WHEN DID JOB END?

Evening Post, Volume CIX, Issue 102, 2 May 1930, Page 15

WHEN DID JOB END?

A WAGES LIEN

APPEAL ALLOWED

The appeal of Jane Seed Ross, of Kenya street, Ngaio, married woman (in respect of her separate estate) from the decision oE the Magistrate's Court by which John . rfchibald M'Oregor, of Wellington, plumber, then the plaintiff, and now the respondent, was held entitled to a Hen under the Wages' Protection and Contractors' Liens Act, 190S, over land at Ngaio belonging to Mrs. Ross, was allowed in the Supreme Court to-day by His Honour the Chief Justice (Sir Michael Myers). His Honour's judgment says in effect that M'Gregor entered into a contract in February. 1928, to do plumbing at the house Mrs. Boss was building at Ngaio. M'Gregor began work there in March, 102S, and the main part of the work was finished in three and a halt mouths. . All he did afterwards was to <L~ a new ball tap, do some minor repairs, and supply a; toby-box of the value of 4s 6d. . He handed the work over, as completed, to Mrs. Ross in June, 1928, and she entered into possession. On the 7th June, 1028, Ross was adjudged bankrupt, and the Official Assignee took proceedings to recover from Mrs. Ross moneys which Ross had expended within two years before the date of his adjudication iv purchasing lands in his wife's name, and improving them. It was not until after the Supreme Court had made' an order in the Official Assignee's favour on 30th April, 1929, and on or about Ist May, 1929, that M'Gregor installed the toby box, which he claimed as the Completion Of work fixing the period within vvhjcli he is entitled to claim a lien. In the meantime, Mrs. Rsss had come to a settlement with the Official Assignee, and had executed a transfer of the Ngaio land to him, but the registration of the transfer was suspended by the proceedings in the action. Dismissing the repair to the ball tap on 24th April as a mere repair nearly a year after the work was done, His Honour says it is clear that the whole of the work, save for the supply of the 4s Gd toby box, was completed before "th June, 1925. There was no evidence that a toby box \<as included in the original contract, but the Corporation inspector said he would not have given his certificate had it not been there, and on 21st November, 1928. M'Gregor had sent Mrs. Ross an account for the total contract price. She had then been in possession for. some months, and the circumstances in His Honour's opinion raised the implication of an agreement that possession of the work was given, and accepted, as completed. "In all these'circumstances, I 'find myself unable to agree with the learned Magistrate that M'Gregor's work was not finished till May, 1929, said His Honour. . . Even if the toby bos had no. been then supplied, I think that in all the circumstances of the case, the work having been taken over by Mrs. Ross, the plaintiff in the Magistrate's Court, would. have been entitled: to recover the amount of his contract less the sum of 4s Qd, if the non-supply of the toby box, had the. become known. ' After citing authorities and traversing a judgment relied upon by the Magistrate as an incomplete and oral one, not to be relied upon in all such cases, His Honour said that had all the documents and evidence now before the Court been placed before the Magistrate, he would havp taken a different view. "I do not for a moment think," concluded, his Honour, "that Mr. Justice Williams in Walker v. Roberts could have intended his observations to r apply to a case like the present, where there was no question of the approval of a third party such as an architect, no requisition within a reasonable time (or at all) to the plaintiff, and where nearly twelve months had elapsed since the work had been approved and taken over on ap implied agreement to treat it as com pleted.. The logical effect of a literal in terpret'ation of the learned Judge's words would be that a contractor or sub-con tractor might hand over work as completed, but by accident or design leave, perhaps (especially if by design) in a more or less hidden manner, a few nails to be driven, or some other trivial thinp to be done, and then months afterwards, if he had not been paid for his work, go back of his own accord without any requisition of any kino, drive the nails or remedy the trivial defect, and then claim a lien upon the land. I cannot think that that is what is meant either by the Act or_ by anything that Mr. Justice Williams said. If such a thing were allowed it might seriously affect the rights of third parties and leave the door wide open to fraudulent practices. The appeal is allowed, without prejudice to any right that the respondent may have to prove as an ordinary creditor against the estate of either of or both the bankrupts."