Ginos & Associates Ltd v Accordent Pty Ltd & Anor No. Scgrg-98-815 Judgment No. S7023

[1998] SASC 7023

GINOS & ASSOCIATES PTY LTD V ACCORDENT PTY LTD & ANOR

Full Court: Prior, Lander & Wicks JJ

PRIOR J. I agree with the reasons given by Lander J. The Master was correct. The appeal should be dismissed.
LANDER J. This is an appeal from a decision of a Master of the Court where he ordered that the registration of a lien lodged at the Lands Title Office be cancelled.
The appellant carries on business as a consulting engineer. The first respondent, Accordent Pty Ltd, is the owner of land situate at 432 North East Road, Windsor Gardens. The second respondent, SCF Pty Ltd, carries on the business of a project manager. The first respondent and the second respondent agreed, in a written contract dated 11 August 1997, that the second respondent would perform certain building work for and on behalf of the first respondent at the premises at Windsor Gardens. The second respondent entered into a written sub contract dated 12 November 1997 with the appellant whereby the appellant agreed to carry out certain of those works and supply certain materials in connection with the work which it undertook for the second respondent.
The appellant claims that by 4 June 1998, the second respondent owed it the sum of $731134.
On 4 June 1998, the appellant served written notice of demand on the second respondent seeking the sum of $731134. In that notice the appellant claimed a statutory lien on the estate or interest of the first respondent in the land at Windsor Gardens. On the same day the appellant lodged a notice of lien with the Registrar General at the General Registry Office pursuant to the provisions of the Workers Liens Act 1893, whereby the appellant claimed a lien against the estate and interest of the first respondent in the land in respect of the sum demanded.
In the notice of demand the appellant also claimed a charge under the Workers Liens Act on any contract moneys payable by the first respondent to the second respondent to the extent of the amount payable.
The appellant brought these proceedings on 17 June 1998 (within the time prescribed under the Workers Liens Act) and in these proceedings has claimed the following.
“(a) as against the second defendant the said sum namely $731,134.00;
(b).... a charge against any contract monies payable by the first defendant to the second defendant to the extent of the said sum;
(c)an order to enforce the said charge;
(d).... a Lien against the estate and interest of the first defendant in the said land;
(e)an order to enforce the said Lien;
(f).... interest on the said sum pursuant to the Sub-Contract or at a commercial rate or pursuant to the Rules of Court;
(g)costs.”
Both respondents have filed a defence to the appellant’s statement of claim and both have pleaded in that defence that the sum demanded on 4 June 1998 had not, by that date, accrued. Both claim that, as a result, the appellant is not entitled to maintain a claim of a lien pursuant to s5 of the Workers Liens Act 1893.
On 12 August 1998, the first respondent filed an application seeking the following relief:
“1..... That the whole of the Statement of Claim against the first defendant be struck out;
2.That the first defendant have summary judgment against the plaintiff;
3...... That the registration of the Notice of Lien numbered 8499728 lodged at the Lands Titles Office on 4 June 1998 be cancelled;
4.That the first defendant have the costs of and incidental to this application and action;
5...... That this application be made specially returnable; and
6.Such further or other orders as this Honourable Court deems fit.”
The application was supported by an affidavit of Mr Steve Christodoulou, who is a project manager and the managing director of the second respondent, and an affidavit of Sotirios Portellos, who is the managing director of the first respondent. The appellant relied upon an affidavit Zisis Ginos sworn on 16 September 1998. In due course it was only that part of the application in which the first respondent sought the cancellation of the registration of the notice lien which proceeded before the Master.
Before the hearing the appellant sought to cross examine the deponents to the affidavits relied upon by the first respondent but that application was refused. The application was later abandoned.
The parties proceeded before the Master upon the evidence contained in the three affidavits and neither party sought to supplement that evidence or to challenge the evidence contained in the various affidavits.
The point before the Master and on appeal is a short one. It was accepted by all parties that the appellant was not entitled to maintain the lien upon the premises at Windsor Gardens unless the sum of $731,134 or some lesser sum had accrued to the appellant.
A worker’s lien, of course, is a statutory lien provided for in the Workers Liens Act 1893.
Section 5 of that Act provides:
“5..... 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.”
Section 5 has been the subject of judicial determination: Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd (1990) 159 LSJS 414 (Mullighan J); (1991) 160 LSJS 270 (Full Court, King CJ, Mohr and Olsson JJ).
That case concerned a building contract which provided for certification of progress claims, variations and practical completion by an architect. A dispute arose as to whether or not any amount was due by the owner to the contractor and, in particular, whether any amount was due at the time of the notice of claim and notice of demand of payment were made pursuant to the Workers Liens Act.
At first instance, Mullighan J determined that there had been a certificate issued but the effect of the certificate was that no amounts were payable. He held that in those circumstances no amount had accrued due within the meaning of s5 and therefore no right to a worker’s lien ever arose. He further concluded that s10 of the Act did not deem a sum payable which was otherwise certified not to be payable. Section 10, he held, operated to deem a sum of money otherwise payable at a certain time. It did not make the sum payable in the first instance.
The matter went to the Full Court which affirmed the decision at first instance. That Court proceeded upon the common ground that there was no progress certificate issued to cover the amount claimed or any part thereof in the notice of demand.
In respect of s5, King CJ said:
“The contract price or part thereof accrues due when the right of the contractor or sub-contractor to the contract price or part thereof arises under the terms of the contract under which the work was done or the materials supplied. The contract under which he performs the work or supplies the materials is the source of the entitlement of the contractor or sub-contractor. The apparent distinction made in the statute between “due” and “payable” seems to imply that the price or part thereof may accrue due although the time for payment has not yet accrued, but an amount can only be said to have accrued due when work has been done and materials supplied and all other pre-conditions of entitlement stipulated by the contract have been satisfied. There must be a present debt even though under the terms of the contract the time for payment may not have arrived.”
Later speaking of s10 of the Act, his Honour said:
“The notice under section 10(2)(a) cannot be given until the amount claimed is payable. An amount is payable only when it must be paid, that is to say when it is due under the contract and the time for payment has arrived. An amount which is not due at the date of the notice or is not payable until a future date is not payable at the date of the notice. To say that an amount is payable in the future is simply to say, elliptically, that it is not yet payable but will or might become so in the future; Metropolitan Brick Company v Hayward and Another supra per Napier J. at 466. It follows that the concept of becoming due for the purpose of section 10 is a different concept from that of accruing due under section 5; Albert Del Fabro Pty Ltd v Wilckens & Burnside Pty Ltd (Receiver and Manager Appointed) and Arndale (Marion) Pty Ltd 1970 S.A.S.R. 277 at 284. It also follows that a contract price or part thereof cannot “become due” under section 10 until it has first “accrued due” under section 5. I cannot subscribe to the view that a notice under section 10 can alter the contractual relations of the parties to the extent that a party becomes liable, by force of the notice, to pay an amount which he is not at the time liable to pay under the terms of the contract. There is nothing in the statutory provisions to suggest that so drastic an interference with contractual rights and liabilities was intended.
I apprehend the relationship of the sections under discussion and the scheme of the Act with respect to liens to be as follows.
It seems to me that a contractor’s or sub-contractor’s lien can only arise when the lienor’s title to the debt has accrued under the terms of his contract (section 5), although it may arise notwithstanding that the debt, having arisen, is payable in the future. The extent of the lien is limited by section 6 to the amount due and presently payable by the owner or occupier under the contract for the purpose of which the work was done or the materials supplied. In a situation in which a lien which has arisen because an amount has accrued due under the contract, but there is no amount presently payable by the owner or occupier, the lien is dormant until an amount becomes so payable.
Although a lien has arisen by reason of the contract price or part thereof having accrued due under the terms of the contract, it is not available, that is to say not capable of enforcement or valid as a security, until it has “become due” for the purpose of section 10. That will occur if one or other of the events enumerated in section 10(2)(b) has occurred, or if the price is unpaid for seven days after notice has been given under section 10(2)(a). That notice can only be given validly after the price is payable, that is to say after the entitlement has arisen under the contract, thereby bringing the lien into existence, and the time for payment has arrived. The lien, if it has acquired a valid existence by reason of the price having accrued due, may be registered pursuant to section 10(4) prior to the section 10(2)(a) notice, but the action to enforce it cannot be commenced until the lien is “available” under section 10(1).
It follows from what I have said that the appellant had a valid lien only if at the time of registration it was entitled to some part of the contract price under the terms of its contract with the respondent. If it was not so entitled, the giving of the purported section 10(2)(a) notice can not provide a foundation for the lien.”
On this appeal there was no challenge to the correctness of Longreef Pty Ltd v Leighton Contractors (South Australia) Pty Ltd nor, in my opinion, could there have been.
It follows from the decision of the Full Court that it is to the contract that regard must be had to determine whether or not the contract price or any part of the contract price has become due. If it has become due then provided one of the events in s10 has occurred then the contractor, sub contractor or worker is entitled to a lien. But if no amount has become due under the contract then there is no present entitlement to a lien.
There was no dispute in this case whether any of the events in s10 had occurred. The notice of demand given on 4 June 1998 would have satisfied the conditions of s10. The question and the only question in this case was whether the contract price or any part of it had accrued due at the time the notice of demand was given. The answer to that question is obviously in the contract itself.
The contract between the second respondent and the appellant incorporated within it Conditions of Engagement which the parties agreed would form part of the agreement. The contract also included within it details of agreement, specifications, drawings and an undertaking.
The agreement was said to be an entire agreement between the parties. The Conditions of Engagement provide for the appointment of an Administrator who is defined to mean:
“... the administrator of this Agreement and is the person, partnership or corporation named in item 1 of Annexure B or any other person, partnership or corporation appointed as the administrator pursuant to clause 10.7 hereof and includes persons who have been authorised by the administrator to act on the administrator’s behalf.”
The administrator named in Annexure B is Steven Christodoulou who is also the managing director of the second respondent, and of course the deponent to the affidavit relied upon by the first respondent. As I have already mentioned, his evidence was not challenged.
The contract sum is defined in the conditions of agreement and Annexure B to be $1.2 million. The date for practical completion was said to be 16 February 1998.
The Conditions of Engagement provided for the appellant to procure and pay for the construction of the works and the provision and performance of the services in accordance with the provisions of the agreement.
Paragraph 10.1 of the Conditions of Engagement provides that the administrator would act for and on behalf of the second respondent as its agent. The second respondent and the appellant expressly agreed as to the authority of the administrator and in particular the parties agreed that the administrator would act as the assessor, valuer or certifier in respect of a number of matters.
Paragraph 10.2.2 provides:
“10.2.2..... That the Administrator is hereby authorized to act as the assessor, valuer or certifier in respect of the following matters:-
(a)the proper execution and completion of the Works;
(b)............. quality of materials and workmanship and, if applicable, certain associated costs;
(c)defects to be made good;
(d)............. extensions of time;
(e)extensions of or reductions of time for Variations;
(f)............. Practical Completion;
(g)progress certificates;
(h)............. damages, costs and expenses resulting from the delay in the progress of the Works;
(i)liquidated and ascertained damages;
(j).............. valuation of Variations;
(k)patent royalties or damages;
(l).............. expenses of postponement of work and from the discovery of minerals and antiquities; and
(m)final and semi-final certificates.”
The contract provides that there should be no extension to the date for practical completion unless the stage of the works to the stage of practical completion is delayed by any of the events set out in cl13.2 of the contract. The contract provides for the machinery for extending the time for practical completion.
Clause 14 of the contract provides for payment and adjustments of the contract sum. In so far as it is relevant cl14 provides:
“14    Payment and Adjustment of Contract Sum
14.1          Progress Claims
Once each month and on the date as stated in Item 14(a) of Annexure B (or when that day is a Saturday, Sunday, statutory or public holiday, the day before or next following that date which itself is not a Saturday, Sunday, statutory or public holiday), Ginos shall submit to the Administrator a claim for a progress payment showing:-
14.1.1....... Ginos’ valuation of work executed, including Variations completed or partly completed;
14.1.2Ginos’ valuation of any unfixed materials and/or goods intended for and delivered on or adjacent to the Works or to which subclause 14.4.2 hereof applies and which in either case is included in such claim;
14.1.3....... the amount and particulars of any adjustments to the Contract Sum in terms of this Agreement;
14.1.4the amount which SCF may be entitled to retain at that time pursuant to Clause 14.23 hereof;
14.1.5....... the total amount previously certified pursuant to Clause 14.2 hereof;
14.1.6the total amount previously paid or in terms of this Agreement deemed to have been paid to Ginos;
14.1.7the amount then claimed by Ginos;
14.1.8....... the amounts included in Ginos’ valuation under subclauses 14.1 and 14.2 hereof in respect of any nominated contractor and/or supplier and, where the Administrator has so required, the amount in respect of each section or trade heading designated in the Specification together with Variations included in the claim;
14.1.9unless previously provided, evidence as required under subclause 14.9.2 hereof, if applicable, that all amounts included in previous progress payments to Ginos in respect of any nominated contractors and/or suppliers and Ginos’ servants agents and contractors and then due for payment have been paid or otherwise discharged; and
14.1.10..... if so requested by the Administrator, a statement signed by Ginos that all wages due to his employees in connection with the Works have been paid.
With each such claim or part thereof Ginos shall furnish to the Administrator particulars showing al adjustments to the Contract Sum as have been made pursuant to this Agreement up to the date on which the particular claim is submitted but since submission by Ginos of any immediately preceding progress claim.
14.2          Progress Certificates
.................. The Administrator shall within the period stated in Item 14(b) of Annexure B otherwise within ten (10) days of receipt of a progress claim made in accordance with Clause 14.1 hereof:-
.................. 14.2.1       Assess:-
(a)the value of work executed, including Variations completed or partly completed;
(b)the contract value of unfixed materials and/or goods intended for an delivered on or adjacent to the Works or to which subclause 14.4.2 hereof applies;
(c)expenses of complying with Administrator’s instructions as to the postponement of work as referred to in Clause 14.28 hereof; and
14.2.2determine the amounts of any other adjustments to the Contract Sum in terms of this Agreement; and
14.2.3....... issue of a progress certificate to Ginos showing:-
(a)the Administrator’s assessment in accordance with subclause 14.2.1 hereof;
(b)the amounts of any other adjustments to the Contract Sum as referred to in subclause 14.2.2 hereof;
(c)the amount which SCF may be entitled to retain at that time pursuant to Clause 14.19 hereof;
(d)the total amount previously certified pursuant to this Clause 14.2; and
(e)the amount certified as then being due for payment to Ginos by SCF.
With each progress certificate the Administrator shall furnish to Ginos particulars of any amount which SCF is entitled to deduct pursuant to Clause 14.13 hereof.
14.3Differences Between Claims and Certificates
Should the amount of any progress certificate issued by the Administrator pursuant to Clause 14.2 hereof differ from the amount claimed by Ginos under Clause 14.1 hereof the Administrator shall at the time of issue of such certificate provide to Ginos in writing particulars of that difference.
14.4 ...
14.5 ...
14.6 ...
14.7 Progress Payments
.................. On Ginos presenting to SCF any progress certificate issued under either of Clauses 14.2 and 14.6 hereof, Ginos shall be paid by SCF the amount specified by that certificate within the period stated in Item 15 of Annexure B. Notwithstanding the foregoing provisions of this Clause 14.7 and of any other provisions of this Agreement, if the legislation of the State or Territory in which the Site is situated or this Agreement requires Ginos to provide evidence of payment of wages due to his employees on the Works on or before payment of any amount due to Ginos, SCF shall not be obliged nor liable to pay the amount specified in any progress certificate unless and until Ginos complies with such legislation or requirement of this Agreement.
14.8 Failure to Issue or Pay Progress Certificates
.................. Should the Administrator fail to issue a progress certificate to Ginos according to and within the period stated in Clause 14.2 hereof or should SCF fail to pay to Ginos the amount of any progress certificate as provided in Clause 14.7 hereof, Ginos shall be entitled to interest at the rate stated in Item 16(a) of Annexure B on the amount to which Ginos was entitled from fifteen (15) day (sic) after the date upon which the payment was required to be made pursuant to clause 14.7 hereof until the date of payment of the same to Ginos by SCF.
14.9 Recovery of Damages for Delays
14.9.1Subject to compliance with all of the provisions of Clause 14.10 hereof Ginos shall be entitled to recover from SCF damages sustained and incurred by Ginos as a result of an act, omission or default by Accordent, SCF or the Administrator or any of their servants, agents or contractors which prevents the completion of the works by the Date for Practical Completion or causes the Works to be not completed by the Date for Practical Completion, provided that the prevention or cause was beyond the control of Ginos and Ginos has taken all reasonable steps to mitigate the effect of any such prevention or cause.
14.9.2....... Except as provided by subclause 14.9.1 hereof, Ginos shall not be entitled to recover from SCF any damages or costs associated with any delay in the provision and/or performance of any of the Services or the construction of the Works.

14.10Conditions Precedent
........... The entitlement of Ginos to recovery of damages or reimbursement of any costs and expenses incurred by it as a result of a delay in the provision and/or performance of the Services or a delay in the construction of the Works, shall be subject to compliance with all of the following conditions:-
14.10.1an extension of time has been made or should properly have been allowed pursuant to Clause 13.3 hereof;
14.10.2.. Ginos has taken all practicable steps to keep any such damages, costs and expenses to a minimum;
14.10.3any such damages, costs and expenses have not been and should not be included in the value of any Variation;
14.10.4.. Ginos has given to the Administrator details in writing of the nature of the claim under Clause 14.9 hereof as soon as practicable after commencement of the delay giving rise to the claim and at a time when those details are capable of being adequately checked by the Administrator, such details being given progressively where necessary; and
14.10.5Ginos has within a reasonable time of an extension of time being allowed under Clause 13.3 hereof given to the Administrator written details substantiating any such damages, costs and expenses and the actual or closely estimated amounts therefor.
14.11...
14.12Liquidated and Ascertained Damages
........... If Ginos shall fail to procure that the Works have reached the stage of Practical Completion by the Date for Practical Completion:-
14.12.1The Administrator may give notice in writing to Ginos and to SCF that in his opinion the Works ought reasonably to have been brought to Practical Completion at some earlier date to be stated in that notice, not being earlier than the Date for Practical Completion.
14.12.2.. If such notice is given, Ginos shall pay or allow to SCF a sum calculated and certified by the Administrator at the rate stated in Item 17 of Annexure B as liquidated and ascertained damages for the period (commencing from the date so stated) during which the works shall remain or have remained not brought to Practical Completion.
14.12.3In the event of no further moneys being payable to Ginos or in the event of the sum calculated in accordance with paragraph exceeding the amount remaining payable by SCF to Ginos, SCF shall be entitled to recover the same, or any such excess, as a debt due to SCF by Ginos and may deduct the same from any payments to be made to Ginos pursuant to this Agreement.
14.13Provisional Withholding of Damages
........... Should the Date for Practical Completion have passed without the Works having been brought to Practical Completion then prior to giving notice under the provisions of subclause 14.12.1 hereof, the Administrator may notify in writing Ginos and SCF accordingly. Thereafter, when issuing any progress certificate, the Administrator may issue with it a provisional assessment in writing on the amount then provisionally due by way of liquidated and ascertained damages and SCF may, provided it shall have given to Ginos at least five (5) working days written notice of his intention so to do, deduct such amount from the amount certified in the particular progress certificate. Any amount so deducted shall be taken in partial satisfaction of the indebtedness of Ginos to SCF for the amount subsequently certified under subclause 14.12.2.”

The Conditions of Engagement provide that the appellant can, no more than once each month, submit to the administrator a claim for a progress payment showing the various matters set out in clause 14.1. That claim includes the amount then claimed by the appellant which will include claims for moneys due for work performed in accordance with the contract and claims for variations allowed, again in accordance with the contract.
The administrator shall, within either ten or thirteen days, depending upon whether or not the administrator is acting in accordance with Annexure B of receipt of the claim made by the appellant, assess the value of the work, determine the amounts of any other adjustments to the contract sum and issue a progress certificate to the appellant which shall include all of the matters in 14.2.3. The administrator has the obligation, when issuing any certificate, to give particulars of any difference between the amount certified and the amount claimed.
It can be seen from the clauses which I have included in these reasons that the ascertainment of any amount outstanding requires a consideration of other matters apart from the matter simply provided for in the claim. For example, liquidated damages may be deducted in accordance with cl14.12 and a provisional withholding of damages may occur in accordance with cl14.13. The valuation of the variations may also give rise to a dispute.
It is clear enough that the machinery in cl14 allows the administrator to consider not only the claim which has been submitted by the appellant, but also any other matter which might give rise to a set off against the amount claimed under cl14.1.
Clause 14.10 provides, as a condition precedent, the satisfaction of the various matters referred to in the clause before the appellant is entitled to the recovery of damages or reimbursement of any costs and expenses incurred by the appellant as a result of delay in the provision and/or performance of the services or a delay in the construction of the works.
In any event, when any progress certificate is issued, the appellant is entitled to the amount specified in the certificate within a period of seven days, being the time stated in item 15 of Annexure B.
Clause 14.8 provides for the circumstances where the administrator fails to issue a progress certificate or the second respondent fails to pay the appellant the amount of any progress certificate. In those circumstances the appellant immediately becomes entitled to interest at the rate of 2 per cent above the rate charged by the Commonwealth Bank for overdrafts of $100,000 on the amount to which the appellant was entitled from a period fifteen days after the date upon which the payment was required to be made until the date of payment.
That clause, in my opinion, is clear enough. In the event that the administrator fails in his obligations, or the second respondent fails to pay in accordance with the administrator’s certificate, then the appellant becomes entitled to interest in the terms which I have set out.
The clause, contrary to the argument put by the appellant, does not, in my opinion, deem the amount of the claim payable. Mr Mark Rice, who appeared for the appellant, argued that the effect of cl14.8 is to provide that, in the event of default by the administrator in his obligations, or SCF in payment, then the amount of the claim submitted by the appellant immediately became due and payable.
I do not agree with that argument. I do not think cl14.8 deems the amount claimed to be payable by reason of the default of the administrator or the second respondent. The clause provides no more than the machinery under which interest becomes payable.
The clauses which I have set out in these reasons show that the issue of a certificate by the administrator is simply not the endorsement of a claim. The amount of a claim may differ widely from that eventually certified. The administrator, in the issuing of a certificate, has to take into account a number of matters which may not be provided for in the claim.
In this case, the appellant submitted its claim on 3 June 1998 and gave a notice of demand on 4 June 1998.
In his affidavit Mr Christodoulou said:
“19... ... I disagree that as at 3 June 1998 the sum claimed was either “owed”, or had “accrued due”, to Ginos pursuant to the terms of the Agreement. As at 3 June 1998 I had not even had an opportunity to consider PC9, and I was not required to do so prior to the Notice of Demand being served, or the Lien being registered. Plainly, I had not issued a progress certificate at that time in respect of that freshly served progress claim, and accordingly no monies had been certified by me as having accrued due to Ginos in respect of PC9.”
Whilst part of that evidence would be inadmissible there was no challenge to the assertions of fact made in that paragraph.
In my opinion, at the time that the notice of demand was given no amount had accrued due under the contract price. In those circumstances the appellant was not entitled to a lien under s5 of the Act.
The appellant argued, however, that notwithstanding the provisions of the contract, the parties had agreed by conduct to waiving certificates from the administrator.
I do not agree with that argument which, in my opinion, is not supported by the facts. It is true, as the appellant has pointed out, that from time to time certificates have been purportedly issued by persons other than the administrator. Some certificates have been issued on the letterhead of FDP Project Services under the hand of Corine McKenzie. Two are on the letterhead of Raine and Horne, Project Management but signed by FDP Project Services and one undersigned by Corine McKenzie, the other by the Administrator himself. The certificates have, contrary to the procedure provided for in the Act, also provided for the inclusion of a cheque in the amount of the claim so certified.
I think the parties have agreed by their conduct to accept a certificate signed by persons apparently associated with the administrator rather than the administrator himself. It is not clear from the evidence the form of association between those parties and the administrator, but it is tolerably clear that they are acting on the instruction of the administrator. In those circumstances they probably come within the definition of administrator.
The Administrator said, in his evidence, which again was not subject to challenge:
“11... During the period 24 November 1997 to 4 May 1998 Ginos submitted progress claims numbered 1 to 8 in accordance with the requisite contractual procedures. Now produced and shown to me as a bundle marked “SC3” are true copies of the said progress claims.
12.During the period 12 December 1997 to 25 May 1998 I issued progress certificates no. 1 to 6 in accordance with the requisite contractual procedures, and SCF duly paid the monies due and payable to Ginos pursuant to those progress certificates. Now produced and shown to me as a bundle marked “SC4” are true copies of the said progress certificates.”
The certificates to which the Administrator is there referring are the certificates on the letterhead of FDP Project Services signed by Corine McKenzie and on the letterhead of Raine and Horne Project Management, one of which was signed by Corine McKenzie, the other by the Administrator.
In any event, in my opinion, the parties by conduct have only agreed that they will accept as between themselves a certificate signed by a person other than the administrator. The parties have not accepted or agreed by their conduct to the waiver of the provision of a certificate under cl14.
In my opinion there is no evidence to support the suggestion that any part of the contract sum had become due to the appellant at the time of the notice of demand.
It follows that the appellant was not entitled to a lien and the Master’s decision was correct.
I would dismiss the appeal.
WICKS J. I agree with the order proposed by Lander J for the reasons he gives.

[1998] SASC 7023

23 December 1998