Contractors' Debts Act of 1897 (NSW)

Act No. 29, 1897.

An Act to consolidate the Acts for bet ter securing the payment of Debts due to Work­ men, Tradesmen, and others. [6th December, 1897.]

BE it enacted by the Queen's Most Excellent Majesty, by and Legislative Assembly of New South Wales in Parliament assembled, "with the advice and consent of the Legislative Council and and by the authority of the same, as follows :—

1. This Act may be cited as the "Contractors' Debts Act

of 1897."

2. The Acts mentioned in the First Schedule hereto are hereby

repealed.

3. If in any proceeding at law in any court of competent juris­ diction, any sum is found due and payable by the defendant for work and labour, or for material, or for material and work and labour, done, supplied, or provided by the plaintiff, and the character of the work, or material, and the locality in which the same has been done, supplied, or provided appears from the evidence, the presiding judge or justice of the peace shall upon the plaintiff's application sign and deliver to him a certificate of the cause of debts in the form in the Second Schedule, which for the purposes of this Act shall be conclusive.

4. No such certificate shall be given for any sum due and payable for work and labour if the work appears to have been done upon a movable chattel of such a description that it would be practicable for a workman to have a lien thereon by retaining the same in his actual possession.

7. If the work done or material supplied be work or material or part of or incidental to work or material for the doing or supplying of which any moneys may be due or accruing due to the defendant in such proceeding (hereinafter referred to as the contractor) under any express or implied contract with any third person, the plaintiff in such proceeding (hereinafter referred to as the workman if the sum sued for

5. If the sum so found due for work and labour is in respect of daily, weekly, or monthly wages, and exceeds the amount of sixty days' wages, such certificate shall be given for the amount of sixty days' wages and no more.

6. All proceedings under this Act in respect of debts due for material or for material and work and labour shall be instituted within three months after any such debt accrues due.

for and found to be due is on account of work done, or as the trades­

man if the said sum is on account of material or material and work and labour) may obtain payment of the sum mentioned in the certifi­ cate out of such moneys by serving on such third person (hereinafter referred to as the contractee) a notice in the form in the Third Schedule, together with a copy of the certificate issued to him as aforesaid.
8. Upon service as aforesaid all moneys due or to accrue due as aforesaid from the contractee to the contractor to the amount of the workman's or tradesman's debt specified in the certificate shall bo deemed to be effectually assigned by the contractor to such workman
or tradesman, but subject to any prior assignment thereof under this

Act binding upon the contractor and contractee at the time of service being effected on the contractee as aforesaid.

9. After such service, and until a discharge for the workman's

or tradesman's said debt in the form in the Fourth Schedule has
been produced to, and a copy thereof left with the contractee, he shall satisfy such debt out of the moneys assigned as aforesaid by paying
to the workman or tradesman upon his application the said moneys as
they become due and payable.
10. The priority of assignments as aforesaid shall be determined by the order of service of notice on the contractee, but all notices served within seven days of the first notice served in respect of the same contractor shall be deemed to have been served at the same time for
t he purpose of securing the equal distribution of moneys due and
accruing due to the contractor amongst all workmen and tradesmen serving notice within such period of seven days ratably in proportion
to the amounts of their respective debts until payment of all in full,

and until such period of seven days has expired the contractee shall not pay any such debt out of the moneys clue and accruing due as aforesaid.

11. If the contractee fails to pay as aforesaid, the workman

or tradesman may sue for and recover in his own name the moneys

assigned as aforesaid as if the assignment of the debt due to the

contractor might have taken had there been no assignment under this	contractor were valid at law, and by any proceeding which the
Act, but subject to any defence which would have been available against the contractor in such proceeding, except a defence founded
on the act of the contractee after service upon him of the notice and t h e copy of the certificate aforesaid.
12. Upon satisfaction by any other means than as aforesaid of t he whole or part of the debt mentioned in any certificate under this
Act, or on the setting aside of the judgment or order in respect of which any such certificate was given, any assignment effected under this Act in respect of such debt shall in the whole or in part cease
to be operat ive, but without prejudice to any bona fide payment or
other dealing by the contractee on the footing of such assignment

prior

prior to notice and sufficient evidence of such satisfaction or setting aside having been given to him, and so far as may he necessary to such payment or dealing such assignment shall continue in force.

18. The workman or tradesman shall upon the request of the contractor or contractee paying to him the debt specified in the certificate, sign a discharge therefor in the form in the Fourth Schedule, and any workman or tradesman refusing to sign a discharge as aforesaid if tendered for signature at the time of payment shall forfeit and pay to the contractor or contractee so tendering a sum equal to the amount of the payment, such penalty to be recoverable at the nearest court of petty sessions.
14. The workman or tradesman when or at any time after he takes out a summons or plaint against the defendant may by leave of the court in which the summons or plaint is taken out, or of the Judge or magistrate thereof, serve a notice of the action upon the contractee specifying the sum sued for. Such notice shall be in the form contained in the Fifth Schedule or to the effect thereof, and thereupon any moneys due or accruing due by the contractee to the defendant, or so much thereof as the court, judge, or magistrate shall order, shall be attached and shall remain in the hands of the con­ tractee until judgment is given in the action, unless the said court, judge, or magistrate shall otherwise order on the application of the contractee, or of the defendant.
15. Leave to serve such notice may be obtained on the ex-parte application of the workman or tradesman, and he shall in such application prove on oath to the satisfaction of the court or judge or magistrate thereof that the sum sued for is duo and owing by the contractor.

16. The plaintiff in the event of his obtaining judgment against the defendant shall then proceed by further notice in the form of the Third Schedule as hereinbefore provided.
17. Every contractor against w h o m a certificate is granted

shall on demand furnish to every workman employed by him, and to

and work and labour, a certificate in the form in the Sixth Schedule	every tradesman to whom he is indebted for any material, or material
of this Act, and setting forth the name and addition of his contractee. And every contractor refusing or neglecting to furnish, or making any untrue statement in such certificate, shall be liable to a penalty not exceeding fifty pounds, recoverable at the nearest court of petty sessions.
18. A 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

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.

19. Nothing in this Act shall be construed to prejudice any remedy which the workman or tradesman may have against the con­ tractor in respect of the debt due to him, or save as expressly provided to affect any right subsisting under any contract as aforesaid, or other­ wise between the contractor and contractee.

S C H E D U L E S .

F I R S T S C H E D U L E .

Title of Act. Year and Number of Act.

Cont rac tors ' D e b t s Act . . . 42 Vic. N o . 22.

Cont rac tors ' D e b t s Ac t A m e n d i n g A c t . . . 52 Vic. N o . 3.

S E C O N D S C H E D U L E .

I n pu r suance of t h e Cont rac tors ' Deb t s Ac t of 1897 I hereby certify t h a t on

t he day of t h e sum of £ was on a proceeding before mo

ascer ta ined to be due and payable by (a) to (b) for work and labour

done by him as (c) , (or for mater ia l provided by h im for, or for mater ia l

and work and labour provided and done by h im for and upon) (d)

As witness my hand this day of 18 .

(e) Pres id ing J u d g e or Magis t ra te .

T H I R D S C H E D U L E .

To (a)

Take not ice t h a t the work (or mater ia l , or mater ia l and work and l abour ) specified

in t he certificate, a copy of which is served herewi th , having been done (or provided, or provided and done) in performance of an ag reemen t en te red in to wi th you by (b)

, who has failed to pay me for such work (or mater ia l , or mater ia l and work

and l abour ) , you a re hereby requi red unde r t he Cont rac tors ' Deb t s Ac t of 1897 to pay me on demand the a m o u n t specified in t he certificate ou t of any moneys now due or from t ime to t ime becoming due from you to t he said (c) u n d e r t he said agreement , and on your failing so to do, you will unde r t he said A c t be liable to legal proceedings a t my suit to obtain payment .

As witness my hand this	day	of	18	.
(d)

F O U R T H S C H E D U L E .

I hereby acknowledge t h a t t he debt £ certified to bo d u e to me by

(a) in a certificate issued u n d e r t h e Cont rac tors ' D e b t s Ac t of 1897 and da ted

t h e day of 18 has been fully discharged.

A s witness may h a n d this	day of	18	.
(B)

FIFTH

F I F T H SCHEDULE.

I n tlio Court

Between A.B., plaintiff and CD. , defendant.

To E.E., of
By leave of this Court (or of G-.II. a judge of tins Court, or J.K. a magistrate of

this Court) and on the 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 CD. , or if the same shall exceed pounds

then pounds thereof.

Dated this day of IS .

Judge (or Magistrate) of the Court.

S IXTH SCHEDULE.

I hereby certify that (a) is the contractee of the work (6) upon

which you (c) are now employed (or : for which you (d) have provided

material, or material and labour).

As witness my hand this day of 18 .

to