Contractors Debts Act 1897 (ACT)
Contractors Debts Act 1897 (repealed)
A1897-29
Republication No 9
Effective: 1 July 2010
Republication date: 1 July 2010
As repealed by A2009-50 s 49
Unauthorised version prepared by ACT Parliamentary Counsel’s Office
About this republication
The republished law
This is a republication of the Contractors Debts Act 1897 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 1 July 2010.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $110 for an individual and $550 for a corporation (see Legislation Act 2001, s 133).
Contractors Debts Act 1897 (repealed)
Contents
Page
Name of Act 2
Dictionary 2
2ANotes 2
2BOffences against Act—application of Criminal Code etc 2
Certificate of cause of debt 3
Payment of amount owed if defendant has contract with someone else 3
Priority of assignments 4
Recovery of amount assigned 5
Assignment ceases to operate on satisfaction of debt etc 5
Certificate of discharge 5
Attachment after notice of proceeding 6
Application for leave to serve notice of proceeding 6
Proceedings after judgment 7
Contractor to give information about contractees 7
Contractor liable for certain debts of subcontractor 7
Act not taken to affect other remedies or rights under contract 8
Approved forms 8
Dictionary9
Endnotes
About the endnotes 10
Abbreviation key 10
Legislation history 11
Amendment history 13
Earlier republications 16
Contractors Debts Act 1897 (repealed)
An Act to better secure the payment of debts owing to workers, tradespeople and others
Name of Act
This Act is the Contractors Debts Act 1897.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.
For example, the signpost definition ‘contractee—see section 4 (1).’ means that the term ‘contractee’ is defined in that section.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
2ANotes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
2BOffences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
Certificate of cause of debt
(1)This section applies if the Supreme Court or Magistrates Court finds in a proceeding that an amount is payable by a person (the defendant) for work done, or materials supplied, by someone else (the plaintiff) and the nature of the work or materials, and where the work was done or the materials supplied, appears from the evidence.
(2)On application by the plaintiff, the court must give the plaintiff a certificate of the cause of debt.
Note If a form is approved under s 15 (Approved forms) for a certificate of cause of debt, the form must be used.
(3)However, the court must not give a certificate for work done on a moveable article of property if it would be practicable for a person who does work on it to have a lien on it by retaining possession of it.
(4)For this Act, a certificate under this section is conclusive evidence of the matters stated in it.
Payment of amount owed if defendant has contract with someone else
(1)This section applies if—
(a)a court has given a certificate under section 3 to a plaintiff (the worker or tradesperson) in relation to an amount; and
(b)the amount is, or may become, payable to the defendant (the contractor) by a third person (the contractee) under a contract with the contractee for all or part of the work done, or materials supplied, by the worker or tradesperson.
(2)The worker or tradesperson may claim the amount mentioned in the certificate from the contractee by serving on the contractee—
(a)a written notice of the debt; and
(b)a copy of the certificate.
Note 1If a form is approved under s 15 for this provision, the form must be used.
Note 2For how documents may be served, see the Legislation Act, pt 19.5.
(3)On service of the notice and copy of the certificate on the contractee, any amount that is or becomes payable to the contractor by the contractee under the contract is, to the amount of the debt, taken to have been assigned by the contractor to the worker or tradesperson.
(4)The contractee must satisfy the amount of the debt by paying to the worker or tradesperson any amount that is or becomes payable to the contractor by the contractee under the contract.
(5)However, the obligation to make payments to the worker or tradesperson does not begin until 7 days after the day the notice is served and ends when the contractee is shown a certificate of discharge for the debt and given a copy of the certificate.
Priority of assignments
(1)The assignment to the worker or tradesperson is subject to any earlier assignment under this Act that is binding on the contractor and contractee when the notice of debt is served on the contractee.
(2)However, if 2 or more notices of debt are served by different people on the contractor under this Act in relation to the contractee within a period of 7 days, the notices are taken to have been served at the same time.
(3)If notices are taken to have been served at the same time, payments of amounts owing to the contractor must be distributed among the people taken to have served a notice of debt on the contractee at the same time in proportion to the amounts mentioned in their notices of debt until the amounts are paid.
Recovery of amount assigned
(1)If the contractee fails to pay the amount of the debt in accordance with this Act, the worker or tradesperson may sue for and recover, in the worker or tradesperson’s own name, the amount assigned by any proceeding the contractor could have taken against the contractee if there had been no assignment under this Act.
(2)In the proceeding, the contractee may raise any defence that would have been available against the contractor if there had been no assignment under this Act, other than a defence based on anything done by the contractee after service of the notice of debt on the contractee.
Assignment ceases to operate on satisfaction of debt etc
(1)All or part of the assignment under this Act of the amount of the debt ceases to operate if—
(a)the debt is satisfied, in whole or in part, other than under this Act; or
(b)the judgment or order for which the certificate of debt was given is set aside.
(2)However, subsection (1) does not prejudice any honest payment or other dealing by the contractee on the basis of the assignment and the assignment continues in force so far as necessary to support the payment or dealing if the contractee made the payment or engaged in the dealing before notice and satisfactory evidence of the satisfaction of the debt or setting aside of the judgment or order is given to the contractee.
Certificate of discharge
(1)The worker or tradesperson must sign a certificate of discharge for the amount of the debt if—
(a)the contractor or contractee pays the amount of the debt; and
(b)the contractor or contractee asks the worker or tradesperson to do so.
Note If a form is approved under s 15 (Approved forms) for a certificate of discharge, the form must be used.
(2)If the worker or tradesperson refuses to sign a tendered certificate of discharge when asked to do so at the time of payment of the amount of the debt, the worker or tradesperson forfeits, and must pay to the contractor or contractee, a penalty equal to the amount of the debt.
(3)A proceeding may be taken in the Magistrates Court for the recovery of the penalty.
Attachment after notice of proceeding
(1)When, or any time after, the worker or tradesperson starts a proceeding against the defendant, the worker or tradesperson may, with the court’s leave, serve notice of the proceeding on the contractee stating the amount sued for.
Note If a form is approved under s 15 (Approved forms) for a notice, the form must be used.
(2)On service of the notice, any amount payable, or that becomes payable, by the contractee to the defendant, or any amount that the court orders, is attached and must remain in the hands of the contractee until the court gives judgment in the proceeding, unless the court on the application of the contractee or defendant otherwise orders.
Application for leave to serve notice of proceeding
(1)The worker or tradesperson may be the only party to the application for leave to serve notice of the proceeding.
(2)The worker or tradesperson must prove to the satisfaction of the court that the amount sued for is owing by the contractor.
Proceedings after judgment
If the plaintiff obtains judgment against the defendant, the plaintiff must give to the contractee further notice of debt.
Note If a form is approved under s 15 (Approved forms) for the notice, the form must be used.
Contractor to give information about contractees
(1)If the worker or tradesperson obtains a certificate of the cause of debt, the contractor must, if asked in writing by the worker or tradesperson, give the worker or tradesperson a written statement of the name and address of each contractee of the contractor.
Maximum penalty: 50 penalty units.
(2)An offence against this section is a strict liability offence.
Contractor liable for certain debts of subcontractor
(1)If the contractor sublets any part of the relevant work, the contractor is responsible to the extent provided by this Act for the wages of the workers employed by, and the materials and work supplied for, the subcontractor.
(2)A worker employed by, or a tradesperson supplying material or work for, the subcontractor may proceed against the contractor under this Act, as if the worker or tradesperson had been directly employed by, or had directly contracted with, the contractor.
(3)In this section:
tradesperson—if a person is owed an amount by someone else for work done and materials supplied by the person, the person is a tradesperson.
worker—if a person is owed an amount by someone else for work done, but not for materials supplied by the person, the person is a worker.
Act not taken to affect other remedies or rights under contract
This Act does not affect—
(a)any remedy that the worker or tradesperson may have against the contractor for the debt owing to the worker or tradesperson; or
(b)any right under a contract or otherwise between the contractor and contractee.
Approved forms
(1) The Minister may approve forms for this Act.
(2)If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act.
Dictionary
(see s 2)
Note 1The Legislation Act contains definitions and other provisions relevant to this Act.
Note 2For example, the Legislation Act, dict, pt 1 defines the following terms:
· Act
· Magistrates Court
· Minister
· notifiable instrument (see s 10)
· penalty unit (see s 133)
· sign
· Supreme Court.
contractee—see section 4 (1).
contractor—see section 4 (1).
defendant—see section 3 (1).
plaintiff—see section 3 (1).
tradesperson—see section 4 (1).
worker—see section 4 (1).
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
Abbreviation key
am = amended ord = ordinance amdt = amendment orig = original ch = chapter par = paragraph/subparagraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously Assembly pt = part div = division r = rule/subrule exp = expires/expired renum = renumbered Gaz = gazette reloc = relocated hdg = heading R[X] = Republication No IA = Interpretation Act 1967 RI = reissue ins = inserted/added s = section/subsection LA = Legislation Act 2001 sch = schedule LR = legislation register sdiv = subdivision LRA = Legislation (Republication) Act 1996 sub = substituted mod = modified/modification SL = Subordinate Law o = order underlining = whole or part not commenced om = omitted/repealed or to be expired
Legislation history
This Act was originally a NSW Act—the Contractors’ Debts Act 1897 No 29 (NSW).
The Act was in force in NSW immediately before 1 January 1911 (the date of establishment of the ACT) and was continued in force by the Seat of Government Acceptance Act 1909 (Cwlth), s 6.
Under the Seat of Government (Administration) Act 1910 (Cwlth), s 4 the Act had effect in the ACT as if it were an ACT law (subject to ordinances made under the Seat of Government (Administration) Act 1910).
The Australian Capital Territory (Self-Government) Act 1988 (Cwlth), s 34 (4) converted most former NSW laws in force in the ACT into ACT enactments. This allowed the ACT Legislative Assembly to amend and repeal the laws. This Act was converted into an ACT enactment on 11 May 1989 (self-government day).
Under the Interpretation Act 1967 (repealed), s 65 all former NSW Acts in force in the ACT immediately before 10 November 1999 (including this Act) became, for all purposes, laws made by the ACT Legislative Assembly. This completed the process of making former NSW Acts fully into ACT laws.
The republished Act was renamed as the Contractors Debts Act 1897 by the Justice and Community Safety Amendment Act 2001, sch 1.
Before 11 May 1989, ordinances commenced on their notification day unless otherwise stated (see Seat of Government (Administration) Act 1910 (Cwlth), s 12).
NSW legislation
Contractors Debts Act 1897 No 29
assented to 6 December 1897
commenced 6 December 1897
as amended by
Commonwealth legislation
New South Wales Acts Application Act 1984 No 41 sch 2 pt 6
notified 10 August 1984 (Cwlth Gaz 1984 No S313)
commenced 10 August 1984
Magistrates Court Ordinance 1985 No 67 sch pt 1
notified 19 December 1985
sch pt 1 commenced 1 February 1986 (s 2 and Cwlth Gaz 1986 No G3)
Legislation after becoming Territory enactment
Statute Law Revision (Penalties) Act 1998 No 54 sch
notified 27 November 1998 (Gaz 1998 No S207)
s 1 and s 2 commenced 27 November 1998 (s 2 (1))sch commenced 9 December 1998 (s 2 (2) and Gaz 1998 No 49)
Justice and Community Safety Amendment Act 2001 No 9 sch 1
notified 8 March 2001 (Gaz 2001 No 10)
ss 1-3, amdt 1.3 commenced 8 March 2001 (s 2 (2))remainder (amdts 1.1, 1.2, 1.4 and 1.5) commenced 8 September 2001 (IA s 10E)
Legislation (Consequential Amendments) Act 2001 No 44 pt 79
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)amdts 1.846-1.858 commenced 12 September 2001 (amdts
1.846-1.858 and see Gaz 2001 No S65)Criminal Code Harmonisation Act 2005 A2005-54 sch 1 pt 1.16
notified LR 27 October 2005
s 1, s 2 commenced 27 October 2005 (LA s 75 (1))
sch 1 pt 1.16 commenced 24 November 2005 (s 2)Justice and Community Safety Legislation Amendment Act 2006 A2006-40 sch 2 pt 2.12
notified LR 28 September 2006
s 1, s 2 commenced 28 September 2006 (LA s 75 (1))sch 2 pt 2.12 commenced 29 September 2006 (s 2 (1))
Statute Law Amendment Act 2007 (No 3) A2007-39 sch 3 pt 3.8
notified LR 6 December 2007
s 1, s 2 commenced 6 December 2007 (LA s 75 (1))sch 3 pt 3.8 commenced 27 December 2007 (s 2)
Statute Law Amendment Act 2008 A2008-28 sch 3 pt 3.18
notified LR 12 August 2008
s 1, s 2 commenced 12 August 2008 (LA s 75 (1))sch 3 pt 3.18 commenced 26 August 2008 (s 2)
as repealed by
Building and Construction Industry (Security of Payment) Act 2009 A2009-50 s 49
notified LR 26 November 2009
s 1, s 2 commenced 26 November 2009 (LA s 75 (1))
s 49 commenced 1 July 2010 (s 2)Amendment history
The New South Wales Acts Application Act 1984, sch 2, pt 6 sets out the text of this Act in an amended form and provided for the amended form to apply as the text of the Act in force in the ACT. This endnote, therefore, only details amendments made after the enactment of the 1984 Act.
Long title
long titlesub 2001 No 9 amdt 1.1
Name of Act
s 1sub 2001 No 9 amdt 1.2
Dictionary
s 2om 1984 No 41 sch 2 pt 6
ins 2001 No 9 amdt 1.2
Notes
s 2Ains A2005-54 amdt 1.88
Offences against Act—application of Criminal Code etc
s 2Bins A2005-54 amdt 1.88
Certificate of cause of debt
s 3sub 2001 No 9 amdt 1.2
am 2001 No 44 amdt 1.846; A2008-28 amdt 3.65
Payment of amount owed if defendant has contract with someone else
s 4om 2001 No 9 amdt 1.2
ins 2001 No 9 amdt 1.4
am 2001 No 44 amdts 1.847-1.849; A2008-28 amdt 3.66; ss renum R8 LA
Priority of assignments
s 5om 2001 No 9 amdt 1.3
ins 2001 No 9 amdt 1.4
am A2008-28 amdt 3.67
Recovery of amount assigned
s 6om 2001 No 9 amdt 1.3
ins 2001 No 9 amdt 1.4
Assignment ceases to operate on satisfaction of debt etc
s 7sub 2001 No 9 amdt 1.4
Certificate of discharge
s 8sub 2001 No 9 amdt 1.4
am 2001 No 44 amdt 1.850, amdt 1.851
Attachment after notice of proceeding
s 9 hdgsub A2008-28 amdt 3.68
s 9sub 2001 No 9 amdt 1.4
am 2001 No 44 amdt 1.852, amdt 1.853; A2006-40 amdt 2.86; A2008-28 amdt 3.69, amdt 3.70
Application for leave to serve notice of proceeding
s 10 hdgsub A2008-28 amdt 3.71
s 10sub 2001 No 9 amdt 1.4
am 2001 No 44 amdt 1.854; A2006-40 amdt 2.87; A2008-28 amdt 3.72
Proceedings after judgment
s 11sub 2001 No 9 amdt 1.4
sub 2001 No 44 amdt 1.855
Contractor to give information about contractees
s 12sub 2001 No 9 amdt 1.4
am 2001 No 44 amdt 1.856, amdt 1.857
sub A2005-54 amdt 1.89
Contractor liable for certain debts of subcontractor
s 13am 1985 No 67 sch pt 1
sub 2001 No 9 amdt 1.4
Act not taken to affect other remedies or rights under contract
s 14sub 2001 No 9 amdt 1.4
Approved forms
s 15sub 2001 No 9 amdt 1.4
sub 2001 No 44 amdt 1.858
Effect of amendments made by Justice and Community Safety Amendment Act 2001
s 16sub 2001 No 9 amdt 1.4
exp 8 September 2004 (s 16 (3))
Forms complying with omitted schedules
s 17am 1985 No 67 sch pt 1; 1998 No 54 sch
sub 2001 No 9 amdt 1.4
exp 8 September 2002 (s 17 (3))
First Schedule
om 1984 No 41 sch 2 pt 6
Second schedule
om 2001 No 9 amdt 1.5
Third schedule
om 2001 No 9 amdt 1.5
Fourth schedule
om 2001 No 9 amdt 1.5
Fifth schedule
om 2001 No 9 amdt 1.5
Sixth schedule
om 2001 No 9 amdt 1.5
Dictionary
dictins 2001 No 9 amdt 1.4
am A2007-39 amdt 3.22
def amount of the debt ins A2001-9 amdt 1.4
om A2008-28 amdt 3.73
def contractee ins A2001-9 amdt 1.4
def contractor ins A2001-9 amdt 1.4
def defendant ins A2001-9 amdt 1.4
def plaintiff ins A2001-9 amdt 1.4
def tradesperson ins A2001-9 amdt 1.4
def worker ins A2001-9 amdt 1.4
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No
Amendments to
Republication date
1 ord 1985 No 67 31 July 1992 2 Act 2001 No 44 12 December 2001 3 A2001-44 9 September 2002 4 A2001-44 9 September 2004 5 A2005-54 24 November 2005 6 A2006-40 29 September 2006 7 A2007-39 27 December 2008 8 A2008-28 26 August 2008
0
0
0