Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

BADGE CONSTRUCTIONS (SA) PTY LTD v RULE CHAMBERS PTY LTD

[2007] SASC 417

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice David)

7 December 2007

INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR STATUTES - WORKMEN'S LIENS - ENTITLEMENT TO

INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR STATUTES - WORKMEN'S LIENS - ENFORCEMENT

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS - IMPLIED TERMS

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT

Appeal by lienor from decision of master, directing Registrar-General of Lands to cancel worker’s lien registered over respondent’s (lienee) property – worker’s lien registered in circumstances of building dispute between appellant and respondent – written contract executed between appellant and respondent – contract provided for progress payments to appellant – Tie in Deed executed by appellant, respondent and respondent’s financier – tie in deed provided that appellant would not lodge any caveat over respondent’s property – appellant claimed that respondent breached contract by late processing of progress claims – appellant withdrew labour from building site – respondent treated withdrawal of labour as repudiation and terminated contract – appellant claimed termination was unlawful – appellant registered worker’s lien over respondent’s property for work done and materials supplied – appellant instituted proceeding to enforce lien – respondent applied to cancel lien pursuant to provisions of Worker’s Liens Act 1893 (SA) – section 32 of Worker’s Liens Act provides that any person prejudicially affected by lien, may apply to the court to have lien cancelled or modified – respondent claimed prejudicial affect – respondent claimed that appellant’s registration of worker’s lien breached provisions of tie in deed preventing lodging of caveat – section 12 of the Worker’s Liens Act provides that notice of lien shall be deemed to be a caveat – respondent claimed appellant had not satisfied requirements of section 5 of the Worker’s Liens Act – section 5 provides for registration of worker’s lien by a contractor or sub-contractor, in circumstances where contract price, or part thereof, has accrued due – appellant claimed that moneys claimed had accrued due pursuant to implied terms of contract – whether worker’s lien deemed to be a caveat – whether respondent prejudicially affected by worker’s lien – whether alleged implied terms form part of contract – whether contract price had accrued due – whether, in exercise of court’s discretion, lien should continue.

Held, dismissing the appeal:

(Per Gray J; David J concurring): Worker’s lien deemed to be a caveat under section 12 of Worker’s Liens Act – appellant acted in breach of obligations under tie in deed by registering worker’s lien – alleged implied terms not necessary to give contract business efficacy – alleged implied terms contradicted express terms of contract and intention of parties – moneys claimed not…