ADVANCED CIVIL ENGINEERING PTY LTD v WYARA PTY LTD

Supreme Court of the Northern Territory of Australia Asche J.
29 May 1986 and 25 June 1986

Practice & Procedure - Application to strike out so much of Indorsement on Writ as relates to enforcement of a lien under the Workmen's Lien Act 1893 - Two earlier notices of lien lodged and one lien registered and "ceased" prior to lien now relied on - Present lien identical - Whether earlier notices void for non compliance with provisions of the Act - Whether Court should act on interlocutory summons to strike out indorsement where facts and law require detailed analysis to ascertain whether proceedings "vexatious" or oppressive
Contract - Issue of progress certificates by Superintendent of the contract - when such certificates "issued" - Meaning of "due" and "payable"

workmens Lien Act 1893-1896 - Provisions for registration of lien - Time when lien comes into existence - Procedures to be followed - Effect of registration - Meaning of "accrued due", ins. 5 and "become due" and "payable" ins. 10

Case followed:

Blythe Green & Jordain (Trading) Pty Ltd v Sienna Pty Ltd Rice J. (unrep.) 26/3/86

Cases applied:

Pitt Limited & Others v The Corporation of the Town of Glenelg (1927) S.A.S.R. 501
Millers Lime Limited v Royal Agricultural & Horticultural
Society of S.A. (1936) S.A.S.R. 306
Metropolitan Brick Company v Hayward & Another (1938)
S.A.S.R. 462
Del Fabro v Wilckens  &  Burnside (1970) S.A.S.R. 277 Albert Del Fabro v Wilckens & Burnside (1971) S.A.S.R. 121 Birchall constructions Pty Ltd v Jape Nominees & Another (unrep.) (Gallop J. - 19/3/82)
Stapleton v F.T.S. O'Donnell Griffin & Co (1961) 108 C.L.R.
106

Cases referred to:

Koon Wing Tan v Calwell (1949) 80 C.L.R. 533
Central Piggery Co. Ltd v McNicoll (1949) 78 C.L.R. 594 Levy v Abercorris Slate & Slab Company (1887) 37 Ch. D. 260 A-G v Birkbank (1884) 12 Q.B.D. 605
Brown v I.R.C. (1900) 84 L.T. 71
Baring v I R.C. (1898) 1 Q.B. 78
Glen v Fulham Overseers (1884) 14 Q.B.D. 328
Chong v Fairfield Municipal Council (1968) 89 W.N. (N.S.W.) 194
McBeth v Buchanan (1889) 7 N.Z.L.R. 731
Hernaman v Coryton (1850) 19 L.J. Ex 353
Re Stockton Malleable Iron Co (1875) 2 Ch. D. 101 McKenna v City Life Assurance Company (1919) 2 K.B. 491
Deputy Federal Commissioner of Taxation v Patricia Peacock
& Others (1980) 80 A.T.C. 4415
Mack v Commissioner of Stamp Duties (N.S.W.) (1920) 28
C.L.R. 373
Barry v Heider (1914) 10 C.L.R. 197
Dey v Victorian Railways Commissioners 78 C.L.R. 62 General Steel Industries Inc v Commissioner for Railways
N.S.W. 112 C.L.R. 125

Counsel for the Plaintiff Solicitors for the Plaintiff

Counsel for the Defendant Solicitors for the Defendant

Mr D. Mildren Q.C. Mildren Silvester &
Partners
Mr T.I. Pauling Q.C. Poveys

asc860054a

asc860054
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 275 of 1986

BETWEEN:

ADVANCED CIVIL ENGINEERING PTY LTD
Plaintiff

AND:

WYARA PTY LTD
Defendant

CORAM:	Asche J.

REASONS FOR JUDGMENT
(Delivered the 25th day of June 1986)

This is an interlocutory summons dated 21 May 1986 to strike out so much of the plaintiff's indorsement of claim as relates to a claim for a workmen's lien and to order the plaintiff to remove from certain land of the defendant a workmen's lien placed on the said land on 7 April 1986.

The plaintiff and the defendant are both companies duly incorporat d in the Northern Territory.	The plaintiff agreed to do certain work for the defendant on land of which

the defendant was the registered proprietor.	Title to that land is in the defendant's name on various certificates of title.	For the purposes of this case nothing turns on the fact that there is more than one ti•tle, save for one argument by counsel for the plaintiff that if the court were minded to allow the plaintiff any security over the land it could be provided by one title rather than affecting all titles as it presently does.

The date of the contract between the plaintiff and the defendant does not appear in the material before me, but its existence is not disputed.	The contract was, inter alia, governed by the "General Conditions of Contract" which are exhibited to the-affidavit of Keith Aitken (a director of the plaintiff) sworn 23 May 1986.	It seems  not  disputed that the plaintiff performed work and received five progress payments totalling $332,074-00.	A letter from the Engineer/Superintendent of the contract to the plaintiff dated 28 January 1986 annexes a "Certificate of Payment" (Certificate No. 6) dated 24 January 1986 and signed by the Superintendent. This records the five earlier progress payments and the amounts previously certified, which total
$332,074, and then certifies for a further payment of
$1,128-39.	Clause 42.1 of the General Conditions of Contract provides that payment of monies due under a progress certificate issued by the Superintendent shall be made to the plaintiff by the defendant within fourteen days

of the issue of the progress certificate.	This sixth progress certificate, (described as a "Certificate of Payment" but clearly a progress certificate within the meaning of clause 42.1) was in my view issued by the Superintendent on 24 January 1986, i.e. the date it was signed by him.	Mr Mildren contends that the date of issue should be the date it was received by the plaintiff, i.e. no earlier than 28 January when the letter containing the certificate was sent by the Superintendent to the plaintiff.

The various definitions of the word "issue" show that there can be contradictory meanings.	The Oxford English Dictionary, for instance, gives the following meanings, (inter alia):-

''To give or send out authoritatively or officially;"

The expressions "give" and ''send out'' can be contradictory. The word "give" connotes the action of giving to or receipt by a person.	The expression "send out" suggests something earlier, something done before a thing is given or received. Similarly the Macquarie Dictionary gives such definitions as "the act of sending, or promulgation; delivery; emission.". (And see Koon Wing Tan v Calwell (1949) 80 C.L.R. 533 at 568 per Latham C.J.).	Once again "the act of sending" can have a connotation and effect different from "delivery".

4

The word can, depending on context, be legitimately used at any point along a time scale which commences with the making or doing of something by one person for another person and ends with the receipt by that other person of what has been made or done.

Mr Mildren, however, submits that the cases suggest that in law the meaning attaches at the end of that time scale i.e. receipt. He cites Koon Wing Tan v Calwell (1949) 80 C.L.R.
533.	In that case the High Court held that the action of an authorised officer in writing out and signing a certificate was not an "issue" or "purported issue" of the certificate within the meaning of s. 4 of the Immigration Act 1949 if the certificate had not been delivered or notified to the person concerned.	But the expression used in the section was, "purported to issue a certificate of exemption
to a person named in the certificate.	The context indicated an action completed by delivery.	See Dixon J. (as he then was) at p. 574 and Williams J. at p. 591.

Similarly Central Piggery Co Ltd v McNicoll (1949) 78 C.L.R.
594 is another case relied on by Mr Mildren because an "issue" of shares was construed as having taken place on communication of acceptance.	But, again, the relevant statute spoke of a share issue of a company "to any of its employees".	Latham C.J. at p. 598 said, "The issue of the shares is the act which ends the transaction and ends in the

issue of shares to a specific person, an employee.	The act of issuing involves a set of proceedings which results in the employee becoming a shareholder".

So in Levy v Abercorris Slate & Slab Company (1887) 37 Ch.
D. 260 at 264 Chitty J. said of a debenture that "It must be 'issued', but 'issued' is not a technical term, it is a mercantile term well understood; 'issue', here means the delivery over by the company to the person who has the charge".

Relying on these cases Mr Mildren submitted that the certificate of progress payment only "issued" when received or, perhaps, made available to the plaintiff.	No doubt he would also rely upon A-G v Birkbank (1884) 12 Q.B.D. 605, where the Bank Charter Act 1844 prohibited the "issue" of notes by bankers and the court held that the word meant "delivery of the notes to persons who are willing to receive them" (p. 609).	See also Brown v Inland Revenue Commissioners (1900) 84 L.T. 71 (per Collins L.J. at 79) dealing with negotiable instruments; Baring v Inland
Revenue Commissioners (1898) 1 Q.B. 78 (per Rigby L.J. at
90-91) dealing with the Stamps Act.

But not all cases suggest that "issue" means delivery. The expression has been held to have crystallised at an earlier time. In Glen v Fulham Overseers (1884) 14 Q.B.D. 328

Stephen J. at 334, speaking of the "issue" of an order under the Metropolis Management Act, said, "The issuing is not sending the order by the clerk to the overseers but it is issuing out of their minds by their own hands and putting the seal on a piece of paper.	Serving the order is one thing and issuing the order is another.".

In Chong v Fairfield Municipal Council (1968) 89 W.N. N.S.W.
194 the question turned upon when the Certificate of determination of the Land and Valuation Court "issued" for the purpose of computing time for appeal.	Else-Mitchell J. held that the Certificate "issued" on the date it was settled and executed.	He rejected as contrary to the tenor of the rules and repugnant to convenience and practice an argument that the "issue" of the certificate was the actual handing out to the party concerned.	(Seep. 197).

In McBeth v Buchanan (1889) 7 N.Z.L.R. 731 Denniston J. had to decide when a summons under the Resident Magistrates Act "issued".	He concluded that "the summons is issued by the person who signs it.	Signing is the only specific act prescribed and as the issuing has to be done by some person who must in some way be individualised, the signing seems to me the only evidence of identification".	(pp. 732-3).

An intermediate course was adopted in Hernaman v Coryton (1850) 19 L.J. Ex 353 at 355 where the court took the view

that the "issue" of a fiat under the then Bankruptcy Act was the putting of the fiat into the post.

These cases establish only that while the verb "issue" may have an accepted meaning in certain areas of law (e.g.
Company Law in relation to shares and debentures) it is otherwise of variable import, and the meaning must be extracted from the context and from common sense.	Taking this approach I have no doubt that the progress certificate of the Superintendent "issued" on the date it was signed by him, namely 24 January 1986.

Clause 42.1 that provides that the contractor shall submit to the Superintendent a detailed statement every month showing the contract value of the work carried out and that "Within twenty one days after the receipt by the Superintendent of such a statement or, if the Contractor fails to submit any such statement, at such time as the Superintendent thinks fit, the Superintendent shall determine the value of the work so carried out and incorporated and issue a progress certificate".	Note that the expression is "issue", not "issue to".	No suggestion is made there that the date of issue shall be the date of delivery or receipt, and nothing in the context requires such an interpretation.	On the contrary the context indicates that the Superintendent's duty is to determine the value of the work carried out.	Once he has done this he

certifies that a certain amount is owing. That is his function and he discharges it by issuing the certificate which he does simply by signing it or otherwise authorising it.	The "issue" is then complete.	Indeed the certificate itself seems to put the matter beyond doubt because, at its foot, appears the signature of the Superintendent and the date 24/1/86; then follow the words "this certificate should be honoured by the Principal in the terms of the contract which requires payment within fourteen (14) days of the date of issue stated above" (my italics).	No doubt it could be argued that this is merely the interpretation which the Superintendent chooses to put on the clause but there is nothing before me to suggest that, until these proceedings, either party ever suggested a different one.

This certificate (the sixth certificate) authorised a payment of $1,128-39 to the plaintiff.	Although it is not a Certificate of Final Payment, the calculations given in this certificate seem to indicate that, after various deductions and prior payments as set out, the final balance owing is that sum of $1128-39.	That is obviously contested by the plaintiff but is not a matter to deal with on this interlocutory application.

On 15 January 1986 the plaintiffs had sent to the Superintendent a letter claiming the balance due under the contract as $110,781-98.	That was received by the

Superintendent on 20 January. On 24 January the plaintiff delivered to the defendant a "Notice of Demand" dated that same day. This Notice reads as follows:-

"	IN THE NORTHERN TERRITORY OF AUSTRALIA THE WORKMEN'S LIEN ACT SECTION 10
NOTICE OF DEMAND

TO: WYARA PTY. LTD. whose registered office is situate at the office of Poveys Lot 2310, The Vic, Smith Street, Darwin N.T. (hereinafter referred to as "the aforesaid debtor")
TAKE NOTICE that ADVANCE CIVIL ENGINEERING PTY LTD whose
registered office is situate at the office of John Feros, 1st Floor, 42 Smith Street, Darwin in the Northern Territory of Australia (hereinafter referred to as 'the aforesaid creditor') HEREBY DEMANDS from the aforesaid debtor the sum of ONE HUNDRED AND TEN THOUSAND SEVEN HUNDRED AND EIGHTY  ONE DOLLARS AND NINETY EIGHT CENTS ($110,781.98) being the
balance outstanding of the sub-contract price for work carried out by the aforesaid creditor at the request of the aforesaid debtor in relation to the following property: Orchard Park Estate, Lot 4556 Dick Ward Drive, Coconut Grove
N.T.
Dated the 24th day of January 1986.

GIVEN under the Common Seal ADVANCE CIVIL ENGINEERING PTY. LTD.
by authority of a resolution the Board of Directors
in the presence of:

A Director and
A Director/Secretary

of	)
)
)
of )
)
)
)
)

)

)
)	....................
Director

....................
Director/Secretary

THIS NOTICE OF DEMAND was prepared by Mildren Silvester & Partners, Barristers & Solicitors, Blackburn Chambers, 7th Floor, Darwin Plaza, 41 The Mall Darwin N.T. Solicitors for
the Creditor.
PMR:MM (8) l"

On 24 January, and after receiving the Notice of Demand referred to earlier, the defendant wrote to the plaintiff's solicitors acknowledging receipt and stating,

"Please note that no payments are due and payable until 14 days after a certificate of payment is issued by the supervising engineers".

This letter was received by the plaintiff's solicitors on 29 January.

On 28 January the plaintiffs received the letter from the Superintendent which contained the sixth progress certificate already mentioned, issued on 24 January and authorising a payment from the defendant to the plaintiff of
$1,128-39.

On 4 February 1986 the plaintiffs lodged at the office of the Registrar-General a "Notice of Lien'' ("the first Notice") dated that day but not registered until 5 February as appears from the Registrar-General's indorsement.	On 6 February the defendant was notified by the Office of the Registrar-General that the lien had been registered.	On 7 February the plaintiff received a cheque for $1,106-39 from the defendant representing the amount due under the progress certificate less tax.	The plaintiff has not presented this cheque for payment.

5 of the Workmens Lien Act 1893 (S.A.) reads as follows:-

"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 -

Where the work is done, with the assent, express or implied, of the owner or occupier to the land or to any fixture thereon: ••• u.

10	reads:-

"10.(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.

Any wages or contract price shall for the purposes of this action be deemed to have become due -

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:

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 insolvency, or executed a deed of assignment within the meaning of 'The Insolvent Act, 1886,' or any other Insolvency Act, or shall have taken or attempted to take the benefit of any law relating to insolvent debtors, or shall have suffered his goods to be taken in execution or seized under legal process or distress for
rent.
A lien shall be registered by the person claiming the same lodging in the General Registry Office a notice in the prescribed form or in a form to a similar effect, which notice shall be signed by such person and attested.
A lien may be registered after the wages or contract price have become payable, although the seven

days mentioned in sub-section (2) shall not have commenced to run.

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.".

The Workrnens Liens Act 1893 of South Australia operates in the Northern Territory by virtue of sections 2 and 3 of the Northern Territory Justice Act (S.A.) 1884 and sections 6(1) and 7 of the Northern Territory Acceptance Act (Commonwealth) 1910-1973 and s. 57 of the Northern Territory (Self-Government Act (Commonwealth) 1978.	It seems, alas, necessary to draw attention to this fact that the Act does exist in the Northern Territory since one notes with some chagrin that the learned author of "The Artificers Lien" (R.D. Elliott - 1967 - Law Book Company) states at page 86: "As this South Australian Act is now unique in Australia it is felt that an examination of its provisions in some detail will be useful to practitioners, students and others
in South Australia and of some general interest to practitioners in other places" (emphasis mine).	This seems a rather tactless dismissal by a one-time legislative parent of its only legislative child.

Reverting however to the situation of the first Notice, and assuming for the moment that it was not a nullity (as Mr Mildren for the reasons I shall examine later contends that

it was) then it was lodged within the time required by s.10(1), i.e. before the expiration of twenty eight days after the contract price had become due as defined bys. 10(2)(a).	The notice pursuant to s.10(2) having been given on 24 January, and the lien being registered on 5 February it was of course well within that time; but upon registration another time factor began to run pursuant to s.
15.	This provides that the lien shall cease "unless an
action shall be brought against the owner or occupier for
enforcement of the lien within 14 days from the registration thereof".	s. 16 then provides, inter alia, that if no such action is brought by the lienor within that time, the
Registrar-General upon proof of that to his satisfaction shall make a memorandum that the lien has ceased and the lands affected are thereby discharged from the lien.

The fourteen days expired on 20 February and within that time no action had been taken by the plaintiff.	By notice dated 21 February (but apparently not filed until 26 February) the defendant asked the Registrar to note the cessation of the lien and this was duly noted that day on the various titles held by the defendant.	See Exhibit "J" to the affidavit of Mr Morris sworn 12 May which shows the indorsements on title.

on 26 February, the plaintiff attempted to register a second lien.	There is some confusion about what occurred and the

only explanation contained in the affidavit of Mr Aitken sworn 29 May, and the.two affidavits of Miss Lim sworn 28 May is hearsay.		What is plain is that those in the Registrar-General's office refused to register or, at least, having gone through the process of noting the lien on the certificates, then ruled out what had been noted.	At no stage was the signature of the Registrar-General or the Deputy Registrar-General affixed to the note so that it never became registered.	See sections 51 and 52 of the Real Property Act.	The second notice was received on 26 February but about half an hour before the receipt of the application for the cessation of lien lodged on the same day.	This appears from the note of times on the indorsements to the Certificate of Title.	So at that time there was already a lien on the title in similar terms save for the date.	No doubt the Registrar-General took the view (rightly as I apprehend) that two liens of that nature could not be registered.

on 28 February the plaintiff issued a Writ (No. 121 of 1986) against the defendant.

By the indorsement to this Writ the plaintiff made alternative claims against the defendant:-

''3.	The Plaintiff's claim is for $110,781.98 being the balnce outstanding from the Defendant to the Plaintiff for work carried out by the Plaintiff for the Defendant in relation to the land known as Orchard Park Estate, Lot 4556 Dick Ward Drive, Coconut Drive, Northern
Territory.

4.	Further and in the alternative the Plaintiff's claim is for the enforcement of a workmen's lien claimed by the Plaintiff over the whole of the land formally known as Lot 4556 Town of Nightcliff and more particularly described in Certificate of Title volume
138 folio 50 now being lots 9155 to 9163 and lots 9189 to 9193 in Land Titles Office plan number 85/65A and lots 9164 to 9176 and lot 9194 in Land Titles Office plan number 85/65B, all of which land is one and the saJT\e land as the land referred to in paragraph 3
above. ".

On 6 March the defendant entered an appearance.

On 24 March the plaintiff made and served a second Notice of Demand on the defendant which was received by the defendant on that day.	This Notice is in the same terms as the earlier Notice of 24 January save that the demand is now for
$111,419-35.	The difference is, presumably, interest;
although that is not stated.

On 7 April the plaintiff made and lodged for registration in the Registrar-General's Office a third Notice of Lien, again in similar terms to the first (and presumably the second) lien save that the amount for which the third notice of lien is claimed is $111,419-35.	This lien was registered on the same day i.e. 7 April.

Writ No. 121 issued on 28 February could not apply to the first notice which had been filed on 5 February and noted by the Registrar as having ceased on 26 February.	Apparently reliance was placed on the second notice prepared by the plaintiff on 26 February and, had that lien had any

operative effect, then Writ No. 121 would have been issued within the fourteen days specified bys. 15 of the Act.	But that lien had been considered by the Registrar inoperative and the indorsement on the Certificate of Title had been struck out.	The plaintiff discovered this on about 3rd March as appears from the affidavit of Mr Aitken sworn 29th May.	On 7th April it lodged the third notice for registration, and on 18th April it filed and served on the defendant a Notice of Discontinuance of Writ No. 121.	By these actions it seems to have accepted the correctness of the Registrar-General's decision to strike out the indorsement relating to the second notice; or at least to have abandoned any rights which it may have had to take action against the Registrar-General to have the second notice recognised as valid and properly registered.

It is noteworthy in this context that, in discontinuing Writ No. 121, the plaintiff did not seek an order from the Court under s. 16 of the Act giving further time to bring a fresh action to enforce the lien.	No doubt.the application would have been fruitless.	The first lien had ceased to have any operati_ve effect and the plaintiff was, in any event, well out of time; and because the Registrar-General had refused to register the second notice there could be no basis for an action because it had not become a "lien" by registration and therefore no action pursuant to s. 15 could be brought for its "enforcement".

So the plaintiff lodged the third notice which was registered on 7 April; and on the same day as it discontinued Writ No. 121 it issued Writ No. 275 i.e. on 18 April.	The indorsement to this Writ and particularly paragraphs 3 and 4 thereof is in similar terms to Writ No.
121 save that the amount claimed is now $111,419-35.

Looked at in isolation from the earlier proceedings the plaintiff had now fulfilled the requirements of the Act.		It had given Notice of Demand for $111,419-35 on 24 March.	If the effect of that was that the contract price claimed by it had "become due" on that date pursuant to s. 10(1) or deemed to have become due seven days thereafter pursuant to s.
10(2) then in either event it had registered a lien on 7 April and within the twenty eight days required by s.10(1) it had followed that with a Writ issued on 18 April, thereby bringing it within the time limited bys. 15.

But the defendant says these things cannot be looked at in isolation.	It says that any rights which the plaintiff had or may have had to register a lien were spent	after the operation of the first lien ceased on 26 February.

It brings this interlocutory summons to strike out paragraph
4 of the indorsement of claim to Writ No. 275 and to have the present lien removed from its certificates of title.	It does not contest the right of the plaintiff to pursue

'	18

paragraph 3 at this stage; for that is the right to seek payment of an amount of monies alleged to be owing under a contract and must wait its proper time for the presentation of evidence and the hearing of the action.	But paragraph 4 which seeks the enforcement of the lien over the plaintiff's land is, so the defendant claims, vexatious and an abuse of the processes of the court and must be struck out now.

The defendant relies particularly on the decision of Rice J. given in this court on 26 March 1986 in the case of Blythe Green &   Jordain (Trading) Pty Ltd v Sienna Pty Ltd.	In that case the plaintiff claimed that it had sold and delivered to
P.H. Concrete Tanks Pty Ltd a quantity of steel to be used as reinforcement in a concrete building in the course of erection on the defendant's land and that the building materials were delivered onto the defendant's land with the express or implied consent of the defendant.	The plaintiff alleged that on or about 20 January 1986 it executed a Memorandum of Lien which was subsequently registered as a Notice of Lien ("the second lien") against the defendant's land.	On 5 February 1986 the plaintiff issued a Writ and Statement of Claim ("the second Writ") claiming, inter alia, "A Workmens Lien to secure payments (sic) of the debt of
$15,882-06 due by P.H. Concrete Tanks Pty Ltd to the plaintiff pursuant to the provisions of the Workmens Liens
Act 1893".

19

The defendant, by interlocutory application, sought to have that part of the indorsement of the Statement of Claim struck out and the lien registered on 24 January removed.
In support of its application the defendant relied upon the fact that on 17 October 1985 the plaintiff had caused to be registered on the same land of the defendant a Notice of Lien (the first lien) to secure the payment of the identical sum of $15,882-06.	That first Lien was subsequently withdrawn and a cessation of lien was registered on 29 November 1985.	Yet on 3 December 1985 the plaintiff had issued	against the defendant a Writ ("the first Writ") containing an indorsement in identical terms as the second Writ insofar as it sought the enforcement of the first lien to secure payment of the identical sum of $15,882-06 against the same land of the defendant.

His Honour, having set out these facts said:-

"In	the light of this history it emerges that the first lien ceased because no action to enforce it had been brought against the owner within fourteen days from the registration thereof as required bys. 15 of the Act.
By its present moves the plaintiff now seeks to start afresh to secure the identical remedy it had previously
sought to obtain".

The submission put to His Honour by the defendant was that once an identical lien had ceased it ceased forever; and neither could it be revived (save by the operation of s.16

which did not apply in the circumstances of the case before His Honour) nor could a second lien relying on the identical subject matter be registered in its place.	His Honour was unable to find direct authority for that proposition but called to aid the remarks of R.D. Elliott in "The Artificers Lien" at page 101.	The learned author there said:-

"	Once a Notice of Lien has been lodged for registration or deposit, the lienee has 14 days within which to commence an action to enforce his lien.	If he does not commence his action within that period the lien ceases.	Once the action for enforcement has been commenced it must not be discontinued without a Court order giving leave to discontinue and to bring a fresh action for its enforcement.	A discontinuance without such an order will cause the lien to become ineffective and unenforceable.	It is suggested that it is not possible, when once a lien has arisen under the Act and has then ceased, to make a fresh demand on the person primarily liable to pay the lienee and then lodge a new Notice of Lien claiming either the same debt or the
same debt plus another amount which has become payable since the first Notice of Lien was lodged.	However a claim for a completely fresh amount which has fallen due and payable to the lienee (even under the same contract)
after the original lien has ceased will be effective, but no amount unpaid under an older Notice of Lien can be tacked on to the amount of the new claim.
A Court has no power to extend the time for bringing an action to enforce a lien.	It can however authorise the discontinuance of an action for enforcement which has been brought within the statutory period, and give a further time to commence a fresh action for enforcement.".

His Honour underlined certain passages in those observations and I have followed the same course to give the emphasis which His Honour wished to give.	His Honour also pointed out, that the term "lienee" there employed should really be

"lienor".	With respect I adopt His Honour's corrections and the authority relied on by him.	(Jessup's Land Titles Office: Forms & Practice, 6th Edition,  by  Maher@  p. 294 and note 2@	p. 295).

His Honour then examined certain authorities (to which I will return) and came to the conclusion that

"it is the clear intendrnent of the Act to enable the creation of one statutory lien only limited in its scope and effect to securing the amount due to the lienor from time to time during the lifetime of-that particular lien; and, once extinguished by the operation of s. 15 it is incapable of resurrection.	Once a lien under that Act "ceases", by force of the Act its rebirth is impossible.		It is only in the case of an action which has been brought within fourteen days from registration and has been discontinued that the Court is empowered to give "further time to bring a fresh action to enforce the lien".	These words ins. 16, to my mind, clearly indicate the limited extent to which fresh proceedings may be brought in which to enforce a lien which is dormant but nonetheless capable of resurrection".
Later in his Judgement Rice J. said:-

"As	Legoe J. said in Palyaris Constructions Pty. Ltd. v Kauri Timber Co. Ltd (1980) 24 S.A.S.R. 41 at p. 53:-

'••. the general scheme of the Workrnens Liens Act is one of imposing strict limitations with respect to time upon the lienor if he is to obtain the special benefits which the Act confers upon him or it.	These strict time limits are clearly expressed in the provisions of the Act, .•.'. ".

To give a claimant a remedy under the Act in the form of a security for the very same amount of his claim after his first lien had ceased by operation of s. 15, would, in my opinion, be tantamount to allowing him to circumvent the strictures of the Act for which no warrant to do so exists.	Taken to its logical extreme, if this were the case; a claimant could effectively fetter the title to land simply by lodging, intermittently, a series of Notices of Lien for the identical amount without ever having commenced an action

to enforce it.	Clearly this was never contemplated by
t e Act and is repugnant to its very purpose; and in the circumstances of the present case I see no good reason for allowing a second Lien to remain on the title"."

Mr Mildren does not seem to question the authority or reasoning of this case.	His submission is that it is distinguishable because the present lien is the only one that ever existed.	His submission is that the earlier liens or notices were null and void or of no effect at all.	To prove this he must point to certain mistakes or omissions made by the plaintiff itself in the preparation and lodging of notices: mistakes or omissions which, Mr Mildren suggests, render the earlier proceedings invalid.	The argument that one can rely upon one's sins in the past to establish virtue in the present has a certain panache about it; but the basis of the submission does require careful examination.

The distinction which Mr Mildren draws between the Blythe Green case and this case is that in the former case the first lien, when registered, was a valid lien insofar as it was supported by a valid or at least arguable claim for materials supplied for work to be done on the defendant's land.	When no action was brought within the time limited by
s. 15, the lien "ceased" within the meaning of that section. Once it had ceased it could not be revived by a second lien vis a vis the same right of action.	But Mr Mildren's submission relating to the first and second notices of lien

in the present case is that since neither had any real basis for existence neither can be said to have "commenced", and a fortiori neither can be said to have "ceased".	To register a lien in these circumstances does not endow with life that which was previously lifeless.

Before turning to Mr Mildren's argument that the iirst and second notices were nullities it is necessary to examine the significance of "accrued due" (section 5) and "become due" (section 10) as those expressions have been interpreted by the case-law, although the cases have not always been consistent.	From the authorities (admittedly somewhat contradictory) I extract the following principles.

A lien exists i.e. comes into existence

Only after work has been done or materials supplied not at the time o± the engagement to do the work.
S. 5(a) and (b).
Del Fabro v Wilckens & Burnside (1970) S.A.S.R. 277 at 284 - per Bright J.
Millers Lime Limited v Royal Agricultural
& Horticultural Society of S.A. (1936) S.A.S.R. 306 at 314-5 - per Murray C.J. per Angas Parsons J. at
325.
Pitt Limited & Others v The Corporation
of Town of Glenelg (1927) S.A.S.R. 501 at 505, 520,
526 - Per Richards J.
Albert Del Fabro v Wilckens & Burnside (1971)
S.A.S.R. 121 per Bray C.J. at 129 : Zelling J. (semble) at 137 Birchall Constructions
Pty Ltd v Jape Nominees & Another (Unrep) 19/3/82 -
Gallop J - p. 10)
(bi	When the price or a portion thereof has accrued due. s. 5

Del Fabro v Wilckens (supra) per Bright J. at 284 Millers Lime Limited v Royal Agricultural &
Horticultural Society of S.A. (supra) per Murray
C.J. at 314: Angas Parsons J. at 326
Albert Del Fabro v Wilckens & Burnside (supra) per Zelling J. semble at 137

Metropolitan Brick Company v Hayward & Another (1938) S.A.S.R. 462 per Napier C.J. at 466
Birchall Constructions Pty Ltd v Jape Nominees (supra) per Gallop J. at 10.
The contrary opinion of Richards J. in
Pitt Ltd &   Others v Glenelg (supra) must be taken to have been overruled by the Millers Lime case and indeed Murray C.J. and Angas Parsons J. in the Full Court expressly disagreed with the view of Richards
J. that the lien comes into existence independently of any money having become due.	Nor has any later decision taken this view.
But the Millers Lime case must itself be taken to have been overruled insofar as it states that in order to acquire a lien there must be registration. See Stapleton v F.T.S. O'Donnell, Griffin & Co. (1961) 108 C.L.R. 106, cited on this point by Zelling J. in Albert Del Fabro case at p. 137.

The existence of the lien in itself creates no enforceable right, but it can be the foundation of an enforceable right (i.e. an enforceable right will become "available 11 pursuant to s. 10) when the contract price or part thereof becomes due.	S. 10 - as distinct from having "accrued11      due - s. 5.
Del Fabro v Wilckens & Burnside (supra) per Bright J. at 284.
Albert Del Fabro v Wilckens & Burnside (supra) per Zelling J. at 138.
Once the contract price becomes due the lien operates as a security from that date.
Del Fabro v Wilckens &   Burnside per Bright J.	This analysis has the approval of Zelling J. in Albert Del Fabro v Wilckens at 138 and of Gallop J. in Birchall Constructions Pty Ltd v Jape at p. 10.
But unless registered within twenty eight days of the contract price becoming due the lien ceases to be a security.	S. 10(1) Bright J. in the Del Fabro	case

whose reasoning was approved by Gallop J. in the Birchall Constructions case.	Zelling J. in the
Albert Del Fabro case does not make any express comment on this point.

A demand in writing pursuant to s. 10(2)(a) will have the advantage of creating a fixed date from which the period within which registration must take place can be reckoned.	But there is doubt whether it is a necessary element to registration.	Murray C.J. in the Miller's Lime case thought that it was (P. 314).	But see Bray
C.J. dubitante in Albert Del Fabro case at p. 127.

In this analysis I have, I hope, studiously avoided discussion of the rights of sub-contractors vis a vis contractors or owners, although most of the cases cited arise out of claims by sub-contractors particularly under
s. 6.	I have endeavoured only to extract the views of the Judges on how a lien comes into existence and how it operates generally.

Adopting the principles set out and which I consider properly flow from the language of the Act I turn to their application in this case to the first notice of lien.

There is no doubt that work was done.		The question posed by Mr Mildren is;	had any sum "become due" when the lien was registered?	His answer is no, because of the time factors. Looking at the appropriate dates we see that the plaintiff submitted a "final claim" for $110,781-98 by letter dated 15 January 1986 to the Superintendent.	By Clause 42.1 of the Standard Form the Superintendent was then obliged, upon

receipt of the statement, to determine the value of the work carried out and issue a progress certificate.	This he did on 24   January but his certificate was only for $1128-39.	On the same day (and there is no evidence of which was first in time) the plaintiff issued and the defendant received the Notice of Demand for the $110,781-98.	On 5 February the plaintiff lodged the Notice of Lien which was registered the same day.	If, (contrary to Mr Mildren's argument which I shall later discuss) an amount "became due" on 24 January by the issue of the progress certificate then there were two
alternative time scales.	If the view of Murray C.J. in the Millers Lime case is correct it was still necessary to issue the Notice of Demand and then wait the seven days required bys. 10(2)(a).	The twenty-eight days would not commence to run until then.	If that was not necessary, the twenty-eight commenced to run on 24 January.	On either view the registration was well in time.

But Mr Mildren directs attention to the General Co11ditions of the Contract, and particularly Clause 42.1 which, so far as relevant, reads as follows:-

"42.1	Progress Certificates and Progress Payments Unless otherwise provided in the Contract, the
Contractor shall submit to the Superintendent a detailed statement, in a form satisfactory to the Superintendent, every month showing the contract value of the work carried out in performance of the Contract and incorporated in the Works.	Within twenty-one days after the receipt by the Superintendent of such a statement or, if the Contractor fails to submit any such statement, at such time as the Superintendent thinks

fit, the Superintendent shall determine the value of the work so carried out and incorporated and issue a progress certificate.

Payment of moneys due under a progress certificate shall be made by the Principal within fourteen days after the issue of that progress certificate.".

Mr Mildren submits that at the time of the plaintiff's first Notice of Demand no part of the contract price had fallen due.	Even if I hold, as I do, that that certificate issued on 24 January 1986, Mr Mildren would say that payment did not become due on that date because of the words:-

"Payment of moneys due under a progress certificate shall be made by the Principal within fourteen days after the issue of that progress certificate.".

Mr Mildren maintains therefore that payment did not become "due" until fourteen days thereafter. I cannot agree with this interpretation.

In Re Stockton Malleable Iron Co (1875) 2 CH. D. 101 at 103 Jessel M.R. said;
"The word 'due' may mean either owing or payable and what it means is determined by	the context".

In the context of clause 42.1, in my view the amount certified in the progress certificate became due on the issue of the certificate.	The fourteen days referred to is the time within which the defendant must pay, not an extension for fourteen days before the amount becomes due.

It does no more than give him a right to choose his own time to pay within the fourteen days.	It may be true that the plaintiff could not take action within that time to recover the amount stated on the certificate but this is no more than a procedural bar on a substantive right which had arisen, and points to a distinction between "due" and "payable".	The	clause itself seems to acknowledge this because it reads, "payment of moneys due under a progress certificate shall be made by the Principal within fourteen days of the issue of that progress certificate".	That is, the date of issue must be taken to be the date the monies fall due because the fourteen days is reckoned from that
time.

I am therefore of the view that the moneys under the progress certificate "accrued due" pursuant to s. 5 and "became due" pursuant to s. 10(1) on 24 January being the date of issue of the progress certificate.

In McKenna v City Life Assurance Company (1919) 2 K.B. 491 a policy of assurance provided that premiums were to be paid on certain dates but the conditions allowed "thirty days of grace" for payment.	Scrutton L.J. held that a premium became due on the date specified in the policy as that on which it was payable.		He said at p. 496-7

"In this case I come to the conclusion that a premium becomes due on the day specified in the body of the policy as the day on or before which it is to be paid as

a condition of the company's liability to pay the sum insured.	I gather that from the wording of the policy; and I notice with some satisfaction that that is the view taken by one of the greatest judges who has ever sat in commercial causes in this country, Mathew L.J.  In Stuart v Freeman, where the question was whether payment of a premium within the days of grace, but after the death of the assured, was sufficient to prevent the policy from lapsing, he said: 'In my opinion, the correct view as to the days of grace allowed by the terms of this policy is - that if payment is made within the time mentioned it is to be taken to have been made on the day appointed for payment, and is to have the same effect as if it had been made on that day,' thereby drawing a distinction between the date up to which the premium continued payable and the date when it became due.	Following that view I hold that the premium here was due on the day on or before which it was provided by the policy that it should be paid.	The conditions allowing days of grace means that if the premium is paid during those days of grace it shall be treated as if it had been paid on the due date.	The result is that the plaintiff fails in her claim.".

However that very case may supply some foundation for the second leg of .Mr Mildren's argument that even if the moneys "became due" on 24 January they did not become "payable" until the expiration of fourteen days thereafter; and since the Notice of Demand was given on 24th January it had been issued too soon and was therefore of no effect under s.
10(2)(a).	Scrutton L.J. makes this very point when in
.McKenna v City Life Assurance Co (supra) he speaks of "drawing a distinction between the date up to which the premium continued payable and the date when it became due".

Hutley J.A. i	Deputy Federal Commissioner-of Taxation v Patricia Peacock & Others (1980) 80 A.T.C. 4415 at 4415 says:-

"It is trite law that a debt can be due in the sense that it exists as a present obligation but is not payable in that the time at which the debtor is in default, if he has not paid, is later than the time at which he became a debtor".

In Mack v Commissioner of Stamp Duties (N.S.W.) (1920) 28
C.L.R. 373 at 382 Isaacs J. said:-

" 'Due' is sometimes used in the sense of 'payable'; that however is where the context requires it.	But as Mellish L.J. said with reference to the phrase "debts due" in Ex parte Kemp: Re Fastnedge L.R. 9 Ch. 383 at 387, prima facie and if there be nothing in the context to give them a different construction, they would include all sums certain which any party is legally liable to pay, whether such sums had become actually payable or not".

It would seem therefore that on 24 January 1986 the moneys certified in the progress certificate were "due" but not "payable" until fourteen days thereafter pursuant to clause
42.l of the contract.	As Napier J. says in Metropolitan Brick Company v Heywood (supra) at p. 466,

"The natural sense of 'payable' is 'that must be paid' and money is not 'payable under' a contract until the contract binds the party to pay it, i.e. until the conditions precedent have been satisfied or excused.".

However in my view this argument does not avail the
plaintiff because the provisions of s. 10(1) do not depend
upon the provisions o± s. 10(2)(a) but are independent of them.	s. 10(2)(a) is in my view one way and obviously the most convenient way of determining when a contract price

shall be deemed to have become due.	Nothing in the section suggests that it is mandatory to issue and serve a notice of demand.	S. 10(1) says quite plainly that the lien is available (only) if registered within twenty eight days of
the contract  price having become due.	s. 10(2) then goes .on
to provide circumstances in which that may be deemed to be so.	But it neither suggests nor says that that is to be the only way in which the Act shall operate.	It is true that in both subsections the words "for the purposes of this section" are included.	That does not convey the imputation that subsection (1) is dependent on subsection (2)(a).	The repetition rather conveys the opposite sense that the purposes of the section are achieved if the contract price is actually due or can be deemed to be due.		In either case subsection (1) then provides that registration should take place before twenty eight days of the contract price becoming due or deemed to have become due.		It would be a strange result otherwise if that which actually existed were subordinated to that which was deemed to exist.	In other words the Act says you can rely upon your contract price being due though you may run the risk of being challenged as to when it became due; or you may have the certainty of the issue of a notice of demand to put beyond doubt, at least for the purposes of the section, the date it became due.		It is interesting to note that s. 10(2)(b) does not require service of a notice.	Since the words "for the purposes of this section" govern both subsection (a)and (b) of section

32

10(2) it is difficult to see that a Notice of Demand is a requisite for s. 10(1).	The words "for the purposes of this section' seem to refer to the following subsections (3), (4) and (5) on the basis that once a lien is available there are certain formalities to be followed.

For these reasons I would respectfully differ from the views of Murray C.J. on this point in the Millers Lime (supra) at
p. 314 and note that Bray C.J. in the Albert Del Fabro case expresses "grave doubts" as to the view of Murray C.J. that the making of a demand under s. 10(2) is necessary.

In this case therefore, the first notice of lien had proper validity, or at the very least could not be said to be a nullity.

Mr Mildren's time scale only has validity if I accept that the monies became due and payable 14 days after the issue of the progress certificate, i.e., fourteen days from 24 January or, if receipt of the certificate is the important factor, then fourteen days from 28 January and the corresponding dates are 7 February and 11 February.	So, he would submit that no monies had become due on 5 February when the lien was registered and the lien is a nullity.	But for the reasons I have given I rule otherwise.

Although Mr Mildren did not argue this I think I should note the disparity in amounts.	On the progress certificate, if any amount had become due at the time of registration of the first lien the amount was $1128-39.	By the Notice of Demand and the lien itself the plaintiff claimed the much larger figure of $110,781-98.	To my mind nothing turns on this.
The greater includes the less and so long as some amount had become due the plaintiff had the right to the lien.	The question of amount would, of course, be the subject of the substantive action with which I am not concerned in these interlocutory proceedings.

But if I am wrong in my assessment of the time when the contract price became due or payable it seems to me that there are several further reasons why the plaintiff's arguments should be rejected.

In the first place, and since Mr Mildren does not seem to be attacking the reasoning of the Blythe Green case, the force of his argument depends, as he concedes, on demonstrating that the first and second notices of liens or the first lien itself, were nullities.	That is a very difficult stance to maintain when a document has been duly registered in the office of the Registrar-General.	Omnia praesumuntur rite esse acta. Now there may well be an argument in this case that monies under the contract became due on performance and irrespective of any progress certificates.	I need not

34

follow that argument here which depends upon an examination of the whole terms of the contract.	I merely mention it as one of several possible bases by which the prima facie validity of the registration could be supported even if the plaintiff's arguments on the time factors were correct within its assumptions.		The onus of establishing that the first lien was a nullity must be on the plaintiff.	It does not succeed merely by showing that if one set of assumptions are correct the first lien did not comply with the time limits provided by the Act.	The act of officially registering documents under the Real Property Act is always regarded as giving those documents a very strong imprimatur of validity for it is public confidence in the system that is its raison d'etre.	Indeed once the lien is registered there seems to be no machinery for having it declared void although it can be "cancelled" (sees. 32 of the Workmens Liens Act).	This seems to be the case even if a fraudulent claim is made.	That is an offence pursuant to s. 33 but nothing is said there of any procedure to declare the registration of a lien based on a fraudulent claim void ab initio.	It would presumably have an existence until cancelled.

The situation is similar to the case of caveats, i.e. a caveat may be lodged and until removed will be effective; though ultimately it may be shown to have no real basis,

s. 191 Real Property Act.	Bys. 12 of the Workmens Lien Act a "notice" (by which is meant notice of lien - see
s.	10(3)), when lodged, is "deemed to be a caveat".	The effect of a caveat is discussed in Professor Woodman's book
- "The Law of Real Property", Voll at p. 220:-

"It has been said that a caveat 'operates as notice to all the world that the registered proprietor's title is subject to the equitable interest alleged in the caveat': Butler v Fairclough (1917) 23 C.L.R. 78 per Griffith C.J. -at 91.	It is more correct to say that a caveat operates as notice that the registered proprietor's title is alleged to be subject to the interest claimed in the caveat, but in any event this should not obscure the true nature of a caveat which operates, not because it is notice, but because it is a caveat - a statutory injunction - which must be removed by one of the statutory methods before a subsequent dealing can be registered.".

The words "alleged to be" which are placed in italics by the learned author are significant here because they illustrate that the allegation may ultimately be shown to be incorrect, in which case the position can be cured on an application seeking the removal of the caveat.	Sees. 191 (iv) of the Real Property Act.	But until then it is effective.	So too with the first lien.		The Registrar-General cannot be concerned with the factual basis which may or may not support the caveat or the lien.	That is a matter for the court if the instrument is challenged.	Professor Woodman says at p. 216 of Volume 1 of "The Law of Real Property", speaking of the N.S.W. Real Property Act but in terms which I accept as applying equally to the N.T. Real Property Act:

36

"There is nothing in the Act which says that a caveator must have established as a condition precedent to lodgment and acceptance of that lodgment by the Registrar-General a proprietary interest in the land: All that is necessary is production to the
Registrar-General of a caveat in approved form claiming an interest in the land, and it is considered that the Registrar-General is bound to accept a caveat complying
with the formalities."

The Registrar-General's duty is to record the instrument by memorandum; in the case of a caveat bys. 191(II)
Real Property Act; in the case of a lien bys. 11 of the Workmens Lien Act.	He may refuse to accept the instrument if not in proper form or if there is some plain obstacle to lodging or registration on the face of it; and the latter reason is presumably why he did not complete the registration of the second lien; because on the face of it it sought precisely (or almost precisely because the amount claimed was slightly different) the relief sought by the identical lienor from the identical lienee in the first lien which was then still registered.

It is very difficult in these circumstances to suggest ttat despite the formal registration of the first lien and the effects of that registration, it was in fact void ab initio.

As Rice J. in the Blythe Green case points out it was never contemplated by the Act that "a claimant could effectively fetter the title to land by lodging intermittently a series

'	37

of Notices of Lien for the identical amount without ever having commenced an action to enforce it".

One should add here that the slight difference in amount between the first and the third lien (never properly explained) is irrelevant because the claim clearly arises out of the same set of circumstances and between identical parties.

Although, in the view I have taken, it is not strictly necessary to deal with the second notice of lien it may be that it too had some form of life because of the rather confusing use of the expressions "lodge" and "register" in the Act.	Although a notice of lien is, pursuant to s. 12, "deemed to be a caveat", it seems to have at least this difference that it is both "lodged" and "registered"; whereas as Isaacs J. says, in Barry v Heider (1914) 10
C.L.R. 197 at 219, "Caveats are lodged not registered". The
confusion in the Act is brought about bys. 10(3) which says that, "A lien shall be registered by the person claiming the same lodging in the General Registry Office a notice...".	Buts. 11 says that Upon the lodging of such notice the Registrar-General shall make a memorandum
of such notice upon the folium of the Register Book. Sections 12 and 13 then speak of the effect of notices lodged but sections 15 and 16 speak of times commencing "from registration".	Normally one would think that the

38

claimant lodged a document and the Registrar-General registered it.	In my view the words in
s. 10(3) can only run with sections 6, 9, 11, 15 and 16 by adding after the words ins. 10(3), "A lien shall be registered by the person claiming the same lodging", the words, "for registration"; so that the act of registration is not the lodgment but the action of the Registrar-General in recording the memorandum under s. ll(I) or (II).	This then gives meaning to the distinction between the expression "Notice of lien" which occurs in sections 12, 13 and 14 and the expression "lien" in sections 4 - 6 and s. 10(1), 15 -
17.	What is lodged is a "notice".	When registered the lien is created in the terms of the notice.

If that is so the second notice of lien would have had some effect pursuant to section 12 in the sense of being deemed a caveat forbidding registration of any dealing "unless expressed to be subject to the claim of the person lodging the notice".	Certainly any "claim" pursuant to the second notice of lien would be unenforceable by action since actions under the Act can only be brought with respect to liens, not notices of lien.	(See e.g. sections 15, 16, 17, 19, 21).	But even the operation of the notice pursuant to section 12 - inetfective as it may prove - would be sufficient to dispel .the argument that it was void ab initio.

39

Here, therefore, the plaintiff has twice before lodged a notice of lien concerning the same subject matter, the same alleged debt (subject to a minor variation) on the same land and concerning identical parties.	The first of those notices proceeded to registration; the second did not.		In each case the plaintiff by its own actions must necessarily have then been asserting the validity of the notices.	In my view the first notice of lien and subsequent lien was valid and certainly neither the first nor the second notice of lien could be said to be nullified.		On the reasoning of the Blythe Green case (with which I respectfully concur) the third (i.e. the present) notice and the lien which was registered pursuant to it must be removed.

It is plainly incumbent on a claimant under this Act to see that the strict limitations are properly complied with.
Otherwise he acts at his peril.	The plaintiff has twice previously tried to avail itself of this very special and restricted right.	The present lien cannot stand.

I am well aware that on an interlocutory proceeding such as this great caution must be exercised before depriving a party of a cause of action which he might otherwise have available at the trial.	In Dey v Victorian Railways Commissioners 78 C.L.R. 62 at 91 Dixon J, said:-

"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims.	The

principles upon which that jurisdiction is exercisable are well settled.	A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury.
The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious.	But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.".

In General Steel Industries Inc v Commissioner for Railways
N.S.W. 112 C.L.R. 125 at 128-9 Barwick C.J. said:-

"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.".

In this case I consider that I have had the requisite materials and necessary assistance to reach a definite conclusion.	I do not believe that there could be any relevant further material on this issue put to the trial judge that has not been put to me; and I have had the advantage of full and competent argument on the subject.	It is true that the matter is somewhat complicated.	But as Latham C.J. in Dey v Victorian Railways Commissioner (supra) points out at p. 84:-

"The contention of the appellant really is that the procedure under Order XIVA or Order XXV, rule 4 (of the rules of the Supreme Court of Victoria) or under the

"

41

inh7rent	jurisdiction of the court for dismissing an action at an early stage, should be used only in easy
cases.	I do not agree with this view where there is opportunity for full argument and full consideration of the question raised.".

Order XXV rule 4 of the rules of the Supreme Court of Victoria is in the same terms as Order 29 rule 4 of the Rules of the Supreme Court of the Northern Territory; but as Mr Mildren points out the action has not reached the stage of pleadings so the jurisdiction to strike out part of the indorsement of the Writ is within the inherent jurisdiction of the Court.

The summons seeks orders for striking out of paragraph 4 of the plaintiff's indorsement on the Writ which can be effected under the inherent power of the Court and for the consequent removal of the lien which I consider the Court has power to grant under s. 37 and possibly s. 32 of the workmens Lien Act.

Before making such orders it may be appropriate to remark that this rather complicated Act has probably now outlived its usefulness.	In 1893 it was an advanced piece of social legislation to protect workers and small contractors from exploitation by employers who might use their economic strength to defeat or delay claims for work done or goods supplied.	It has obviously lost any effectiveness so far as enforcement of claims for wages is concerned.	It must have been a very long time since a workman sought the protection

of the Act; for no amendment to s. 4(3) has ever been promulgated and that subsection limits a workman"s lien for wages to a sum "not exceeding twelve pounds".	A vast mass of industrial law since 1893 has given workers protection in other ways more efficient than this rather cumbersome procedure.	The Act now seems mainly used by corporate bodies against other corporate bodies, no doubt usually of comparable financial strength, to obtain a special form of security not available otherwise than in the Northern Territory and South Australia.	The only other comparable Act in Australia, the Queensland Contractors
&   Workmens Lien Act was repealed by Act No. 2 of 1964.	One may query whether this form of security is not mere surplusage on various other forms of security open to contractors; and whether the present operation of the Act has now any relevance to its original and laudable aims of protecting the economically weak from the economically strong.	But these are matters for another place.

There will be an order striking out paragraph 4 of the indorsement of claim to Writ No. 275 of 1986 and a further order that pursuant to s. 37 lien registered No. 173583 be discharged from all certificates of title on which it presently appears and that the Registrar-General make a Memorandum that the said lien has ceased, the defendant applicant to have its costs of and incidental to this application and to the carrying into effect of these orders.