CLAIM FOR WAGES.

Hauraki Plains Gazette, Volume XXXIII, Issue 4457, 23 August 1922, Page 3

CLAIM FOR WAGES.

RESERVED JUDGMENT GIVEN.

AN INTERESTING DECISION.

Judgment was given at the Paeroa court on Monday by Mr J. H. Salmon, S.M., in a recent case brought oy Phillip Hutchinson and Joseph Douglas (workers) against Thomas Gavin Douglas and John Leather (contractors) and Robert Phillips (employer) to enforce claims for wages under section 61 of the Wages Protection and Contractors’ Liens Act, 1908. His Worship found the following facts proved: That defendants T. G. Douglas and J. Leather some time in January, 1922, enteie'l inteo a verbal contract with defendant Phillips to cross-cut certain timber at Komata and to haul such timber tp the roadside; also co cart same to Phillips’ mill at 4s 6d per 100 ft, though it appears to have been agreed that some pine should be paid 5s 6d per 100 ft. He found no definite quantity was .agreed upon, nor any period agreed upon over which the contract was tp extend, though it was clear it was never contemplated to extend over a year. That plaintiff Hutchinson was engaged by the contractors at 12s 6d per day and found, and plaintiff J. DouglasJat £1 per day and found himself. That defendants T. G Douglas and L eather ceased work on the contract on April 8, 1922, and that they were entitled to terminate the contract. That plaintiff Hutchinson worked on contract from February 1, 1922, to April 8, 1922 (inclusive), and that £3l 10s was owing in wages. That plaintiff J. Douglas worked on the said contract from February 20 to April 7, 1922 (inclusive), and that £33 10s was owing in wages. That an alleged agreement by defendant Phillips to sell to the contractors a team of bullocks is not proved. That defendant Phillips rendered two. statements tp the contractors, one giving credit for £44 9s 9d and debiting the contractors with £2's Ils 6d, including £ll deducted by Phillips for the alleged purchase of bullocks, leaving a credit to .the contractors of £l7 18s 3d. The second statement, delivered a few days after the first, gave a credit to the contractors for £49 Is 9d, and the contractors were debited with £lO6 8s 3%d, which included an amount of £lO 12s. That of. the items debited to the contractors in the second statement defendant Phillips had paid only £29 8s lid. That notices of these claims for liens were served on defendants in accordance with the pro visions of the Act.

His Worship went On to say that upon notice being given by a worker under section 56 of the Act his lien becomes an .absolute charge upon any moneys in the hands of an employer immediately payable by the employer to the contractors under the contract beyond the sum required to be retained in hand by the employer under sub-section (2) of section 9 of the Act. The second statement rendered by Phillips shows that he gives credit for logs supplied to the value of £49 Is 9d, and debits the contractors with £lO6 8s 3%d. He would be entitled to debit the contractors with payments made in good faith before notice in writing of these liens was given up to threei fourths of the contract price of those logs?- It appeared from the evidence that Phillips had not paid the items amounting to £lO6 8s 3%d, for which he chained credit, the only item he being able to establish as bona fide being one of £2O. It was clear that payments made by Phillips atfer May 6 1922. were not protected under section 59, sub section (i). The position therefore was that Phillips on May 6, 1922, had, according to his own statement construed in terms of the section, a sum of £29 Is 9d in his hands payable by him to the contractors under the contract. The lienors had, therefore, an absolute charge on that amount, and it had not been paid. These proceedings have been properly brought under section 61.

In the second statement, and also in the statement rendered by Phillips on March 17, 1922, he claimed to deduct certain sums as due by the contractors in respect of; an alleged agreement to purchase a team cf bullocks. The evidence as tp this agreement was extremely vague, and Phillips’ own evidence on the subject conflicted to some extent with the items appearing in the statements. In the first statement he claimed to deduct "25 per cent. on bullocks £1.1,” and in the second "25 per cent, off for bullock team and gear as rent or purchase of bullocks are fully paid for." It was true the contractors gave no ev'.dence at all as tp the alleged con-t tract tor the purchase of the bullock team, and Phillips’ evidence on the point was not contradicted, nor did the contractors appear to have disputed the item in the March statement at any time. Practically the whole of the evidence in this case was directed tp the point as tp when the plaintiffs finished work on the job, and therefore whether the notice of intention to claim the Hen was served in time. It was impossible for the magistrate to find on the evidence what were the exact terms of the alleged contract, or even that a contract was established.. Moreover, it was admitted that the bullocks were now in Phillips’ possession. In the circumstances His Worship could not find that the item ofl £lO 12s lOd claimed by Phillips as a bona fide one to himself was protected by section 59, sub-section (1). His Worship was not concerned with the first statement, nor the items for which Phillips claimed credit, because there was a clear statutory obl'gatioii on the part of Phillips to retain one-fourth of the moneys payable by him to the contractors, namely, £ll 2s sd, until the expiration of 31 days after the completion of the contract. He had no right to pay over to the contractors the balance of £l7 18s 3d due to them under the March statement. It was clear that Phillips never on any occasion carried out the statutory obligation imposed on him, and is therefore liable to the lienors to the extent of £ll 2s sd. Defendant Phillips was precluded under section 59, subsection (2), from setting up the payment of £l7

18s 3d tp the contractors in answer to the plaintiffs’ claim. Till defendant Phillips is, therefore, liable to the plaintiffs for £29 In 9d, plus £ll 2s sd, pn £4O 4s 2d, wh>’ci; is the amount of his total liability in respect Of these claims for wages, with costs £ll 4s. There is no priority under section 54 of the Act as between claimants of the same class, and the plaintiffs are therefore entitled to participate rateably in proportion to their claims and there must be an order .accordingly. The whole of these proceedings are directed to the question of Phillips’ liability under the Wages Protection and Contractors’ Liens Act, 1908. The defendants T. G. Douglas and John Leather admit the plaintiffs’ claims for wages for the full amount claimed by them respectively, namely £3l 10s in respect of Hutchinsons’ claim and £33 10s in respect of, Douglas’ claim, and judgment is entered accordingly against the defendants T. G. Douglas and Leather for £65, with court costs £l.

By consent the amount of £4O is 2d is apportioned as follows: Hutchinson £2O, J. Douglas £2O 4s 2d.