SUB-CONTRACTORS' LIEN ACTIONS.

Taranaki Daily News, 6 February 1918, Page 6

SUB-CONTRACTORS' LIEN ACTIONS.

INVOLVED CASES. In the Supreme Court yesterday llic following claims, arising out of tlie erection of Everybody's Theatre, were heard before his Honor Air. .Justice Edwards: Berridge v. Chappell and Woolley and the Taranaki Amusements, Ltd., claim for £SB 12s for debt. John West and Wm. Robert West v. Taranaki Amusements and Chappell and Woolley, claim for £lO2 19s 3d for debt. Alfred George Nixon and Wm. Chas. Nixon v. Taranaki Amusements, Ltd., and Chappell and Woolley, claim for £164 8s 3d for debt. Albert E. Stonex and P. C. Stonex v. Chappell and Woolley and the Taranaki Amusements, Led., claim for ,£24 10s lid, for debt. The Carara Ceiling Co., Ltd., v. Taranaki Amusements, Ltd., and Chappell and Woolley, claim £404 15s Bd, for a charge under the Wages Protection and Contractors Liens Act, 1908. Jt, was agreed to take all the cases together. Mr. A. H. Johnstone represented the Carara Ceiling Co., Mr. Quilliam appeared for T. A. Berridge and Nixon and Nixon, and Mr. F. E. Wilson represented West and West. A. E. Stonex and P. C. Stonex were not represented. Mr. Johnstone said that in June, 1916, Chappell and Woolley entered into a contract for the erection of Everybody's Theatre at New Plymouth, for a sum of £5253. The building was erected and a certificate of completion given by the architects. The plaintiff, in July, 1916, entered into a sub-contract with Chappell and Woolley for the fibrous plaster work in the building for £529 9s 9d. The claim was for plaintiff's share of the moneys available for payment as held by the defendant company, and amounted to £454 15s Sd. Thomas Herbert Bates, clerk of works in connection with the erection of the theatre, gave evidence that the Carara Ceiling Company completed their iontract on February 28, 1917. The plumbing contract of Nixon and Nixon was completed on March 27, 1917. He not say when West and West's contract was completed. In the ease of Nixon and Nixon, Mr. Quilliam applied to have the amount of the claim amended to £l4p 10a 3d. The claim was commenced in the Magistrate's Court against Chappell and Woolley, who had not intimatc-d their intention to defend the action. The present defendants had given notice to defend. He, therefore, asked for judgment by default against Chappell and Woolley. In the case of T. A. Berridge, Mr. Quilliam said Ciiappeil and Woolley had confessed judgment ill the Magistrate's Court for the amount now claimed. The requisite notice had been served on defendants.

Thomas A. Berridge, in evidence, aaiil lie contracted with Cl.appel! and Woolley for the supply of shingle for tlio building of Everybody's Theatre. It was his practice in such contracts 10 get daily receipts for the amounts delivered. In September last Chappell and Woolley gave him an order on the Taranaki Amusements, Ltd., for the amount now ciiii'iie:!, le>s ,C2 -s. He had also supplied horse.-, and drays at a fixed rate per hour. To Mr. Kennett: He always kept monthly accounts. His agreement with defendants v.*as that payments on account of work done should be made on the twentieth of each month. Tiie claim of West and West, whom Mr. Wilson represented, was amended to .!'!)! l!)s 3d. Xo defence had been filed, and Mr. Wilson asked for'judgment by default ngaM Chappell and Woolley. It was admitted that notice of the claim had been eerved on defendants, but it would be nere .sary to prove that Chappell and Woolley had been served. William U. West, painter, New Plymouth, said his tirm entered into a eontract with Chappell and Woolley for painting Everybody's Theatre. The work was finished on March 14, 1917, and an account for the amount rendered on March IC. Witness was in Auckland, and personally delivered notice of the claim to Mr. Clnippell on April 5. To Mr. Bennett: He could not give the exact dales on which the extras claimed wore carried out. They were done as the way became clear for them. He had no special understanding as to the time of payment for the-extras. He, took it they would be paid for in the customary manner.

To Mr. Wilson: The clerk of Works had ordered the extras which were claimed. Mr. Bennett, in stating the defence, said the proceedings were all taken becausq of the failure of the main contractors (Messrs Chappell and Woolley) to pay their sub-contractors, who now asked that their respective claims be paid by the owners of the theatre (Taranaki Amusements, Ltd.). This company admitted a liability of £557 19s 9d under the building contract, which amount it was prepared to pay to such persons, and in such amounts, as the court should direct. In order to protect itself against any payment being improperly made, and to have for its protection an order of the Supreme Court, the theatre owners defended the present proceedings, and put the various claimants to proof that the amounts of their claims were correct, and were otherwise in order. Mr. Bennett said that, as a matter of fact, the company had a bondsman, who had taken no interest in the washing-up process, but the company was bound to defend the present action for the purpose of establishing every claim. Hugh C. Grierson, a sergeant of 35th Reinforcements, who was previously a member of the Htm of Grierson and Aimer, architects, Auckland, said his firm let a contract to Chappell and Woolley on January 12, 1016, for the erection of Everybody's Theatre, for £5283 16s. The contract was completed twelve months after due date. There was a penalty of £3 per day for every day's delay in the delivery of the building. The penalty ♦us paid. There was a good deal of trouble with the contractors from the beginning, and there seemed to be a lack of organisation and want of up-to-date appliances. The contractors complained that labor could not be secured. The work was not taken over by the architects for the owners of the building. The contractors remained on the work, though they gave witness permission to employ a foreman to organise the work.

To Mr. Johnstone: The owners occupied the building from December, 1916, to .Tunc, 1017, which was part of the period during which the building was in course of erection. The contract time expired on June 20, 1910. The inen on the work were the employees of Chappell and Woolley. They also paid the foreman appointed by witness. To Mr. Quilliam: Tiie penalties for non-completion of the work were not enforced. Certain extras were ordered by witness. The contractors' excuse for his delay was that he could not get sufficient labor. To Mr. Bennett: Labor was procurable. ii witness got twenty men straight

away when allowed bv th:* contractors, anil those men remained lill Ihe work was completed. To Mr. yuilliain: No additions In plant were made after the building owners began to carry out the work, excepting some improvements to sea(Void - Thomaß C- List, newspaper proprietor. Xew Plymouth, chairman of directors of the defendant company, deposed thai up to 21st July all the payments were in accord with the builders' eertilicates. On July 22 a sum was paid in anticipation of securing the architects' certificate. The next architects' certificate was received on September 12, by which time thre« more payments iiad been made without a certificate. On that date the Spntractors went to Auckland with a view to adjusting their finances. Shortly afterwards it was found that the arrangements made were inadequate to allow them to comply with the terms of their contract. They asked for .special financial assistance. The company decided to pay all wages on production of time sheets and other pressing accounts to enable them to complete the work. r That arrangement was made in October, 1916. Prior to that date the contractors bad been paid all. moneys due under the architects' certificate. There was no further certificate until the final certificate, which was given in June, 1917. To Mr. Johnstone: He presumed "there would be a record of the arrangements in the company's books. He did not know what sub-contraetors were working on the 'building at the time the new arrangement was made, nor whether the Carara Ceiling Company were working then He doubted if the building was ready for them at that time. To his Honor: The secretary of the company handed the cheque for wages and pressing accounts to the contractors.

To Mr. Johnstone: The amount; of wages and pressing claims were deducted from the amount duo for iinal settlement to Chappell and Woolley. Some sub-coiitractors were paid a proportion of their amounts. The fact that there was a bond guaranteeing the contractor made it necessary for the company to get all claims substantiated and determined by the Court To Mr. Quilliam: He was aware that Berridge had supplied sand and gravel for the theatre. . He would pay Berridge for his contract on the advice of the company's solicitor. He would say Berridge was entitled to every penny of his claim. It was necessary for the company to get the claims in the present cases substantiated before the company could claim against the bondsman. The company was forced into defending the present action. it was in the position of being an unwilling defendant. Wm. Mowat Falconer, secretary of the defendant company, said he was aware of the payments that passed between the company and the contractors.' He was aware of the payments that jiassed between the company and the contractors. He was present at the interview when the .final settlement was made with the contractors. Xbey were debited with the amounts for wages and the pressing accounts which the comply had paid. The balance of .Cj. r >7 Ills fld, due to the contractors, was on the assumption that Chappell and Woolley were liable to the Farma -Stonewood Company for the amount, of their claim. To Mr. Johnstone: There was 110 resolution 'on the minutes of the company of the arrangements mad l in regard to the company paying wages and pressing creditors. The. amounts paid to Brown and Co. were paid to them for Chappell and Woolley at their request. Since October 14 Brown and Co. had been paid £S-l.i Os. Tliev were timber merchants who, as sub-contrac-tors to Chappell and Woolley, supplied timber, joinery, and cement. Brown and Co.'s accounts wer ■ rendered to Chappell and Woolley. On the day wages were due, the contractors presented wages sheets showed the amount required and witness supplied a cheque for the amount. Of the pressing accounts paid there was an amount to Xixon and N'ixon on November 11 of £SO, and a further £75 or. November "23. He took it that the sub-contractors were pressing the contractor for payment. On November 30 a sum of £2OO was paid to the Carara Ceiling Company. The company applied for other payments, but none were made. From the date of the arrangements made with the contractors a sum of £1250 13s was paid on account of wages. To Mr. Quilliam: Witness admitted that at the time Brown and Co. were pnMpaid they had a mortgage over one of the company's properties.

To Mr. Wilson: He did not know until he learned in the present contract that 2.) per cent, of the contract price was required to toe held by the building owners against poasibie liens by subcontractors. Wm. Clias. Nixon, a partner in the firm of Nixon and Nixon, plumbers, New Plymouth, said the work done a,s extras for which the claims were made • was dons throughout tile contract. The dates on the statement of account were the dates on which the work was commenced. ' \ Mr. Bennett submitted authorities to show that a building owner was justified hi encroaching on the 25 per cent, required by statute to be kept in hand in order to secure the completion of a contract. In respect to the claim of West and West and Nixon and Nixon he submitted plaintiffs were not entitled to recover all their claims, as their notice of lien in respect of portions of work done had expired by effluxion of time. Messrs Johnstone and Quilliam also addressed the Court. His Honor reserved judgment.