Contractors Debts Act (1879 No 18a) (NSW)

No. XXII.

An Act for be t te r securing the payment of

Debts due to W o r k m e n . [ 2 8 t h May,	1879.]
WH E R E A S i t is desirable a n d expedient to enable persons	on canno t be acquired and for which the i r employer has failed to pay

employed upon work on which a l ien over t h e t h i n g worked

shall

t h e m to obtain p a y m e n t from moneys due to thei r employer for t h e

work which t hey have done Be i t therefore enacted by the Queen ' s Mos t Exce l l en t Majesty b y a n d wi th t h e advice and consent of t h e Legis la t ive Counci l and Legislat ive Assembly of N e w South Wales in Pa r l i amen t assembled and by the au tho r i t y of t he same as follows ( tha t is to say) :—

1. This A c t shall be called and may be cited as t he " Contractors jur isdic t ion any sum shal l be found due and payable by t h e defendant for work and labour and the charac ter of t he work and the locality in which it has been done shall appear from the evidence t he presiding J u d g e or Jus t i ce shall upon the plaintiff's appl icat ion sign and deliver to h i m a certificate of t h e cause of debts in t h e form in t h e First Schedule which for t he purposes of th is A c t shall be conclusive b u t no such certificate shall be given if t he work appears to have been done upon a movable cha t te l of such a descript ion t h a t i t would be pract icable for a w o r k m a n to have a l ien thereon by re ta in ing the same Deb t s A c t . "
2. I f in any proceeding a t l aw in any Cour t hav ing competen t

i n his ac tua l possession A n d if t he s u m so found due as aforesaid

shall he in respect of daily weekly or mon th ly wages a n d exceeds t h e a m o u n t of sixty days wages such certificate shall he given for the a m o u n t of sixty days wages and no more .

3. I f t he work done be work or pa r t of or incidenta l to work for t h e doing of which any moneys m a y be due or accru ing due to t h e defendant in such proceeding (hereafter referred to as t he contractor) unde r any express or implied contract wi th a n y th i rd person the plaintiff in such proceeding (hereinafter referred to as t h e workman) m a y obtain p a y m e n t of t he sum ment ioned in t h e certificate out ol such moneys by serving on such th i rd person (hereinafter referred to as t he contractee) a not ice in t h e form in t h e Second Schedule together wi th a copy of t he certificate issued to h im as aforesaid.
4. Upon service as aforesaid all moneys due or to accrue due as aforesaid from the contractee to t he contractor to t he a m o u n t of t he workman ' s debt specified in t he certificate shall be deemed to be effect­ ual ly assigned by t h e contractor to t he workman b u t subject to any prior ass ignment thereof unde r th is A c t b inding upon the contractor and contractee a t t h e t ime of service be ing effected upon the contractee as aforesaid.

5. After such service and u n t i l a d ischarge for t h e workman ' s

said debt in t he form in the Third Schedule shall have been produced to and a copy thereof left wi th t he contractee he shall satisfy such debt out of t h e moneys assigned as aforesaid by pay ing to t he workman upon his applicat ion t h e said moneys as t hey become due and payable.

6. The priority of ass ignments as aforesaid shall be determined by the order of service of notice on the contractee b u t all notices served wi th in seven days of t he first not ice served in respect of t he same con­ t rac tor in any one year shall be deemed to be served a t t he same t ime for t h e purpose of securing t h e equal dis t r ibut ion of moneys due and

accru ing due to the cont rac tor amongs t	all w o r k m e n	serving not ice
wi th in such period of	seven days ra tably in proport ion to t h e	a m o u n t s

of their respective debts un t i l p a y m e n t of all in full and un t i l such period of seven days has expired no workman ' s debt shall be paid by t h e contrac tee out of such moneys.

7. If t h e contractee shall fail to pay as aforesaid t h e workman m a y sue for and recover in his own n a m e t h e moneys assigned as aforesaid as if t h e ass ignment of t he debt due to t he contractor were valid a t law and by any proceeding which the cont rac tor m i g h t have t aken h a d there been no ass ignment unde r this A c t subject to any defence which would have been available against t he contractor in

after service upon h im of the copy certificate and not ice aforesaid.	such proceeding except a defence founded on t h e ac t of t he contractee
8. U p o n satisfaction by any other means t h a n as aforesaid of t he whole or pa r t of t he workman ' s debt ment ioned on any certificate unde r th is A c t or on t he se t t ing aside of t he j u d g m e n t or order in respect of which any such certificate shall have been given any assign­ m e n t effected under th is A c t in respect of such debt shall in t h e whole or in pa r t cease to be operat ive b u t wi thou t prejudice to any bond fide paymen t or other deal ing by t h e contractor on t he footing of such ass ignment prior to not ice and sufficient evidence of such satisfaction or se t t ing aside hav ing been given to h i m and so far as m a y be necessary to such paymen t or dealing such ass ignment shall cont inue in force.
9. The w o r k m a n shall upon the request of t he contrac tor or contractee pay ing to h im the debt specified in t h e certificate sign a discharge therefor in t he form in t he Third Schedule and any workman refusing to sign a discharge as aforesaid if tendered for s igna ture a t t h e t ime of paymen t shall forfeit and pay to t h e contractor or contractee so t ender ing a s u m equal to t h e a m o u n t of the p a y m e n t such penal ty to be recoverable a t t he neares t Court of P e t t y Sessions.

10. The w o r k m a n when or a t any t i m e after he takes out a summons or plaint against t h e defendant may by leave of t he Court in which the summons or p la int is t aken out or of the J u d g e or Magis t ra te thereof serve a not ice of t h e action upon t h e contractee specifying the s u m sued for such not ice shall be in t he form contained in t he F o u r t h Schedule or to t he effect thereof and the reupon any moneys due or accru ing due by t h e contrac tee to the defendant or so m u c h thereof as t h e Cour t or J u d g e shall order shall be a t t ached and shall r emain in t h e hands of t h e contractee un t i l j u d g m e n t ba given in the act ion unless t he Cour t or a J u d g e thereof shall otherwise order on t he

appl icat ion of t he cont rac tee .

1 1 . Leave to serve such not ice may be obtained on the ex parte

appl icat ion of the w o r k m a n and he shall in such applicat ion prove on oath or affirmation to t he satisfaction of t he Court or a J u d g e thereof t h a t t h e s u m sued for is due and owing by the contractor .

12. The plaintiff in t he event of his obta ining j u d g m e n t against

the defendant shall t hen proceed by fur ther notice in t he form of t h e

Second Schedule hereto as before provided.

13. A contrac tor who shall sublet any par t of the work shall be

responsible to the ex ten t provided for by this A c t for t he wages of the w o r k m e n employed by a sub-contractor and a w o r k m a n employed by a sub-contractor m a y proceed agains t t h e cont rac tor as in this Ac t provided as if he had been direct ly employed by h im.
14. Every cont rac tor agains t w h o m a certificate shall have been
granted shall on demand furnish to every w o r k m a n employed by h im

a certificate in t h e form in t h e Fi f th Schedule of th i s Act a n d set t ing

forth t he n a m e and addit ions of his contrac tee A n d every con t rac to r

refusing or negdectins: to furnish or mak ing any u n t r u e s t a tement in such certificate shall be liable to a pena l ty no t exceeding fifty pounds

recoverable a t t he neares t Cour t of P e t t y Sessions.

15. N o t h i n g in this A c t shall be cons t rued to pre judice any

remedy which t h e workman m a y have against t he cont rac tor in respect of t he debt due to h i m or save as expressly provided to affect any r igh t subsis t ing unde r any con t rac t as aforesaid or otherwise between the contrac tor and contractee .

16. This Act shall come in to force a t t he expi ra t ion of six mon ths after the passing thereof.

S C H E D U L E S .

FIRST SCHEDULE.

In pursuance of the "Contractors Debts Act" I hereby certify that on the

day of	the sum of £	was on a proceeding before me ascertained to
be due and payable by (a)	to (b)	for work and labour done by

him as (c) upon (d)

As witness mv hand this day of 18

(e)

Judge

Presiding or Magistrate.

SECOND

SECOND SCHEDULE.

To (a)

TAKE notice that the work specified in the certificate a copy of which is served herewith
having been done in performance of an agreement entered into with you by (b)
who has failed to pay me for such work You are hereby required under the "Contractors
Debts Act" to pay ma on demand the amount specified in the certificate out of any
moneys now due or from time to time becoming due from you to the said (c)
under the said agreement and on your failing so to do you will under the said Act be

liable to legal proceedings at my suit to obtain payment

As witness my hand this day of I8

(d)

THIRD SCHEDULE.

I hereby acknowledge that the debt £ certified to be due to me by

in a certificate issued under the " Contractors Debts Act" and dated the

day of 18 has been fully discharged.

As witness my hand this day of 18 .

(a)

FOURTH SCHEDULE.

In the Court. Between A.B. Plaintiff and

District C D . Defendant.

To E.P. of By leave of this Court (or of G.H. a Judge of

this Court) and on application of A.B. the plaintiff you are hereby required to retain in your hands until judgment herein or as this Court otherwise orders all moneys due or accruing due from you to the said C D . or if the same shall exceed pounds then

pounds thereof.

Dated this day of 18

Judge of the Court.

F IFTH SCHEDULE.

I hereby certify that (a)	is the contractee of the work (b)
upon which you (c)	are now employed.

As witness my hand this day of 18

(d)