Page 6 - MPA

Digby Luckhurst-Smith
Associate
Lynch Meyer Lawyers
Ph: 8223 7600
190 Flinders Street, Adelaide SA 5000 DLuckhurst-Smith@lynchmeyer.com.au
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Your Legal Questions Answered
‘WORKER’S LIENS’ – A TOOL TO GET YOU PAID
What is a Worker’s Lien?
The Worker’s Liens Act 1893 (SA) (Act) permits a contractor or sub-contractor to secure the value of the unpaid debt for building work performed, by way of a charge over the property where the work was carried out. The lien will prevent the owner from refinancing or selling the property until they have dealt with the debt. The lien is security over the monies owed by the owner to the head contractor.
Can I register a Worker’s Lien?
Like any process, there are important procedures, paperwork and timeframes to comply with to obtain the protection of a Worker’s Lien.
However, generally, the following key matters determine where and when the Worker’s Lien system may be able to be utilised by you:
• A lien can only be in respect of goods supplied or work done on land or buildings fixed to the land.
• Contractors and Subcontractors are the only parties permitted to lodge a lien (and they must be appropriately licensed).
• The lien can only extend to the debt for the portion of the
building work actually done and/or for the materials actually supplied and only to the extent that the owner has also not paid for that work done and/or the materials supplied.
• The lien must be registered at the Lands Titles Office.
• The land or building which may be subject to the lien must
not be owned by the Crown.
What happens if I register a Worker’s Lien?
Given the inconvenience caused to the owner, actions involving liens are usually resolved prior to full trial either by payment of the debt or other agreement.
If the matter is not resolved, the lien once registered, will remain on the title of the property until:
• A legal action to enforce the lien is finalised;
• The claim is resolved and a Withdrawal of Lien is registered; or
• If the owner or occupier deposits the amount claimed in the Notice of Lien into the Lands Titles Office or the Court.
How to lodge a Worker’s Lien?
Critical timeframes as set out in the Act need to be met when lodging a Worker’s Lien. For example, if a lien is lodged at the Lands Titles Office and Court proceedings are not commenced within 28 days of issuing the demand under the Act, the lien will lapse and there is no way to extend time. Accordingly, you must:
• Issue a final demand;
• Lodge the lien in the appropriate form with the Lands Titles Office;
• Within 14 days after lodging the lien with the Lands Titles Office, commence legal proceedings.
Technical Warning
Given the technical requirements and the strict time frames in registering a Worker’s Lien and commencing legal proceedings, we recommend that you seek legal advice prior to commencing the process. Importantly, if you get the process wrong, you cannot re-commence a second time without the leave of the Court which can be costly and won’t guarantee your right to re- register! If you have any queries about Worker’s Liens or need specific advice about a legal issue, call us.
Lynch Meyer offer free 30 minute phone consultation’s for MPA members, contact us Lynch Meyer Lawyers for all legal advice.