Excelsior Land Holdings Pty Ltd v Alan Sheppard Constructions Pty Ltd
[2011] SASC 25
•25 February 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal: Civil)
EXCELSIOR LAND HOLDINGS PTY LTD & ORS v ALAN SHEPPARD CONSTRUCTIONS PTY LTD
[2011] SASC 25
Judgment of The Honourable Justice White
25 February 2011
INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR STATUTES - WORKMEN'S LIENS - ENFORCEMENT
INDUSTRIAL LAW - SOUTH AUSTRALIA - REGULATION OF PARTICULAR MATTERS UNDER PARTICULAR STATUTES - WORKMEN'S LIENS - ENTITLEMENT TO
The respondent contracted with the third appellant to construct retirement units on the first appellant's land. Following the third appellant's alleged failure to make payment for the completed work the respondent sent a notice of demand, signed by its solicitor, to the third appellant and registered a lien under the Worker's Lien Act 1983 (SA) ('WLA') at the Land Titles Office. The lien was defective. The respondent sought to correct the defect by sending a second notice of demand, now signed by the directors of the respondent, and sought to register a second lien at the Land and Titles Office. Acting under s 191(k) of the Real Property Act 1889, the Registrar-General refused to register the second lien because the respondent had not first obtained the permission of the Court to do so. The respondent then sought permission from the District Court to register the second lien.
A District Court Judge held that the Court had the power under s 191(k) of the Real Property Act 1889 (SA) to grant permission to the respondent to lodge a further notice of lien, and considered it just for that permission to be granted.
Appellant appealed against this decision.
Whether a court may authorise a person to register a second notice of lien at the Land Titles Office and whether it was just for that permission to be given in the circumstances of this case.
Held: Dismissing the appeal - A worker's lien comes into existence in the circumstances specified in ss 5 and 6 of the WLA, but is enforceable only if registered within the time stipulated in s 10(1) and (2), and an action for its enforcement commenced within the time stipulated in s 15. Section 191(k) of the Real Property Act 1889 (SA) does permit a court to authorise the lodgement of a second lien - first notice of demand not valid under s 10(1) of the WLA as not signed by the respondent - second notice of lien sought to be registered in time.
Worker's Liens Act 1893 (SA) s 5, s 10, s 12, s 15; Real Property Act 1889 (SA) s 3, s 191, referred to.
Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288; Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd (2007) 99 SASR 502; Metropolitan Brick Company v Hayward [1938] SASR 462; Albert Del Fabbro Pty Ltd v Wilckens & Burnside Pty Ltd [1971] SASR 121; Longreef Pty Ltd v Leighton Contractors (SA) Pty Ltd (1991) 160 LSJS 270; David Grant & Co Pty Ltd v Westpact Banking Corporation (1995) 184 CLR 265; McRae v Coulton (1986) 7 NSWLR 644; Deputy Commissioner of Taxation (Vic) v Boxhall (1988) 19 FCR 435; Vincent v Johnstone Shire Council [1997] 1 Qd R 554; Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567, considered.
EXCELSIOR LAND HOLDINGS PTY LTD & ORS v ALAN SHEPPARD CONSTRUCTIONS PTY LTD
[2011] SASC 25Miscellaneous Appeal
WHITE J. The principal question on this appeal is whether a court may authorise a person to lodge a second lien under the Worker’s Liens Act 1893 (SA) (WLA) when the first lapsed because of the lienee’s failure to commence within time the action to enforce it.
There are subsidiary questions. If the Court does have the power, was it properly exercised in this case? If it does not have the power, the respondent’s notice of alternative contention raises the questions of whether a court can extend the time within which an action to enforce a lien may be commenced and, at the same time, make orders varying the first lien?
A District Court Judge held that as a notice of lien is deemed to be a caveat, s 191(k) of the Real Property Act 1889 (SA) (RPA) empowers a court to authorise the lodgement of a second lien, and that the justice of the present case made it proper to exercise that power in the lienor’s favour.
The appellants appeal against that decision. Strictly speaking, it is only the first appellant who was affected by the Judge’s order and is entitled to appeal, but nothing turns on that presently.
In my opinion, the Judge was correct and the appeal should be dismissed. My reasons for that conclusion follow.
Factual Background
Sheppard Constructions, the respondent to the appeal, entered into two building contracts with Excelsior Land Management Pty Ltd (the third appellant). They required Sheppard Constructions to construct three retirement units on the land of Excelsior Land Holdings Pty Ltd (the first appellant) at Woodcroft, being the land comprised in Certificate of Title Register Book Volume 5914 Folio 170 (Title One) and some apartments on the land of Estate Land Holdings Pty Ltd (the second appellant) being the land comprised in Certificate of Title Register Book Volume 5979 Folio 598 (Title Two).
Sheppard Constructions contends that it has carried out the work required of it under each contract but has not yet been paid all of each of the respective contract prices.
On 25 February 2010, Sheppard Constructions’ solicitors sent a letter to Excelsior Land Holdings and Excelsior Land Management demanding payment of the sum of $1,127,422.81. As I understand it, this was in relation to the work carried out on both titles. It will be necessary to refer to the terms of this letter later in these reasons.
As Sheppard Constructions did not receive payment, on 5 March 2010 it lodged a notice of lien under the WLA in the Lands Title Office (LTO). On its face, the notice asserted a lien on the interest of Excelsior Land Holdings in two titles, being Title One and the land in Certificate of Title Register Book Volume 5952 Folio 170 (Title Three) for the sum of $1,127,422.81. I will refer to this notice as the first lien.
The first lien was inapt in at least two respects: Sheppard Constructions had not carried out any work at all on Title Three, and the amount claimed in respect of Title One should have been $501,898.81 (although I note that in its amended statement of claim Sheppard Constructions asserts an entitlement to $529,830.07).
As I understand it, the Registrar-General registered this notice of lien on each of the certificates of title relating to Title One and Title Three.
Section 15 of the WLA requires an action to enforce a worker’s lien to be brought within 14 days of the registration of the lien. It provides:
Every 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.
The first lien indicated that Sheppard Constructions would bring proceedings in the District Court. However it did not commence such an action. The Judge accepted that this was because the solicitors for Sheppard Constructions recognised the deficiencies in the first lien and considered it appropriate, in effect, to start over again.
Accordingly, Sheppard Constructions sent notices to each of Excelsior Land Holdings and Excelsior Land Management dated 29 March 2010 demanding payment of $501,898.81 in respect of its work on Title One. On the same day it sent notices to each of Estate Land Holdings and Excelsior Land Management demanding payment of $643,220.15 in respect of its work on Title Two.
Subsequently, on 9 April 2010, Sheppard Constructions lodged at the LTO a notice of lien for the sum of $643,220.15 in respect of Title Two. As I understand it, the Registrar-General registered this lien, which I will refer to as the “second lien”. Although the evidence about this is unclear, it seems that the Registrar-General refused to permit Sheppard Constructions to withdraw the first lien on Title One and to lodge a second lien for the sum of $501,898.81 on that title. It seems that the Registrar-General considered that the combined effect of s 12 of the WLA and s 191(k) of the RPA meant that Sheppard Constructions could lodge a further lien on Title One only if it had first obtained the permission of the Court.[1]
[1] The “Court” is defined in s 3(1) of the RPA to include, in relation to s 191, the District Court.
Section 12 of the WLA deems a notice of lien in respect of land to be a caveat:
12— Notice to be deemed caveat
A notice lodged in respect of land under the provisions of the Real Property Act shall be deemed to be a caveat forbidding the registration of any dealing with the estate or interest sought to be affected by the lien, unless such dealing shall be expressed to be subject to the claim of the person lodging the notice, and the provisions of the Real Property Act relating to caveats shall, so far as applicable and so far as consistent with this Act, apply to every such notice.
Section 191(k) of the RPA prevents a caveator from lodging a further caveat “relating to the same matter” without the permission of the Court. It provides:
(k) Not to lodge further caveat without permission
it shall not be lawful for any caveator other than the Registrar-General, or for anyone acting on behalf of such caveator, to lodge a further caveat relating to the same matter without the permission of the Court;
Faced with this difficulty, Sheppard Constructions commenced proceedings in the District Court against the three appellants on 22 April 2010. It sought judgment against Excelsior Land Management for the total sum of $1,145,118.90, an order against Excelsior Land Holdings enforcing in respect of Title One the first lien lodged on 5 March 2010, and an order against Estate Land Management enforcing the second lien lodged on 8 April 2010 in respect of Title Two.
At the same time, Sheppard Constructions issued an interlocutory injunction seeking an extension of time within which to enforce the first lien over Titles One and Two (presumably an extension of time within which to commence the District Court proceedings to enforce that lien); permission to amend the first lien by amending the sum to which it related to $501,898.81; and by deleting the reference to the Title Three and, in the alternative, the permission of the Court to lodge a further lien over Title One.
It is not at all clear that the relief sought by Sheppard Constructions in this application could appropriately be granted on an interlocutory application, but no point has been taken by either party about that, or about the present appeal being heard by a single judge of this Court.
The District Court Judge held that the District Court had power under s 191(k) to grant permission to an applicant to lodge a further notice of lien, and considered it just for that permission to be granted to Sheppard Constructions. On that basis, the Judge considered it unnecessary to consider the other forms of relief sought by Sheppard Constructions.
The Appeal
On the appeal, the appellants argued, in effect, that although a lien is deemed to be a caveat, s 191(k) did not, at least in the circumstances of the present case, empower the Court to grant permission for a further notice of lien under the WLA to be lodged.
It was not altogether easy to identify the basis of the appellants’ submissions concerning the absence of power. Although not articulated quite in this way, the argument seemed to be along the following lines: by s 5 of the WLA, Sheppard Constructions may have had a lien over the interest of Excelsior Land Holdings in Title One in respect of the unpaid contract price; by s 10(1) of the WLA that lien was available only if registered within 28 days of the unpaid contract price becoming due; by s 15 of the WLA the lien ceased if the enforcement action was not brought within 14 days; no such action having been commenced, such lien as Sheppard Constructions may have had ceased on 19 March 2010; having ceased, the lien was no longer available at all; and accordingly s 191(k) should not be understood as authorising the Court to permit the lodgement of a notice of lien which was non-existent.
Alternatively (again the argument was not put quite in this way), the submission seemed to be that even if the Court did have the power, it should not, for much the same reasons, grant permission to Sheppard Constructions because the lodgement at the LTO of a second notice of lien could not serve any practical purpose.
The Notice of Alternative Contention
In addition to supporting the decision of the District Court Judge, Sheppard Constructions contended by a notice of alternative contention, that it was also entitled to an extension of time in which to enforce the first lien (that lodged on 5 March 2010 over Titles One and Three) and to the amendment of the first lien in the way which it had sought in its interlocutory summons.
Permission to Register a Further Lien
The appellants’ submissions concerning the Court’s power to grant permission for the lodgement of a further lien were really based on an asserted lack of utility in that course. Although counsel did not refer expressly to the words in s 12 that the provisions of the RPA relating to caveats apply to notices of lien “so far as applicable and so far as consistent with this Act”, the submission seemed to be that the absence of utility meant that s 191(k) could not be applied sensibly in relation to notices of lien.
In order to address that submission, it is necessary to have regard to the way in which a lien under the WLA comes into existence.
Sheppard Constructions relies on ss 5 and 6 of the WLA for its lien. They provide as follows:
5— Lien of contractor or sub-contractor
A contractor or sub-contractor shall have a lien for the contract price, so far as accrued due, on the estate or interest in land of any owner or occupier in each of the following cases:
(a) Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon:
(b) Where the materials are, with the assent, express or implied, of the owner or occupier, used or intended to be used in or about work done, or intended to be done, to the land or to any fixture thereon.
6— Extent of lien
Liens under subsection (1) of section 4 or under section 5 shall not, in cases other than those of workers employed by the owner or occupier, extend beyond that portion of the contract price payable by the owner or occupier under the contract for the purposes of which the work or materials are done, furnished, or manufactured and unpaid at the time when the owner or occupier shall receive notice of the lien or of its registration, whichever shall first happen, nor extend at all to cases where there is no such contract binding the owner or occupier to pay a contract price.
Sheppard Constructions asserts that it performed work on the land subject to Title One with the consent of Excelsior Land Holdings and, accordingly, that by virtue of ss 5 and 6, it has a lien for the unpaid contract price.
Section 10 of the WLA is also important in relation to the enforcement of a lien:
10— Lien to be registered
(1) A lien under this Act with regard to land shall be available only if registered before the expiration of twenty-eight days after the wages or contract price in respect of which such lien has arisen shall for the purposes of this section have become due.
(2) Any wages or contract price shall for the purposes of this section be deemed to have become due—
(a)if unpaid for seven days after the same (being payable) shall have been demanded by notice in writing, signed by the person claiming the same and given to the person liable to pay the same, or posted in a registered letter addressed to him at his usual or last known place of abode in South Australia:
(b)if either before or after the same shall have become payable, the person liable to pay the same shall have called a meeting of his creditors, or committed an act of bankruptcy, or executed a deed of assignment within the meaning of the Bankruptcy Act 1924 of the Commonwealth, or shall have taken or attempted to take the benefit of any law relating to bankrupts or insolvent debtors, or shall have suffered his goods to be taken in execution or seized under legal process or distress for rent.
(3) A lien shall be registered by the person claiming the same lodging in the General Registry Office a notice in the prescribed form and accompanied by the prescribed fee, which notice shall be signed by such person and attested.
(4) A lien may be registered after the wages or contract price have become payable, although the seven days mentioned in subsection (2) shall not have commenced to run.
(5) Notices of lien under this Act shall state the court in which action will be brought to enforce the same, and any person to whom notice is given may deposit the amount claimed in such court to abide the event of such action, and thereupon the lien shall be deemed to cease.
It can be seen that s 10(1) stipulates that a worker’s lien with respect to land is “available” only if it is registered within 28 days of the contract price becoming due. Section 10(2) identifies the time when, for the purposes of s 10, the contract price is deemed to have become due: seven days after the lienor has been given a notice of demand in accordance with s 10(2)(a). The effect of s 10(2) is that, absent an event of insolvency of the kind contemplated by s 10(2)(b), a lien over land under the WLA is not available unless a demand in writing has been given in accordance with s 10(2)(a) to the person liable to pay the outstanding contract price.[2] The combined effect of s 10(1) and (2) is that a lienee has a maximum of 35 days in which to register a lien over land once the monies claimed have become due.
[2] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS 288 at 292-4 (King CJ); 308-10 (Olsson J); Badge Constructions (SA) Pty Ltd v Rule Chambers Pty Ltd [2007] SASC 417 at [95]-[97]; (2007) 99 SASR 502 at 527-8.
The question of whether a lien under the WLA comes into existence only upon registration at the LTO, or has some existence prior to registration has been the subject of conflicting authorities. The better view appears to be that a worker’s lien has an existence independent of its registration at the LTO and that the effect of s 10(1) of the WLA is to make the registration of the lien within the 35 day period a condition of its enforcement. That is to say the words “shall be available only if” in s 10(1) mean “shall be enforceable only if”.[3]
[3] Marriott Industries Pty Ltd v Mercantile Credits Ltd (1991) 160 LSJS at 292 (King CJ)
In Metropolitan Brick Company v Hayward[4] Napier J described the lien and the right to enforce it as being:
… separate and distinct, in the sense that the lien is capable of lying dormant, while there is nothing payable by the owner under his contract, and becoming enforceable whenever money becomes payable. In order to be enforceable the lien has to be registered under sec 10, and an action to enforce it must be commenced within 14 days from registration (sec 15). …[5]
[4] [1938] SASR 462.
[5] Ibid at 467-8.
Zelling J in Albert Del Fabbro Pty Ltd v Wilckens & Burnside Pty Ltd[6] identified three indications in the WLA that a lien has an existence independent of its registration. First, the provision in s 6(1) limiting the amount of the lien to the amount of the unpaid contract price at the time when the owner or occupier receives “notice” of the lien or of its registration, “whichever shall first happen” indicates that a lien has a separate existence prior to its registration.[7] Secondly, s 10(4) permits a lien to be registered after the contract price has become payable although the seven days mentioned in s 10(2) has not yet commenced to run.[8] Thirdly, as under s 12 a lien operates as a caveat, a claimant must have a lien which amounts to an interest in land before registering the lien.[9]
[6] [1971] SASR 121.
[7] Ibid at 138.
[8] Ibid.
[9] Ibid.
In Pitt Ltd v The Corporation of the Town of Glenelg,[10] Richards J expressed a similar view, saying:
Sec. 10, in Part II, also assumes the existence of a lien before it is registered, where it provides that a lien shall be “available” only if registered before the expiration of the prescribed time after the contract price in respect of which such lien “has arisen” shall have become due. Indeed, wherever the Act speaks of registration, it seems to contemplate the right called a lien as existing independently of registration, although registration is a pre-requisite to the enforcement of the right; and it speaks of notice “of lien”, not notice of a “claim to a lien”.[11]
[10] (1927) SASR 501.
[11] Ibid at 515.
Similarly, in Marriott Industries v Mercantile Credits,[12] King CJ described the lien under s 5 arising:
“… when the contract price or part thereof has accrued due under the contract. That occurs, in my opinion, when work has been done or material supplied and when, in addition, all conditions precedent to the contractor’s entitlement to the monies claimed have been satisfied”.[13]
[12] (1991) 160 LSJS 288 at 292.
[13] Ibid at 292. This view of when a lien comes into existence is also expressed in “The Law of Securities”, Sykes and Walker, 5th edn, 1993 Law Book Company at 213.
Finally, in Marriott Industries v Mercantile Credits[14] and Longreef Pty Ltd v Leighton Contractors (SA) Pty Ltd[15] Olsson J, with whom Mohr J agreed, held that s 10 constitutes an exclusive code identifying the circumstances in which a lien may be enforced.[16]
[14] (1991) 160 LSJS 288 at 292.
[15] (1991) 160 LSJS 270.
[16] Mariott Industries at 310; Longreef at 281.
Accordingly I proceed on the basis that in a case of the present kind a lien under the WLA comes into existence in the circumstances specified in ss 5 and 6 but is enforceable only if it has been registered at the LTO in accordance with s 10, and an action to enforce the lien commenced within 14 days of that registration (s 15).
As a lien is enforceable only if registered within 35 days of the contract price becoming due in the manner contemplated by s 10(1) and (2), there would be no point to the lodgement of a second notice of lien in respect of the same contract price more than 35 days after that price did become due. Such a lien could not be enforced and would immediately have to be withdrawn or removed.
This means that if s 191(k) of the RPA does permit a court to authorise a second lien being lodged, that power may, in a practical sense, be able to be exercised in only a limited range of circumstances. However, the fact that the circumstances in which the power may be exercised may be limited does not, of itself, deny the existence of the power. It is not difficult to imagine at least some circumstances in which an exercise of the power may be appropriate, eg, when a properly lodged lien is (within the 35 day period) withdrawn as a result of mistake or fraud, or when the lien suffers from some underlying defect which the lienee, within the period of 35 days, seeks to have corrected.
I cannot discern any other consideration arising from the nature of a lien, or from the circumstances in which a lien arises, which would require s 191(k) of the RPA to be construed as not applying to liens. Courts should not readily find any such restriction to exist. I refer in this respect to the observation of Gummow J in David Grant & Co Pty Ltd v Westpac Banking Corporation:[17]
As a general precept, it is inappropriate to read provisions which confer jurisdiction or grant powers to a court by the making of implications or imposition of limitations not found in the express words of the legislative provision.[18]
Accordingly I am satisfied that the District Court does have power in an appropriate case to permit the lodgement of a second lien “relating to the same matter”.
[17] [1995] HCA 43; (1995) 184 CLR 265.
[18] Ibid at 275-6.
The Grant of Permission
The Judge considered that the justice of the present case favoured the grant of permission. He accepted that Sheppard Constructions’ solicitors had not commenced proceedings to enforce the first lien because of the deficiencies which they perceived in it; that the lodgement of the second lien was necessary to rectify the position; that Sheppard Constructions had acted promptly and would be prejudiced by the loss of security if the second lien was not authorised; and the appellants had not demonstrated any prejudice to them, over and above the inconvenience of Title One continuing to be subject to a lien.
I agree with the Judge’s assessment of those matters.
However, there is the utility of the grant of permission to be considered. On 9 April 2010, when Sheppard Constructions attempted to lodge the second lien, more than 35 days had elapsed since 25 February 2010 when its solicitors sent the letter of demand to Excelsior Land Management and Excelsior Land Holdings. Thus, if the letter of demand of 25 February was a valid notice for the purposes of s 10(2)(a), the lodgement of the second lien on 8 April 2010 could not satisfy the condition for the enforcement of the lien specified in s 10(1).
However, in my opinion, the solicitor’s letter of demand of 25 February 2010 did not satisfy the requirements of a notice of written demand for the purposes of s 10(2)(a), and accordingly did not set running the 35 day period contemplated by s 10(1) and (2). The substantive portions of the letter were as follows:
We are acting for Alan Sheppard Constructions Pty Ltd of 403 Glen Osmond Road, Glen Osmond.
We have been instructed to demand payment of the sum of $1,127,422.81 being payment due for work done, material supplied and interest to 25 February 2010 in respect of land at Pimpala Road, Woodcroft SA 5162.
Unless this amount is paid to us within seven (7) days from the date hereof proceedings will be instituted to recover the same.
Yours faithfully
DUNCAN BASHEER HANNON
There followed the name of a particular solicitor within the firm of Duncan Basheer Hannon and that solicitor’s signature.
It is to be noted that the letter was signed by Sheppard Constructions’ solicitors, and not by any of its officers. Sheppard Constructions did not execute the notice in any of the ways contemplated by s 127 of the Corporations Act 2001 (Cth) or, for that matter, in the manner contemplated by s 270 of the RPA.
On its face, s 10(2)(a) requires the notice of demand to which it refers to be signed by the person claiming the unpaid wages or contract price. There is, however, the well established common law principle that, in the absence of an express or implied indication to the contrary, legislation requiring the “signature” of a document by a particular person is not to be taken to preclude signature by an agent. See for example McRae v Coulton;[19] Deputy Commissioner of Taxation (Vic) v Boxshall[20] Vincent v Johnstone Shire Council;[21] and Commonwealth Bank of Australia v Muirhead.[22]
[19] (1986) 7 NSWLR 644 at 663-4.
[20] (1988) 19 FCR 435 at 438.
[21] [1997] 1 Qd R 554 at 556-7.
[22] [1997] 1 Qd R 567 at 572.
In my opinion, the WLA does indicate sufficiently that the personal signature of the lienee is required on a notice of demand under s 10(2)(a). In the case of an incorporated body, that entity must execute the notice of demand in the manner contemplated by s 127 of the Corporations Act or in any other manner contemplated by its constitution.
The indications that s 10(2)(a) requires the personal signature of the lienee are these. First, as already noted, s 10 is in the nature of a code of the necessary matters for the enforceability of a lien. Each of its provisions should be given effect as elements of the code.
Secondly, the delivery of a demand is an important element in the code for the enforcement of the lien under ss 5 and 6 and in the identification of the amount of the contract price to which the lien can relate. That suggests that a degree of formality is to be expected.
Thirdly, s 10(2)(a) does not, as do some statutory provisions,[23] contemplate signature by a lienee or the lienee’s agent or solicitor. If the legislature had intended that signature by an agent would be sufficient, it could easily have said so.
[23] See eg Law of Property Act 1936 (SA) s 29; Limitation of Actions Act 1936 (SA) s 33; Landlord and Tenant Act 1936 (SA) s 22.
Fourthly, s 10(3) of the WLA requires the notice of lien to be registered at the LTO to be both signed and attested by the lienee. The more formal requirement for attestation is understandable because the notice is a formal document to be registered at the LTO. However, in combination, the requirement for signature in s 10(2)(a) and for signature and attestation in s 10(3) serve to indicate the requirement in the WLA for proper authentication of the documents relating to the enforcement of liens on land.
Fifthly, the requirement for the signature of the lienee in s 10(2)(a) in relation to liens on land contrasts with the provisions in the WLA concerning the enforcement of liens on goods. Section 19, which specifies the way in which a notice of demand in relation to a lien over goods should be given, does not contain any requirement for signature. This serves to underline the requirement in s 10(20(a) that it be the lienee’s own signature.
Counsel for the appellants accepted that in order to be a valid demand for the purposes of s 10(2)(a), the demand should be signed by the lienee personally.
As the notice of demand of 25 February 2010 was not signed by Sheppard Constructions (ie, executed by the company in the way contemplated by s 127 of the Corporations Act 2001 (Cth) or in any other authorised manner) I consider that it was not effective as a notice of demand for the purposes of s 10(2)(a) of the WLA. That being so, it was not effective to cause the 35-day period contemplated by s 10(1) and (2) to run. The notice of 25 February 2010 can accordingly be ignored when considering the utility of the grant of permission to lodge a second notice of lien.
Sheppard Constructions did attempt to lodge the second lien within 35 days of the notice sent to Excelsior Land Holdings and Excelsior Land Management on 29 March 2010. Accordingly, there is utility in the grant of permission for the lodgement of that lien.
I do not regard it as material that permission was not granted and the second lien not formally registered on Title One within the 35 days which commenced to run as a result of the notices sent by Sheppard Constructions on 29 March 2010. Sheppard Constructions had registered the notice of lien by lodging it at the LTO. The provisions of the WLA have to be understood as operating in a practical way. They are not to be frustrated because a lienee may not be able to obtain a court order within the 35 day period, at least when the lienee has commenced in time proceedings seeking the appropriate relief.[24] Section 23 of the WLA authorises a court to make such order in relation to the enforcement of a lien as may be just. An order under s 191(k) in relation to a summons filed, and a notice of lien lodged at the LTO, within the 35 day period would appear to be such an order.
[24] Cf Director of Public Prosecutions v George [2008] SASC 33 at [250]-[251]; (2008) 102 SASR 246 at 296-7; Tedesco v Director of Public Prosecutions [2010] SASC 336 at [14].
Further, s 64 of the RPA appears to empower a court to make orders, even after the expiry of the 35 day period, to restore the parties to the position which they would have been in had the Court been able to hear and determine Sheppard Constructions’ application within the 35 day period.
Conclusion
For these reasons, I consider that the decision of the District Court Judge was correct. It is accordingly not necessary to consider the interesting issues raised by Sheppard Constructions’ notice of alternative contention.
I dismiss the appeal.
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