SUB-CONTRACTORS’ LIEN ACTIONS.

Taranaki Herald, Volume LXVI, Issue 16049, 6 February 1918, Page 4

SUB-CONTRACTORS’ LIEN ACTIONS.

AGAINST TARANAKI AMUSEMENTS, LTD. HEARING IN SUPREME COURT. In the Supremo Court at Now Plymouth on Tuesday his Honour Mr. Justice Edwards heard a number ot actions which had arisen out of the erection or Everybody’s Picture Theatre. The claims sot down for hearing were as follows: , , t,t Per ridge, r. Chappell and Moolley and Taranaki Amusements, Ltd.—Claim for £SB 12s for debt. John Most and AY. R. West v. Taranaki Amusements, Ltd., and Chappell and Woolley.—Claim for £94 19s 3d for debt. , Alfred G. Nixon and Wm. Charles Nixon v. Taranaki Amusements, Ltd., and' Chappell and Woolley.—Claim for £l4O 19s 3d for debt. A. E. Stonex and P. 0. Stonox v. Chappell and Woolley and Taranaki Amusements Ltd. —Claim for £24 10k lid for .debt. Carara Ceiling Company, Ltd., v. Taranaki Amusements, Ltd., and. Chappell and Woolley.—Claim for a charge (£454 15s 8d) under the Wages Protection and Contractors’ Lien Act, 1908. , air. A, A, Bennett appeared for the Taranaki Amusements, Ltd. Mr. A. H. Johnstone represented the Carara Ceiling Co., Ltd.; Mr. J. H. Qnilliam, Berridge and Nixon and Nixon; Mr. F. E. Wilson, West and Son. Chappell and Wool lev were not represented. As A. E. and P., C. Stonex were not represented their claim was struck out. [The four remaining cases were taken together. /Mr. Johnstone produced a statement proving the claim of the Carara Ceiling Company. . Thomas Herbert Bates, architect. New Plymouth, who was clerk of works for the Taranaki Amusements, Ltd., in connection with the erection of Everybody’s Theatre, said the Carara Ceiling Company completed their subcontract on February 23, 1917. Nixon and Nixon’s plun’lbing sub-contract was finished on March 27.

in the t-nsp of Bcrridgo, it was stated, Chappell and Woolley had confessed judgment in the Magistrate’s Court for the amrfunt claimed in the cases of Nixon and Nixon and West and Son. They had filed no notice of defence. Thomas Arthur Berridge, contractor. New Plymouth, deposed that shortly before Chappell and Woolley commenced work he entered into an agreement (not in writing) to supply them with about 600 yards of gravel, ho agreeing* to supply it at 7s a yard. They were to order it as required. Arrangements were also made for the supply, of sand at 8s 6d per yard. Witness delivered from time to time the amount claimed for and had receipts for these amounts. In December Chappell and Woolley gave him an prdor on the Taranaki Amusements, Ltd., for the amount ho now claimed, less £2 2s. Witness alsp supplied to Chappell and Woolley horses and drays for carting in connection with the excavation for the building. William lioberb West deposed that his firm had made, a contract with Chappell and Woolley for decorating in Everybody's Theatre, and finished the work on March 14, 1917. An account for the amount claimed was rendered on March 16.

Mr. Bennett, in opening the case for the defence, explained the position as seen by the Taranaki Amusements, Ltd. The company admitted that it had received the theatre duly erected, but twelve months beyond contract time. The actions were all taken because of the failure of the main contractors, Messrs. Chappell and Woolley, to pay thoir ■ sub-contractors, who now "asked that their respective claims should lie paid by the owners.of the theatre, the Taranaki Amusements, Ltd. The Amusements Company admitted a liability of £557 19s 9d under the building contract, and this amount it was prepo red to pay to such persons and in such amounts as the court should direct. In order to protect itself against any payment being- improperly made and to have for its protection an order of tho Supreme Court, tho theatre owners defended the proceedings and put the various claimants to proof that the amounts of their claims were correct and otherwise in order. No proceedings would have been necessary if the main contractors had fulfilled their obligations to pay the sub-contractors’ claims. The £557 Us 9d was the difference between what had been paid to the contractors and the contract price, plus extras. If h’.s Honour held that the company was in error in not retaining more than £557, then the company was bound to abide by the decision and pay it accordingly. If tho court allowed all the amounts which tho lienors claimed it would not amount to much more than this—probably about- £7OO. After bearing further explanation from Mr. Bennett as to the steps tho company took when the contractors got behind, his Honour remarked that it -would bo better to lose £3OO /than to finish the building at tho expense of local tradesmen.

Hugh Cresswell Grierson, sergeant in D Company of tor 35th Reinforcements and partner before his enlistment in the firm of-Grierson and Aimer, architects, Auckland, deposed that ho was the architect appointed in connection with the erection of Everybody’s Theatre. The contract was let to Chappell and Woolloy on, January] 12, 1016, and work was commenced on January 17. The contract price was £5283 IGs. . The contract was about 12 months overdue in completion. The fixed penalty for delay wad £3 per day. There was trouble almost from the first; there seemed to be a lack of funds, a lack of organisation, and the plant used seemed to ho out-of-date. Things came to such a pass that, afiter the contract time expired, they (tho architects) went to the builders and arranged to get more labour from Auckland. /

His Honour asked if this had any bearing on the case. Mr. Bennett .said it showed that tho company met with difficulties and had to do something. They saw now that the proper thing would have been to cancel the contract.

Witness said they did not think they had power to take over the work from the contractors as the latter kept working. To Mr. Johnstone: 'Although the contractors were 12 months overdue the company occupied the building from December 24 till June, part of the

overduo time, the building was not, however, actually finished. His Honour: What was the time tor the completion of the work? Witness: Twenty-two weeks from the date the contract was signed; that as, June 20, 1916. , . , . To Mr. Qullliam: Though the plant used by the contractors was hot adequate they kept on doing the best they could with the same plant.Thomas Currie List, newspaper proprietor, New Plymouth, and chairman of directors of the defendant company, said ho was aware of the payments made to the contractors from time to time. Up to July 21 the payments were in accordance with architects j certificates and the contract, button ; July 22 they paid a sum in anticipation of an architect’s certificate. By the time the next certificate was received (on September 12) three more payments had been made. On this date the Contractors went to Auckland with a view to having their finances adjusted. A few weeks later the company found that the arrangements they made were not adequate to .enable them to comply with the conditions of tho contract. The company therefore decided to pay all wages, on production of time-sheets, and other pressing accounts, to enable the contractors to complete the work. . This arrangement was made in October, 1916. Prior to that date the contractors had been paid all- money they were entitled to under the builders’ certificates. There were no further certificates until the final certificate of completion in June, 1917. To Mr. Johnstone: He presumed there was some resolution on the books of the company concerning this arrangement. He- did not know what sub-contractors were working on tho building at that time. To his Honour: The secretary banded cheques to the contractors for wages and for any pressing liabilities. To Mr. Johnstone: , The amount of wages and pressing claims must have been deducted from tho final amount paid to the contractors. The sub-con-tractors wero not paid by tho company pro rata, but some were paid a proportion of their claims. ' To Mr. Qullliam: Ho knew that Mr. Berridge had carted sand and gravel which was used in tho theatre, and as chairman of directors he would ho prepared to pay him on the advice, of their solicitor. They recognised his claim but must have the claims substantiated. They wero unwilling defendant® in these cases. ~ Mr. Qullliam: Not half ?s unwilling defendants as Mr. Berridge is a contractor] . ' , His Honour remarked that it seemed a rather pitiable position. William Mdsyatt Falconer, accountant, secretary of the Taranaki Amusements, Ltd., said that the balance of £557 19s 9d was on the assumption that Chappell and Woolley would bo liable for the payment of the Farmer Stone Company’s claim (which was -heard at the last session of the court). Mr. Johnstone: In this statement there are a number of payments to H. Brown and Company. How much was owing to them at the final settlement? Witness: Nothing. -, How much have they been paid since October?—£B4s 9s. Who are Brown and Co. ?—They are timber merchants who were sub-con-tractors for joinery, timber and cement.

So one sub-contractor was paid no less than £845 9s P—There was a special provision in the contract which Chappell and Woolley signed. Mr. List spoke of “pressing claims.” What were they?—On November 11

Nixon and Nixon were paid £6O and on November 23, £75. and the Carara Ceiling Company wore paid £2OO on November 30. ' Did they apply for more money 2 Yes. Did you pay them?—No; on legal advice. ■ . , Did yon take any advico about Brown and Co.?—Yes. They were to be paid in the terms of the original contract. His Honour expressed surprise at such a provision. Mr. Quilliam: I suggest, Mr. Falconer, that the reason why Brown and Co. were paid this large sura was because one 'of the' members of the firm held a very heavy mortgage over the company’s property?—The mortgage that you are speaking of was not completed at that date. But the fact contains that Brown and Co. held a heavy mortgage over the company?—Yes. This concluded the evidence for the defence and counsel’s argument was proceeded with. At the conclusion his Honour intimated that ho must consider tho matter.