The Short Title of this Act is “The Contractors’ and Workmen’s Lien Act, 1892,” and it shall come into operation on the first day of January, one thousand eight hundred and ninety-three.

In this Act, unless inconsistent with the context,—

A contractor, sub-contractor, or workman who does or procures to be done any work upon or in connection with any land, or any building or other structure or permanent improvement upon land, or does or procures to be done any work upon or in connection with any chattel, is entitled to a lien upon the whole interest of the employer in that land or chattel for the contract price of the work, but subject to the conditions and limitations following, that is to say:—

The lien of a contractor does not exceed the amount for the time being due to him under the contract between him and the employer;

The lien of a sub-contractor does not exceed the amount for the time being due to him under the contract between him and the contractor or sub-contractor under whom be works.

The lien of a workman, other than a contractor or subcontractor, does not exceed the amount for the time being payable to him for his work, whether be was employed by the employer or by a contractor or sub-contractor;

The total liability of the employer in respect of all such liens together does not, except in the case of fraud, exceed the contract price payable under the contract or contracts between him and the contractor or workmen with whom be directly contracts;

The lien of a workman in respect of one contract does not exceed thirty days’ earnings.

The estate or interest of the owner who is not himself the employer in the land or chattel on or in respect of which the work is to be done shall be subject to lien or liability as if he were himself the employer, to the extent to which such owner shall have consented in wilting.

A sub-contractor is entitled to a charge for the money due to him under the sub-contract upon any money payable to his contractor, or to any superior contractor, by the employer or by any superior contractor, in respect of the work done or to be done under the subcontract.

A workman is entitled to a charge for the money due to him for his work upon any money payable to the contractor or sub-contractor by whom be is employed, or payable to any superior contractor in respect of the work done or to be done under the contract of the subcontractor by whom be is employed.

When land upon which a hen attaches under this Act is mortgaged under a mortgage duly registered before the registration of a lien under this Act against such land under the contract in respect of which the lien arises, the mortgage shall, unless the mortgagee is a party to the contract, have priority over the lien; but, if the mortgagee is a party to the contract, the lien shall have priority.

All moneys which a mortgagee may pay in respect of a lien shall be added to and form part of the principal money mentioned in his mortgage, and shall bear interest accordingly.

The several liens and charges created by this Act shall as between themselves have priority in the order following, that is to say:—

The liens and charges of workmen for wages;

The liens and charges of sub-contractors;

The liens of contractors;

so that the lien or charge of a sub-contractor shall have priority over the lien or charge of the contractor with whom his contract is made.

A person who intends to claim a lien upon any land or chattel under this Act shall, before the completion of the work in respect of which it is claimed, or within thirty days after the completion, give notice to the owner, if liable, specifying the amount and particulars of his claim, and stating that he requires the owner to take the necessary steps to see that it is paid or secured to the claimant.

He shall also give notice of having made such claim to the person who, but for the claim, would be entitled to receive from the person to whom the notice of claim is given the money in respect of which it is given.

A notice of claim of lien may be given although the work is not completed, or the time for payment of the money in respect of which the lien is claimed has not arrived.

If no such notice is given, the lien shall not attach.

A sub-contractor or workman who intends to claim a charge upon money payable by the employer or by a superior contractor to his contractor or to a superior contractor shall, before the completion of the work in respect of which it is claimed, or within thirty days after the completion, give notice to the employer or superior contractor, as the case may be, specifying the amount and particulars of his claim, and stating that he requires the employer or superior contractor to take the necessary steps to see that it is paid or secured to the claimant.

He shall also give notice of having made such claim to the person who, but for the claim, would be entitled to receive from the person to whom the notice of claim is given the money in respect of which it is given.

A notice of claim of charge may be given although the work is not completed, or the time for payment of the money in respect whereof the charge is claimed has not arrived.

If no such notice is given, the charge shall not attach.

A notice of claim of lien or charge may be in one of the forms in the Schedule hereto or to the like effect. But its validity shall not be affected by any inaccuracy or want of form, if the property or money sought to be charged, and the amount of the claim, can be ascertained with reasonable certainty from the notice.

Upon receipt of notice of a claim of lien or charge, it shall be the duty of the person by whom it is received to retain in his hands, until the time prescribed by this Act for taking proceedings for enforcing the lien or charge has expired, a sufficient part of the money payable by him under his contract to satisfy the claim of the claimant.

In default of such retention be shall, subject to the provisions herein contained, be personally liable to pay to the claimant the amount of his claim, not exceeding the amount be should have retained, in the same manner and to the same extent as if the claimant had been employed by him personally.

All payments up to three-fourths of the contract price to be paid for the work, as defined by section two of this Act, made in good faith by the employer or owner to the contractor, or by the contractor to the sub-contractor, or by one sub-contractor to another sub-contractor, before notice in writing by the person claiming the lien or charge has been given to such employer or owner, contractor, or sub-contractor, as the case may be, of the claim of such person, shall operate as a discharge pro tanto of the lien or charge created by this Act; but this section shall not apply to any payment made for the purpose of defeating or impairing a claim to a lien or charge existing or arising under this Act.

An employer or contractor shall retain in his hands one-fourth part of the money payable under the contract to the contractor or sub-contractor until the expiration of thirty-one days after the completion of the work.

Every contractor who sublets any part of the work to be done by him under any contract shall immediately upon entering into any sub-contract give written notice to the employer, stating the name of the sub-contractor, the work to be done by him, the amount of the sub-contract, and the mode of payment.

If any contractor shall fail to comply with this provision, he shall be liable to a penalty not exceeding fifty pounds, to be recovered in a summary way under “The Justices of the Peace Act, 1882.”

Nothing herein shall be deemed to restrict any power or privilege by this Act conferred on a sub-contractor.

When notice has been given of an intention to claim a lien or charge under this Act, and the person to whom it is given does not pay, or make satisfactory arrangements for paying, to the claimant, the amount claimed, the claimant may recover the amount of the lien or charge from the owner, if liable, of the land or chattel, or the person by whom the money subject to the charge is payable.

Claims under this Act may be enforced, and questions and disputes between persons claiming a lien or charge under this Act and any other person or persons liable, or alleged to be liable, to pay any amount claimed, or otherwise interested in any property or money which may be affected by a lien or charge, or claim of lien or charge, and also between persons or classes of persons claiming a lien or charge, may be settled upon application in a summary manner to any Court having jurisdiction in the matter as declared by this Act.

Claims of lien or charge by workmen for wages, and all other claims of lien or charge, and all other matters arising under this Act if the amount in question does not exceed the jurisdiction of the Resident Magistrate’s Court in which the claim is brought, may be heard and determined and enforced in such Court.

All such claims of lien or charge or other matters, if the amount or value in question does not exceed the sum of two hundred pounds, may be heard and determined and enforced by a District Court.

The Supreme Court shall have jurisdiction in all matters arising under this Act.

An appeal may be made from the decision of a Resident Magistrate’s Court to a District Court or the Supreme Court, and from a District Court to the Supreme Court, in the same manner and subject to the same conditions and restrictions respectively as in the case of other appeals in civil proceedings from a Resident Magistrate’s Court and from a District Court respectively.

A special case may be stated by a Resident Magistrate or Justices of the Peace when sitting as a Resident Magistrate’s Court, for the opinion of the Supreme Court on a question of law, in the same manner as a special case may be stated by Justices under “The Justices of the Peace Act, 1882.”

Subject to the provisions of this Act, costs of any party or parties in any proceeding may be allowed in the discretion of the Court, and may be ordered to be paid by any other party or parties, or out of any fund or property under the control of the Court.

Proceedings in respect of a lien or charge shall be commenced by summons, which may be in any form prescribed by rules of Court or other practice of the Court.

Such proceedings must be commenced within sixty days after the completion of the work in respect of which the lien or charge is claimed. If proceedings are not taken within that time, the lien or charge shall be extinguished.

A statement of the claim shall be filed by the plaintiff with the proper officer of the Court, who shall thereupon issue the summons, which shall be directed to the person from whom payment is claimed, and also to every person who, if the claim were not made, would be entitled to receive the money claimed by the plaintiff.

If the relief sought is the enforcement of a lien or charge against land or chattels, or includes such relief, the claim must be verified by affidavit, filed with it.

A copy of the claim, and of the affidavit verifying it, if any, shall be served with the summons.

The claim must state—

and, in the case of a claim of lien, must describe the property sought to be charged.

The claim may be in one of the forms given in the Schedule to this Act, and, when it is required to be verified, shall be verified by the affidavit of the claimant, or some other person having full knowledge of the matters required to be verified, and the affidavit of an agent shall state that he has such knowledge.

The summons shall be served in such manner, and be returnable on such date, as the rules or practice of the Court may prescribe. In the absence of and until the making of rules on the subject by any Court, the practice of the Court in matters relating to summary applications to the Court shall, as nearly as possible, be followed.

Unless and until otherwise provided by rules of Court,—

Service of a summons shall be sufficient, if it is duly made three clear days before the date appointed for the hearing of the summons:

Service of a summons may be made by delivering a copy of it, together with a copy of the claim and affidavit of verification, if any, to a defendant personally, or to his authorised agent:

The Court may proceed to hear and decide the claim or dispute in the absence of a defendant, upon proof of personal service on the defendant or his agent, or upon proof that all reasonable efforts have been made to effect personal service on the defendant or his agent, and that copies of the summons, claim, and affidavit, if any, have been affixed in some conspicuous place upon the work in respect of which the claim or dispute arises.

If there is no dispute as to the amount which an owner, employer, contractor, or sub-contractor is liable to pay, but the question or dispute is limited to determining who are the persons entitled to receive payment of it, such owner, employer, contractor, or sub-contractor may, by payment into Court of the amount claimed, relieve himself and his property of all further liability in respect of such amount, and of any costs of the proceedings.

If the fact or extent of the liability of an owner or employer is in dispute, he may, by payment into Court of the amount claimed, or on giving security to the satisfaction of the Court, relieve the land or property upon which a lien is claimed from liability to the lien.

A Court, or a Resident Magistrate in the case of proceedings taken in a Resident Magistrate’s Court, may, upon the application of a plaintiff ex parte, make such interim orders for the custody or preservation of any property concerned as may be necessary for the protection of the interests of any party or parties interested, pending the decision of the Court upon the claim or dispute.

In addition to any punishment or penalty which a Court may be authorised to impose for the breach or contempt of its decrees or orders, any person who, after notice of any such order, disobeys it or acts contrary to it, shall be liable, in the discretion of the Court or Judge or Resident Magistrate, to a penalty not exceeding fifty pounds, and such penalty may be enforced by the Court or Magistrate, on application by the plaintiff or any other person interested in or affected by the claim in dispute, in the like manner and by the like process as a judgment of such Court or of such Magistrate could be enforced under the ordinary procedure applicable.

A claim for wages may include the claims of any number of workmen whose primary claim is against the same person, and who may choose to join in it. In any such case, if a lien is claimed, each claimant must verify his claim by affidavit, substantially in accordance with the form in the Schedule to this Act.

All payments made by an employer, contractor, or subcontractor to any person under and in compliance with an order of a Court having jurisdiction under this Act shall be a sufficient discharge to the person making the payment of his liability to pay the money to the person who, but for the order, would have been entitled to receive the money from him.

When a person entitled to a lien upon land intends to have recourse to the land be must register his lien against the land in the following manner:—

When the land is held under the provisions of “The Land Transfer Act, 1885,” a copy of the statement of claim of lien and affidavit, certified by the proper officer of the Court in which the original has been filed, shall be lodged in the office of the District Land Registrar of the district in which the land is situated, who shall thereupon register the claim of lien upon the title to the land in question in the manner in which caveats are required to be registered.

Notice of the claim of lien shall be given by the Registrar, by letter through the post-office, to the registered proprietor, and to every mortgagee or encumbrancee of the land.

The registration shall be deemed to have been made at the time of the day on which the claim of lien is lodged in the office.

When the title to the land is not held under the provisions of “The Land Transfer Act, 1885,” a claim of lien may be registered in the same manner as any deed or instrument affecting such land may by law be registered.

A claim of lien upon land shall not be liable to any stamp duty. A fee of one shilling and no more shall be payable upon the registration of a claim of lien.

A claim of lien upon land must be registered not later than thirty days after the completion of the work.

If the claim of lien is not registered within that time the lien shall be extinguished.

Until registration the land shall not be affected by lien or claim of lien.

In the event of the death of a person entitled to a lien under this Act, his right of lien shall pass to his personal representatives.

A lien may be discharged by a receipt signed by the claimant, or his agent duly authorised in writing, acknowledging payment of the amount claimed, and verified by affidavit and filed. The receipt shall be numbered and entered or recorded by the District Land Registrar or Registrar of Deeds in the same manner as other instruments; the fee shall be the same as for registering a claim of lien.

The registration of discharges of liens shall be at the cost of the person in making the claim of lien, unless the Court otherwise orders.

Any number of persons each of whom is entitled to a lien of the same order of priority may join in one proceeding to enforce their liens, and any action brought by any person to enforce a lien shall be taken to be brought on behalf also of every person entitled to a lien of the same order of priority who shall, before the date appointed for hearing the claim or any adjournment of the hearing, file in the proper office of the Court from which the summons issued a duly-verified statement of his claim of lien, indorsed with a request that the claimant may be added as a party to the action.

When separate actions are brought against the same person, or against several persons, in respect of work done under the same contract between the employer and the principal contractor, the Court may order them to be consolidated, upon such terms as may be just.

When proceedings have been commenced in more than one Court and are still pending in respect of separate claims of lien against the same person for work done under the same contract made by him as employer, such proceedings may be remitted to the Court in which proceedings were first instituted, if the amounts claimed in such remitted proceedings are within the limits prescribed by this Act, or otherwise within the jurisdiction of such last-mentioned Court, and in any other case may be remitted to some Court having jurisdiction to deal with the whole matter in question in such proceedings.

In the event of the death of the plaintiff, or his refusal or neglect to proceed, any other claimant of a lien of the same order of priority, who has filed his claim in the manner and within the time prescribed by this Act, may be allowed by the Court to prosecute the action on such terms as may be deemed just and reasonable.

If judgment is recovered against an employer or owner upon a claim of lien, the Court, Judge, or Resident Magistrate may direct a sale of the land or chattel to take place at any time after one month from the recovery of the judgment, and may direct such public notice, not being less than fourteen days, of such intended sale as may be deemed necessary.

When the lien is upon a chattel which is affixed to land, the Court may direct the sale of the chattel, and may authorise its removal from the land to which it is affixed.

When judgment is given for enforcing a lien, the Court may add to the judgment the costs of and incidental to registering the lien, as well as the costs of the proceedings.

The Court may direct the vacation of the registration of a lien, upon payment into Court of the amounts claimed in or under any proceedings instituted upon the lien, or upon such other terms as may be just.

When a sale of any estate or interest in land is directed under the provisions of this Act under a decision of a District Court or Resident Magistrate’s Court, the sale shall be made by the Sheriff in the Supreme Court district where such land is situated upon delivery to him of a copy of such decision, duly certified by the Clerk of the District Court or the Resident Magistrate’s Court, as the case may be, which shall be a sufficient warrant and authority to such Sheriff to effect and complete the sale in the same manner and with the same powers and authorities as he is required or authorised to effect a sale of land under a writ of sale pursuant to a judgment of the Supreme Court, including the execution of any instrument necessary to convey or transfer to a purchaser the estate or interest sold.

Any person alleging that he is prejudicially affected by a claim of lien or charge, or by registration under this Act, may at any time apply to the Court, Judge, or Resident Magistrate to have such claim or registration cancelled or the effect thereof modified, and such order may be made as may be just.

If any person vexatiously or without any reasonable grounds gives notice of claim of lien or charge, or registers any lien, such person shall be liable to pay to any person prejudicially affected thereby such compensation as a Court, Judge, or Resident Magistrate on a summary application may fix and determine.

In all proceedings under this Act the Court, Judge, or Resident Magistrate shall have power to award costs to any of the parties to such proceedings.

When a workman has done work upon a chattel in his possession by way of alteration or improvement, or for the purpose of imparting an additional value to it, so as thereby to be entitled to a lien upon such chattel or thing for the amount or value of the work done, then, in case the amount to which he is entitled remains unpaid for two months after it ought to have been paid, he may, in addition to all other remedies provided by law, cause the chattel in respect of which the lien exists to be sold by auction.

One week’s notice of the sale shall be given by advertisement in a newspaper published in the locality in which the work was done, or, in case there is no newspaper published in such locality, then in a newspaper circulating in the neighbourhood, stating the name of the person indebted, the amount of the debt, a description of the chattel to be sold, the time and place of sale, and the name of the auctioneer, and leaving a like notice in writing at the last or known place of residence (if any) of the owner, if he is a resident of the locality.

The proceeds of the sale shall be applied in payment of the amount due under the lien and the costs of advertising and sale, and any surplus shall be paid over to the Clerk of the Resident Magistrate’s Court at or nearest to the place of sale, to be held by him for the benefit of the person entitled to it.

Any affidavit required to be made under the provisions of this Act may be sworn before a Justice of the Peace, or before any other person authorised to take affidavits in the Supreme Court, and no fee shall be payable or taken for administering the oath.

Except to the extent otherwise mentioned in this Act, nothing herein contained shall be construed to impair or affect any right or liability accruing or accrued under the provisions of “The Workmen’s Wages Act, 1884,” or the right of any person to whom a debt is due for work done or materials furnished, to maintain a personal action to recover the debt against any person liable for it; and the judgment, if any, obtained by the plaintiff in any such action shall not impair or otherwise affect any lien or other right to which he is entitled under this Act.

Nothing in this Act contained shall be deemed to create or give to any person any right or remedy against any land vested in Her Majesty, or in the New Zealand Railway Commissioners, or in any body corporate, Board, or local authority procuring or undertaking the performance of any work for any public purpose.