Marriott Industries Pty Ltd v Mercantile Credits Ltd

[1991] HCATrans 258

----~s'

•

IN THE HIGH COURT OF AUSTRALIAS

Office of the Registry

Adelaide No A14 of 1991

B e t w e e n -

MARRIOTT INDUSTRIES PTY LTD

Applicant

and

MERCANTILE CREDITS LTD

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

TOOHEY J

Marriott 5/9/91

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 5 SEPTEMBER 1991, AT 10.27 AM

Copyright in the High Court of Australia

MR R.L. HUNTER, QC: In this matter, if the Court pleases, I

appear with my learned friend, MR P.A. McNAMARA,

for the applicant. (instructed by Thomson

Simmons)

MR O.J. ELEBY, QC:  May it please the Court, I appear with

my learned friend, MR S.T. LANE, for the

respondent. (instructed by Fisher

Jefferies)

BRENNAN J: Yes, Mr Hunter.

MR HUNTER: If Your Honours please, the applicant was

successful before His Honour Mr Justice Prior in

proceedings which were brought to enforce the lien

under the Workmen's Liens Act of 1893 and the
decision was overturned by a unanimous decision of

the Full Court of South Australia. The decision

was one which was in conflict with a decision of

the Full Court of the Northern Territory and was in

conflict, indeed, with the reasoning of the Full

Court of South Australia, and earlier decisions of

that court.

The application for special leave is based on

the public interest point of the need for the

judicial intervention of this Court to resolve

conflicting decisions of the Full Courts of the

States of South Australia and the Northern

Territory.

The legislation that is the subject of the

proceedings is legislation that is in force in

identical provisions in South Australia and the

Northern Territory. There is an Act which covers

substantially the same ground in force in the State

of Queensland. However, it has some distinctive

features which do not make it entirely comparable

with the subject sections which have been involved

in these proceedings.

Your Honours, some supplementary material was

filed yesterday. It is entitled an index. There

is no other frontispiece to it. In that is a fresh

draft notice of appeal which appears at pages 51 to

53.      The main differences from that which was filed

with the appeal book is that paragraph (c), in

paragraph 2, subparagraph (c) is new, and there has

been omitted the old paragraph 2.3 which related -

the old paragraph which I will identify in a

moment - - -

DEANE J:  A rather hopeless point about agency has been

omitted.

MR HUNTER:	Yes, the point about agency has been dropped.
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MR HUNTER:	A little belatedly, and not without some

reluctance, but it has been dropped. So far as the

unjust enrichment basis is concerned, that is not

pressed as an independent basis for an application
for special leave. If the applicant is not

successful on the lien point, then it does not

press the unjust enrichment. That would only be

sought to be preserved if the applicant is

point and it would be simply run then as a companion to the lien point on the basis that the	successful in obtaining special leave on the lien aid of a lien under section 5 which was not effective or enforceable by reason of technical
shortcomings in registration under section 10.

DEANE J:  Mr Hunter, has the question been canvassed below

as to whether the Workmen's Lien Act precludes the

existence of an equitable lien under general

principle and, if it does not, whether such a lien

would arise by reason of unjust enrichment

principles in this case?

MR HUNTER:  I am not aware whether that was argued. My

understanding was that it was not but - that is

confirmed, Your Honour.

BRENNAN J:  We need to be concerned solely with the

construction of the Act, is that the position?

MR HUNTER:  Yes. And if I could paraphrase what the Full

Court has done, it is essentially this:

Mr Justice Olsson has virtually, if I may be

forgiven for putting it as crudely as this, counted
heads and followed a line of reasoning of single

judges of the Supreme Court of South Australia

where the court has construed section 10 of the Act

to require notice under section 10(2) in order to

give effect to registration under section 10(1) and

to give any enforceability to a lien created under

section 5.

The Chief Justice M,r Justice King approached

it this way: if I could ask Your Honours to go to

section S. Section 5 creates the lien and what

His Honour the Chief Justice has said is that the lien that section 5 creates is an inchoate lien.
His Honour then goes to section 10 and looks at

section 10(1) in this way: what His Honour does, in

our submission, he restructures section 10, and

His Honour does it in this way.	He reads the
words:

A lien under this Act with regard to land

shall be available only if -

Marriott 3 5/9/91

as applying to the words that follow, starting on

the third line, the:

price in respect of which such lien has arisen

shall for the purposes of this section have

become due.

Applying the introductory words of subsection (1)

in that way, His Honour then says that

subsection (1) creates two conditions precedent to

enforceability. One is that there shall have

become due for the purpose of this section a lien,

and the second condition is the registration within

28 days, but then His Honour reads the words "for

the purposes of this section" as equating to
"within the meaning of subsection (2)", for His

Honour then moves to subsection (2), which is the

deeming provision, and treats that as a

definitional subsection. Having done that, His

Honour's reasoning concludes that subsection (2)(a)

notice, leaving aside the (2)(b) occurrences,

subsection (2)(a) notice is a condition precedent

to the operation of a lien under section 10(1).

His Honour then goes to subsection (4) which

permits registration of a lien in respect of a

price which has become payable, even though the time in subsection (2), which can only refer to

(2)(a), "shall not have commenced to run". Now,

His Honour says of subsection (4) that whilst that

permits registration under subsection (1), that

way in which he has construed section 10(1) as requiring notice under (2)(a) because His Honour

still requires the giving of a notice under (2)(a).

says that the expression "shall have become due"

under subsection (1) is something different in

status of the price from having "accrued due" under
section 5, which creates the lien, and it is

different from the price being payable which is

assumed in (2)(a) itself.

So His Honour has, as it were, a hierarchy of

status of price. It is accrued due, and it is not

entirely clear how His Honour, in my respectful

submission, treats that expression, other than
being due, but certainly due as against payable.

Then due and payable under the meaning of (2)(a), and then a third status of having become due under

subsection (1). And it is only in those

circumstances you can have a valid or effective

registration.

His Honour recognizes that having construed section 10(1) and (2) in that way, subsection (4)

creates a conundrum because it provides for

registration not after notice but before notice and

Marriott 4 5/9/91

without any notice having been given, because it

applies before any time has commenced to run under

(2)(a). So it applies where there is no notice and

His Honour, as I say, recognizes that the operation

of subsection (4), in the way in which His Honour

has construed section 10(1) results in a redundant

operation of subsection (2). But His Honour just

accepts that as a consequence of His Honour's

construction of the section.

BRENNAN J:  Mr Hunter, the meaning of these rather turgid

phrases is not to be discovered by the light of

natural reasons. Obviously some construction has

to be placed on them and much is to be said for one

construction or another. The construction having

been placed upon these sections by a majority of

the Full Court, what is the reason why this Court

should grant special leave to reconsider that

matter?

MR HUNTER:	In the first place, Your Honour, we put these propositions: one, it is a decision which is in
conflict with the Full Court of the Northern
Territory in respect of identical legislation and
there is call for the judicial intervention of this
Court to resolve that conflict; secondly, in each
of the decisions, both before - - -
DEANE J:	I do not think there would be much call from the

Northern Territory for us to resolve it.

MR HUNTER: Possibly not, Your Honour, but the fact remains

that there is a conflict - - -

DEANE J:  I have presumed that the Act became operative in

the Northern Territory originally as a South

Australian Act, is that so?

MR HUNTER:  It did, and now it has got independent

operation.

DEANE J: It was effectively re-enacted.

MR HUNTER:  Yes, that is so. The second submission we make,

Your Honour, is that - - -

DEANE J: It is an area, Mr Hunter, where the intervention

of this Court to tidy up parts of this legislation

may, in the long run, be inadvisable in that it

could tend to delay the long overdue legislative

review of the whole of the provisions of this Act.

MR HUNTER:  Your Honour, I would put it differently. I

would suggest that the judicial intervention of

this Court may well assist in any review that may

be contemplated of the legislation so far as it is

required.

Marriott 5/9/91

DEANE J: Yes, well if you would like somebody from this

Court to say that the Act reaches scandalous

proportions, you do not have to have an appeal for

that; I will say it for you now, if you like.

BRENNAN J: There will be very little dissent from other

members of the Bench to that proposition.

MR HUNTER:  Be that as it may, Your Honours, in my

submission the reasoning of the Chief Justice in

the proceedings the subject of this application is

a reasoning that, in my submission, creates

considerable difficulty in application and, indeed,

involves a construction of section 10 which has, in

my submission, great difficulties. What His Honour

has done has been to treat a deeming provision in

subsection (2) as a definitional subsection and

His Honour has done that by reason of a

construction of section 10(1) which construes the

words "shall have become due" as requiring some

additional status of a price for the purpose of the

section.

Now, in our submission, the section properly

read, so far as the opening words of the section
are concerned, apply to the registration of the

lien and assumes that at the time that the lien

calls for registration there has been a price that

has become due. What subsection (2)(a) provides is

for a means of establishing a time for the purpose
of section 10(1) against which time can be measured
for the registration of the lien. It does no more

than that. It assumes a continuing obligation to

pay a due and payable price, but provides a

machinery for the creation of time against which

time can be measured under section 10(1).

Now, in the same way under section 10(1) the

parties themselves can provide for a continuing

payable price to become due within the meaning of

that section by either their contractual

arrangements or by notice, and that there is no

warrant for precluding from section 10(1) the

capacity of the parties by notice to create a time

in respect of the continuing payable price against

which the time for registration can be measured.

They are my submissions, if Your Honours

please.

BRENNAN J: Court will adjourn briefly to consider what

course it should next take.

AT 10.47 AM SHORT ADJOURNMENT

Marriott	6	5/9/91
UPON RESUMING AT 11.03 AM:

BRENNAN J:  We need not trouble you, Mr Bleby.

This application for special leave is founded on a particular construction placed upon sections

of the Workmen's Liens Act 1893, South Australia,
by the Full Court of the Supreme Court of South

Australia. That Act is generally acknowledged to

raise extreme difficulties of interpretation and a

grant of special leave is not likely to lead to the

elucidation of any general principles. The

interpretation of such an Act is largely a matter

of judicial impression.

While we are conscious of the force of

Mr Hunter's submissions, based on differing

impressions of the Act expressed in South Australia

on the one hand and in the Northern Territory on

the other, we do not think the differences in the
interpretation of Acts drawn as the Workmen's Liens

Act, have been drawn, warrant the intervention of

this Court.

Accordingly, special leave will be refused.

MR BLEBY:  I ask for costs, if the Court pleases.

BRENNAN J: Is there anything you can say about that,

Mr Hunter?

MR HUNTER:  No, Your Honour.

BRENNAN J: It will be refused with costs.

AT 11.05 AM THE MATTER WAS ADJOURNED SINE DIE

Marriott 7 5/9/91