Concrete Constructions Pty Ltd v Barnes - [1938] HCA 65

CONCRETE CONSTRUCTIONS PROPRIETARY BARNES

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Contractors' Debts-Liability of contractor in respect of material supplied to sub- H. C. OF

contractorContractors Debts Act of 1897 (N.S.W.) (No. 29 of 1897), sec. 18. Statute-Consolidating Act-Adoption of construction placed upon Acts consolidated. Precedent-Overruling decision which has stood for a long period.

Sec. 18 of the Contractors' Debts Act of 1897 (N.S.W.) provides that " contractor who sublets any part of the work shall be responsible to the extent provided for by this Act for the wages of the workmen employed by, and for material, or material and work and labour supplied for the sub-contractor and a workman employed by, or a tradesman supplying material, or material and work and labour for a sub-contractor, may proceed against the contractor, as in this Act provided, as if he had been directly employed by, or had directly contracted with him."

Held, by Latham C.J., Dixon and McTiernan JJ. (Rich J. not deciding, on the ground that it was undesirable to upset the long-settled interpretation of the section), that sec. 18 only extends the procedure available under the other provisions of the Contractors' Debts Act of 1897 to a case where there is a sub-contractor in addition to a contractor, a contractee, and a workman or tradesman; and does not impose upon a contractor an unrestricted personal liability for the debts of a sub-contractor in respect of wages or materials or

61 CLR 210

work and labour. So held notwithstanding that the contrary interpretation had been placed upon the statutory provisions consolidated in the Contractors Debts Act of 1897.

Ex parte Monie, (1883) 4 L.R. (N.S.W. 138, Ex parte Johnston, (1886) 2 W.N. (N.S.W.) 58, and Ex parte Road Maintenance and Contracting Co. Ltd.; Re Jordan, (1936) 36 S.R. (N.S.W.) 362; 53 W.N. (N.S.W.) 124, on this point

Decision of the Supreme Court of New South Wales (Full Court) Barnes V. Concrete Constructions Pty. Ltd., (1938) 55 W.N. (N.S.W.) 154, reversed

APPEAL from the Supreme Court of New South Wales.

In an action brought in the Supreme Court of New South Wales the plaintiff, William Henry Barnes, claimed from the defendant. Concrete Constructions Pty. Ltd., the sum of £348 Os. 4d.

The declaration set forth that before and at the time of the matters complained of the defendant was constructing certain works at Challis House, Martin Place, Sydney, by virtue of a contract entered into between the defendant and another person, and before and at the time aforesaid had sublet part of such work to a sub-contractor named F. Keller, and thereupon the plaintiff sold and delivered certain materials amounting in all to the sum of £348 Os. 4d. to Keller who in consideration of that sale and delivery promised to pay for the said materials, all of which materials were used by Keller in performing that part of the work above mentioned which had been sublet to him, and the moneys due…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Concrete Constructions Pty Ltd v Barnes

Details

AGLC: Concrete Constructions Pty Ltd v Barnes [1938] HCA 65
Case: [1938] HCA 65
Decision Date: 23 December 1938

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the interpretation of section 18 of the Contractors' Debts Act 1897 (NSW). The plaintiff, Mr. Barnes, had supplied materials to a sub-contractor, Mr. Keller, who had failed to pay for them. Mr. Barnes sought to recover the debt from the head contractor, Concrete Constructions Pty Ltd, arguing that section 18 imposed liability on the contractor for the debts of a sub-contractor. The defendant company demurred to the plaintiff's declaration, asserting no contractual obligation existed and that the plaintiff had not obtained the required certificate under the Act.

The central legal issue before the High Court was whether section 18 of the Contractors' Debts Act 1897 (NSW) imposed an unrestricted personal liability on a contractor for the wages of workmen employed by, or for materials supplied to, a sub-contractor. This required the Court to consider whether previous interpretations of the section, particularly the decision in *Ex parte Monie*, which had stood for a significant period, were correct, or if the Act merely extended the existing procedural remedies to situations involving sub-contractors.

Latham C.J., with whom Dixon and McTiernan JJ. agreed, held that section 18 was intended to extend the procedural mechanisms of the Contractors' Debts Act to cases involving sub-contractors, rather than creating a new, independent liability for contractors. The Court reasoned that the phrase "to the extent provided for by this Act" indicated that any liability imposed on a contractor under section 18 was subject to the limitations and conditions found elsewhere in the Act, such as the requirement for moneys to be due or to accrue due from the contractor to the sub-contractor. The Court found that the previous interpretation, which imposed an unlimited personal liability on the contractor, failed to give adequate effect to these limiting words and produced unjust results. Rich J. did not decide the appeal, deeming it undesirable to overturn a long-settled interpretation of the statute.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales. The appeal was allowed, and the judgment of the Supreme Court in favour of the plaintiff was set aside.

Orders