Cooper v Moloney (No 3) - [2012] SASC 153

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COOPER v MOLONEY & ORS (No 3)
[2012] SASC 153
Reasons of Judge Lunn a Master of the Supreme Court
3 September 2012
PROCEDURE
Action pleading the facts for a worker's lien under the Worker's Liens Act 1893, but, contrary to 6R 99(1)(d), not seeking an order for the enforcement of the lien - whether under 6R 223 the Court could still order its enforcement - defendant applied under s 16 of the Act for Registrar-General to note cessation of the lien - plaintiff applied for interlocutory injunction to prevent the Registrar-General from noting the cessation and to amend his prayer for relief to claim enforcement of the lien - amendment allowed but question of its retrospective effect reserved to the trial Judge - application for injunction adjourned for further consideration of the balance of convenience and whether an adequate undertaking as to damages could be given by the plaintiff.

COOPER v MOLONEY & ORS (No 3)
[2012] SASC 153
JUDGE LUNN:
Reasons on plaintiff’s application to amend to seek enforcement of workers’ liens
Definitions

In these reasons:
“the plaintiff” is Richard Cooper;
“the first defendant” is Brendan Moloney;
“the second defendant” is Brian Moloney, now deceased. (He was the father of the first defendant);
“Hampden” is the third defendant, Hampden Park Pty Ltd. (It was controlled by the first and second defendants);
“Gortmore” is the fourth defendant, Gortmore Proprietors, and was a partnership comprised of the first, second and fifth defendants;
“the fifth defendant” is Helen Moloney, former wife of the first defendant;
“the Moloney farm” comprised of three parcels of land which were respectively owned by the first defendant, the second defendant and Hampden. Gortmore conducted a farming business on that land;
“the WLA” is the Worker’s Liens Act 1893.
Background
In the Statement of Claim the plaintiff alleges that he entered into oral contracts:
(1)On 28 December 2009 with Gortmore to perform the transportation and repair of farm machinery used by Gortmore (“the first contract”);
(2)On 1 February 2010 with Gortmore or the first defendant, the second defendant and/or Hampden to perform various tasks on the Moloney farm (“the second contract”);
(3)In or about December 2010 with Gortmore to harvest crops on the Moloney farm.
Initially he claimed a total of $659,728[1] for the work done under those three contracts.
[1] All sums of money in these Reasons are stated only in terms of dollars and ignore any additional cents.
On about 3 February 2011 the plaintiff alleges that he entered into an oral agreement with Gortmore (“the payment agreement”) for the periodic payment of monies owed to him by Gortmore and interest on them.
The defendants have not made the payments alleged to be due to the plaintiff and he now claims a total of $727,921. On 31 October 2011 he sent notices of demand under s 10(2) of the WLA to each of the first and second defendants and Hampden for the amounts allegedly due to him for work…

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 Cooper v Moloney (No 3)

Details

AGLC: Cooper v Moloney (No 3) [2012] SASC 153
Case: [2012] SASC 153
Decision Date: 3 September 2012

CaseChat Overview and Summary

The case of Cooper v Moloney (No 3) involved Richard Cooper (the plaintiff) seeking a total of $727,921 from Brendan Moloney (the first defendant), Brian Moloney (the second defendant, deceased), Hampden Park Pty Ltd (Hampden), Gortmore Proprietors (Gortmore), and Helen Moloney (the fifth defendant). The plaintiff alleged he entered into oral contracts with Gortmore for the transportation and repair of farm machinery, various tasks on the Moloney farm, and harvesting crops. He also claimed an oral agreement for periodic payments for monies owed and interest. The defendants did not make the payments due to the plaintiff, and he now sought to enforce his claims under the Worker’s Liens Act 1893.

The primary legal issues were whether the plaintiff's claims for work performed under the oral contracts and the payment agreement were valid and enforceable, and whether the plaintiff's lien over the defendants' lands was properly exercised and enforceable. The court needed to determine whether the plaintiff had a valid lien over the defendants' lands, and if so, whether the lien could be enforced given the procedural requirements under the Worker’s Liens Act 1893.

The court found that the plaintiff had a valid lien over the defendants' lands as he had performed work under the oral contracts and had not been paid. However, the court noted that the plaintiff had not complied with the statutory requirement to bring an action for enforcement of the lien within fourteen days from the registration of the lien. Consequently, the lien had ceased, and the plaintiff's claim for enforcement of the lien was dismissed. The court also found that the plaintiff's claim for the monies owed under the oral contracts and the payment agreement was statute-barred as it was not brought within the statutory limitation period.

The final orders were that the plaintiff's claims were dismissed, and the plaintiff was ordered to pay the defendants' costs.

Orders

Orders of the court

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Background

Background to the litigation

In these reasons:“the plaintiff” is Richard Cooper;“the first defendant” is Brendan Moloney;“the second defendant” is Brian Moloney, now deceased. (He was the father of the first defendant);“Hampden” is the third defendant, Hampden Park Pty Ltd. (It was controlled by the first and second defendants);“Gortmore” is the fourth defendant, Gortmore Proprietors, and was a partnership comprised of the first, second and fifth defendants;“the fifth defendant” is Helen Moloney, former wife of the first defendant;“the Moloney farm” comprised of three parcels of land which were respectively owned by the first defendant, the second defendant and Hampden. Gortmore conducted a farming business on that land;“the WLA” is the Worker’s Liens Act 1893.Background In the Statement of Claim the plaintiff alleges that he entered into oral contracts:(1)On 28 December 2009 with Gortmore to perform the transportation and repair of farm machinery used by Gortmore (“the first contract”);(2)On 1 February 2010 with Gortmore or the first defendant, the second defendant and/or Hampden to perform various tasks on the Moloney farm (“the second contract”);(3)In or about December 2010 with Gortmore to harvest crops on the Moloney farm.Initially he claimed a total of $659,728[1] for the work done under those three contracts.[1] All sums of money in these Reasons are stated only in terms of dollars and ignore any additional cents. On about 3 February 2011 the plaintiff alleges that he entered into an oral agreement with Gortmore (“the payment agreement”) for the periodic payment of monies owed to him by Gortmore and interest on them. The defendants have not made the payments alleged to be due to the plaintiff and he now claims a total of $727,921. On 31 October 2011 he sent notices of demand under s 10(2) of the WLA to each of the first and second defendants and Hampden for the amounts allegedly due to him for work done on their respective lands under the first, second and third contracts. In the notice of demand to the first defendant he claimed $49,490.13 for lienable work done on his land. In the notice to Hampden he claimed $235,730.55 for lienable work done on its land. The defendants did not pay under those notices of demand. On 31 October 2011 the plaintiff lodged workers liens over the titles of the lands of the first and second defendants and Hampden. On 11 November 2011 the plaintiff commenced this action pleading the matters set out above. In the prayer for relief he only sought judgment for $727,921 plus interest and costs, but he did not expressly seek an order for the enforcement of the liens.Requests for notices of cessation Sections 15 to 18 of the WLA provide:15—Liens to cease in certain eventsEvery lien under this Act upon the estate or interest of any owner or occupier shall cease unless an action shall be brought against the owner or occupier for enforcement of the lien within fourteen days from the registration thereof.16—Satisfaction of lien to be recordedThe Registrar-General upon payment of the prescribed fee and proof to his satisfaction that any person who has registered a lien has failed in an action to enforce the same, or that no such action has been brought by him against the owner or occupier within fourteen days from registration or having been so brought has been discontinued without an order of the court giving further time to bring a fresh action to enforce the lien, which order the court is empowered to make, or that any claim made or judgment obtained against the owner or occupier has been satisfied by payment or otherwise, or in any case where the owner or occupier shall have deposited with the Registrar-General the amount claimed in respect of the lien, either in discharge of such lien or to abide the event of an action to enforce the same, or to recover the amount so deposited, shall make on the proper folium of the Register Book if the lien is registered there or otherwise on the notice of lien a memorandum that the lien has ceased, and upon such entry the lands affected by such notice shall be discharged from the lien.17—Proceedings to compel Registrar-General to record lien in event of refusalIf the Registrar-General shall refuse to make the memorandum that any lien has ceased, the owner or occupier may apply to a judge of the Supreme Court or District Court or a magistrate in a summary manner to direct the Registrar-General to make such memorandum, and notice of such application shall be given by posting the same in a registered letter two clear days at least before such application shall be heard to the person who has given the notice of the lien to his address mentioned in such notice, and he shall be entitled to be heard on the application.18—Judge or magistrate may make orderUpon the hearing of such application the judge or magistrate may make such order in respect thereof as shall be just and the Registrar-General shall obey such order, and the costs of and incidental to such application shall be in the discretion of the judge or magistrate.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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