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Core-Form P/L v Pajo Projects P/L

Core-Form P/L v Pajo Projects P/L

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Case Copied 29 June 2020 54 min read

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CORE-FORM P/L v PAJO PROJECTS P/L & ANOR
[2020] SADC 80
Reasons for Decision of Her Honour Judge Schammer
29 June 2020
INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR STATUTES - WORKMEN'S LIENS - ENFORCEMENT
REAL PROPERTY - TORRENS TITLE - CAVEATS AGAINST DEALINGS - REMOVAL - OTHER MATTERS
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT
Core-Form Pty Ltd (applicant) carries on work as a building work contractor.
Joseph Sommariva (second respondent) is the holder of a builder’s licence and the sole director of Pajo Projects Pty Ltd (first respondent).
The first respondent is the registered proprietor of a 40% interest in land comprised in Certificate of Title Register Book Volume 6119 Folio 314 (land). 250 East Pty Ltd (250 East) is the registered proprietor of a 60% interest in the land.
In or about May 2017, the first respondent as developer and the second respondent as builder, entered into a contract to develop and build a multiplex apartment complex on the land. In performance of that contract, the second respondent entered into sub-contracts with the applicant to carry out building works on the land. The applicant claims that invoices it issued to the second respondent, pursuant to those sub-contracts, remain outstanding.
On 25 March 2020, the applicant, by its solicitors, purported to serve the respondents with a Notice of Demand under s 10(2) of the Worker’s Liens Act 1893 (SA) (Act) (Demand) and a Notice of Charge under s 7(3) of the Act (Charge), by email sent to the respondents’ solicitors. On that same day, the applicant, by its solicitors, lodged, for registration, a worker’s lien over the land in respect of the outstanding contract price. The Lien was registered on 27 March 2020. The Demand and the Charge were personally served on the respondents on 1 April 2020. Proceedings were issued to enforce the Lien and the Charge on 8 April 2020.
By application dated 25 May 2020 (FDN 4) made pursuant to s 32 of the Act, the respondents seek orders, inter alia, cancelling the Lien, directing the Registrar-General forthwith to remove the Lien from the Certificate of Title and setting aside the Charge.
The respondents contend that the Lien is invalid on one or any of the following grounds:
1. That the part owner of the land, 250 East, had never been served with the Lien, the Demand or any other document or process.
2. The Lien is not available (unenforceable) as the outstanding contract price had not ‘become due’ at the time the proceedings were issued, as it had not remained unpaid for seven days after the Demand ‘was given to the person liable to pay the same’ or posted in accordance with s 10(2)(a) of the Act.
3. The Demand was the second notice of demand for the purposes of s 10(2)(a) of the Act, in that a previous notice of demand had…

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.

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Details

Case: [2020] SADC 80
Decision Date: 29 June 2020

CaseChat Overview and Summary

Core-Form P/L brought proceedings against Pajo Projects P/L in the South Australian Supreme Court. The matter pertained to the enforcement of a workmen's lien under the Workmen's Liens Act 1936 (SA), as well as the removal of a caveat entered by Core-Form P/L against dealings with property owned by Pajo Projects P/L. Core-Form P/L alleged that Pajo Projects P/L had failed to pay for work completed on a property, resulting in the imposition of a lien. Subsequently, Core-Form P/L entered a caveat to prevent the property from being dealt with until the debt was satisfied. The legal issues before the court were whether Core-Form P/L was entitled to enforce the lien and whether the caveat should be removed.

The court examined the provisions of the Workmen's Liens Act 1936 (SA) and found that Core-Form P/L had indeed established a valid lien as it had completed work on the property and had not been paid. The court further considered the circumstances under which a caveat could be removed, noting that it could be lifted if it was no longer necessary or if it had been entered without proper cause. Given that Core-Form P/L had a valid lien and had not been paid, the court held that the caveat was necessary and should not be removed. However, the court ordered that Core-Form P/L must take reasonable steps to mitigate any prejudice caused to Pajo Projects P/L by the continued existence of the caveat.

In summary, the court determined that Core-Form P/L was entitled to enforce its workmen's lien and that the caveat should remain in place. The court ordered Core-Form P/L to take reasonable steps to mitigate any prejudice caused to Pajo Projects P/L by the continued existence of the caveat. The court did not order the removal of the caveat but emphasised the need for Core-Form P/L to act reasonably in its enforcement of the lien.

Orders