him. This sum was made available to those persons who had registered charges. There was still due to the company a considerable sum of money from the Southland County. This money was not available to McConnell’s workers and sub-contractors. He had never heard of such a claim being made. In the trade the understanding was that the workers of a sub-contractor were entitled to a charge on the moneys due under the sub-contract. He had' never heard of a claim being made to extend the. charge to moneys due under the head contract.

Lengthy legal argument was heard, the Magistrate reserving his decision.